Boeksamenvatting bij International Criminal Law and Procedure - Cryer e.a. - 2e druk


Aspects of international criminal law - Chapter 1

 

Introduction

Public international law primarily regulates interactions between States. However, international criminal law is mainly concerned with the conduct of individual persons. If persons violate international laws, that imposes the obligation on States to penalise such actions. International criminal law has been rapidly developing following the Second World War. This means that the broader field of international law is increasingly focusing on protecting humans rather than only the interests and obligations of States. An exception to this is that the crime of aggression can only be committed by (high-ranking) State officials. The project of international criminal law is quite recent.. Especially the Tribunals for the former Yugoslavia and Rwanda established in the 1990s have been important for its case law. International criminal courts and tribunals courts do not possess universal jurisdiction. Their rules are not always homogeneous or consistent. This can be explained partially by the fact that international criminal rules derive from a variety of sources. War crimes, for example, have developed from international humanitarian law. Genocide and crimes against humanity have evolved together with international human rights standards. War crimes, genocide, crimes against humanity and the crime of aggression constitute the most important crimes on which international law focuses. These are also the crimes to which the jurisdiction of the International Criminal Court is limited. Nevertheless, other international crimes also exist. These include piracy, drug trafficking, torture and terrorism. These crimes are grounded in international law. But currently they are not within the jurisdiction of any international court. In addition to the law on said crimes, international criminal law also concerns the regulation of international investigations and prosecutions. An important principle in international criminal law is that of complementarity. This principle holds that international criminal law supplements rather than co-opts domestic criminal law systems. Therefore, domestic courts play an indispensable role in the functioning of international criminal law.

Alternative ideas of international criminal law

The notion of international criminal law has not always meant what it does now. Before the creation of the ad hoc Tribunals for the former Yugoslavia and Rwanda, the notion of international criminal law referred to what is now called transnational criminal law. Transnational criminal law is concerned with crimes that have concrete or potential influence across the borders of States. This body of law contains the laws of domestic jurisdiction that a State may use to proclaim and apply its own system of law in cases concerning crimes that are somehow transnational. Moreover, transnational criminal law includes collaboration between States on crimes and perpetrators with some transnational aspect and treaties that facilitate such collaboration. This can be done by providing rules on, among other things, extradition, legal assistance and the creation of certain crimes in domestic bodies of law. Thus, international criminal law has a narrower scope than transnational criminal law.

There are also other ways of looking at international criminal law. Another such way is based on the notion that international crimes are by definition those that concern the international order as a whole. In this perspective, the international community seeks to secure its norms or interests. This doctrine was explicitly included in the Rome Statute of the International Criminal Court. It is problematic, however, that this notion implies that the ideas about

criminal law of individual States and the international community are always congruous with each other. It is also not always the case that ideas about criminal law can be expressed in such a way that they can indicate what is and what is not international criminal law. Nonetheless, ideas about the fundamental values of the international community have been of influence on the development of certain areas of law. Still another interpretation of what constitutes an international crime holds that a State must be involved in the commission of the crime. Indeed, crimes of aggression can only be committed by State officials, and this may be the case with respect to other international crimes. However, apart from the crime of aggression the concepts of other international crimes do not necessarily require that they be committed by agents of a State.

Alternatively, international crimes may be said to be created entirely by international law, supranationally. This means that domestic law systems play no role in the development of international criminal law. One could say that there is support for this idea in the Judgement of the International Military Tribunal in Nuremberg. In this Judgement, it was stated that individual persons possess international obligations that override the domestic duties that States impose on persons. Furthermore, the unique penal system of international criminal courts and tribunals have been described as supranational criminal law. However, this term is inaccurate. Supranational law usually refers to law created by supranational organisations instead of treaty law or customary law. The International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court are not based on supranational arrangements.

International criminal law sources

The sources of international criminal law are those of international law. These are mentioned in Article 38(1) of the Statute of the International Court of Justice: international treaties, international custom, the general principles of law, and, as a secondary method of identifying the law, judicial decisions and teachings of the most eminent publicists. All of these sources have been applied by the ad hoc Tribunals. The International Criminal Court has its proper set of sources, according to the Rome Statute.

There are many treaties relevant to international criminal law. A few of these are the Hague Regulations of 1907, the Geneva Conventions and their Protocols of 1949 and the Statute of the International Criminal Court. By virtue of the United Nations Charter, the Statutes of the Tribunals for the former Yugoslavia and Rwanda also possess a binding nature. The application of treaties in international criminal law is mostly uncontroversial. In international humanitarian law, treaties and custom have been consistently applied to individual persons. This does not automatically mean, however, that persons who have violated international treaties are also criminally liable. In any case, a treaty can only form the basis of a finding of individual criminal liability if that treaty was intended for that purpose. Treaties per se may function as the basis of an international criminal law. It is not required that such laws are simultaneously supported by other sources of international law such as custom.

The International Criminal Tribunal for the Former Yugoslavia has established that when its own Statute cannot answer a legal question, the Tribunal may look to customary law and general principles to regulate a matter. Customary international law comprises those laws that spring from from the practice of States together with their opinio juris. Opinio juris is the belief held by States that such practice is commanded by or in conformity with law. Treaties can sometimes represent custom. Except where this is the case, problems may arise in attempts to demonstrate what is unwritten law. Moreover, the notion that custom can form a basis for a finding of criminal liability has been criticised with reference to the idea that custom is often too ambiguous to be a legitimate basis for criminal liability. This idea can be connected to the principle of nullum crimen sine lege. This principle holds that a person can only be found guilty for a crime that was already a crime by law when that person committed it (see below). Nevertheless, the International Military Tribunals at Nuremberg and Tokyo and the ad hoc Tribunals have all considered that custom may establish criminal liability.

In some cases, treaties and custom may not unambiguously establish what is the law. Here, the ad hoc Tribunals have made use of the general principles of law by considering rules from domestic bodies of law. To take into account one such domestic system is insufficient, however. This is because the general principles of law are those that are shared by all of the world's principal legal systems. Due to their general nature, general principles are mostly used only as a last resort. They cannot always be identified across the major domestic legal systems. In addition to treaties, custom and general principles, a subsidiary source of international law are previous decisions and scholarly writings. According to its Statute, the International Criminal Court may use previous Judgements. The ad hoc Tribunals have had recourse to international and domestic case law as well. Scholarly writings have been very important in Judgements, but it should always be ascertained that legal writers from several traditions are included. Also, it should be guaranteed that their writings state what the law is, not what it should be.

International criminal law and other bodies of international law

International criminal law relates to several other bodies of international law, including human rights law. The development of international criminal law and human rights law was spurred after the Second World War, as efforts to prevent the recurrence of the committed atrocities. Similarly, the ad hoc Tribunals in the former Yugoslavia and Rwanda were established in the context of mass-scale human rights violations. Human rights requirements are imposed first and foremost on States. Because States do not always abide by such responsibilities, international criminal law is an important means of supporting the principle of State responsibility. Moreover, international human rights treaties were of great influence on the development of the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. These ad hoc Tribunals have also employed human rights instruments and human rights jurisdiction in their decisions. However, the bodies of international criminal law and human rights law should not be conflated. While most violations of the former would also constitute violations of the latter, this is not the case the other way around. Current international criminal courts and tribunals do not have mandates to prosecute any and all human rights violations. Also, States do not always opt to criminalise human rights violations. Furthermore, international crimes are often narrowly interpreted, favouring the accused. Human rights law, by contrast, is often broadly constructed.

In addition to its connections with human rights law, international criminal law also shares similarities with international humanitarian law. International humanitarian law seeks to defend victims of armed conflict. Many fields of international humanitarian law have been criminalised. This means that they also form part of international criminal law. As with human rights law, principles of humanitarian law cannot always automatically be included in international criminal law.

International criminal law is also connected to the notion of State responsibility. International criminal law is concerned principally with the liability of natural, individual persons and not States. However, the liability of a State agent may sometimes result in simultaneous State liability. Thus, States as such can also be internationally responsible. Importantly, the question whether a crime can be attributed to a State was dealt with by the International Court of Justice in the Bosnian Genocide Case. Furthermore, it has been asked whether or not a State can be criminally liable. This raises some conceptual problems, such as the determination of the mens rea (guilty mind) of a State, and the question how a State can be criminally punished. Thus far, no international tribunals or courts have found a State specifically and exclusively criminally liable.

The relationship between international law and criminal law

International criminal law is comprised of two legal bodies: international law and criminal law. The two are mostly reconcilable. However, the characteristics of one sometimes prove problematic with reference to those of the other. For example, international law demands constant reference to and interpretation of its own sources. Criminal law is more concerned with substantive rules. These must often be more concrete and understandable than the rules of international law practically are. However, as has been stated above, international criminal law is now linked to several other areas of international law.

Additionally, several essential principles of domestic criminal law systems are currently part of international (human rights) law. These include the principles of nullum crimen sine lege and nulla poena sine lege. The former entails the concept that the law cannot be applied retro-actively, and the idea that the law must be clear. Both of these aspects aim to guarantee that the law is reasonably knowable, so that everyone may plan their actions according to the law and not transgress it. International criminal law often remains unclear and underdeveloped. Here, then, the principle that a person can only be found liable on the basis of a pre-existent prohibition is very important. The principle has been included in the International Covenant on Civil and Political Rights. Nevertheless, especially the International Military Tribunals at Nuremberg and Tokyo Judgements have been criticised for having applied retroactive law. These Tribunals responded to such allegations by stating that the greater injustice would have been to not punish certain perpetrators. The nullum crimen principle demands that a treaty applies to a specific armed conflict, not that it mirrors custom. A narrow interpretation of the nullum crimen principle is nullum crimen sine lege scripta: no law without scripted law. On the basis of this interpretation it has been argued that custom, as unwritten law, cannot on its own establish criminal liability. This suggestion has not been made in international law, however. In international law, the opposite view has been taken. Exorbitantly ambiguous provisions may, nevertheless, violate the principle of nullum crimen sine lege. In keeping with the principle, the crimes under the jurisdiction of the International Criminal Court have been rather precisely defined in its Statute and in the Elements of Crimes.

The principle of nulla poena sine lege is connected to the principle of nullum crimen. The principle of nulla poena demands that criminal provisions include exact punitive measures. Although customary law may contain the death penalty, many States have voiced their opposition to this possibility. Current international Tribunals cannot sentence persons to the death penalty.

The aims of international criminal law - Chapter 2

 

Preliminary remarks

Criminal law is not inherently good or bad. Rather, it is a tool meant to reach certain ends. Such ends may also be achieved by other means. It should be borne in mind that a claim of criminal jurisdiction is one of the most forcible actions that can be taken against persons. The enforcement of penalties involves some infringement on a convicted person's liberty and/or property. It has been argued that the justifications of international criminal law and domestic criminal law differ. Generally, the former is concerned with atrocities of a much wider scale than those covered by the latter. Moreover, certain aims are linked to international criminal law but not to domestic criminal law. These include, for example, recounting a conflict's history, looking at the differences between responsibility borne by individuals or by groups, accommodating societies, and supporting the development of domestic judicial systems. Furthermore, the members of the international society are not those of domestic societies, and vice versa. However, as has been stated, the enforcement of international criminal law usually occurs through domestic systems. Thus it can be debated whether the objectives of punishment should really diverge between international criminal law and domestic criminal law. The increasing prevalence of criminal trials can be linked to the widespread dissatisfaction with extrajudicial executions and ignoring perpetrators. Moreover, the justifications for punishment at both the international and the municipal level are sometimes said to contradict with other such justifications.

The objectives of international criminal justice

Most fundamentally, there exist two ways by which punitive measures are justified. There are teleological approaches, which are prospective in their outlook. There are also deontological approaches, which concentrate on the specific crime. Commonly, a mixture of these approaches is used to justify criminal trials. More specifically, punishment at international courts and tribunals has been defended with reference to several objectives. Some of these are described below.

One of these is retribution. Building on Kant, retributive theories emphasise the need to punish those who have transgressed the values of society because such persons deserve punishment. Retributive theories are thus not concerned with the potential benefits of deterrence. Rather, retributive theories focus on the independent actions of the perpetrators and thereby claim to respect perpetrators as full and autonomous persons. This is done by means of the criminal justice system. Thus, retributive theories are not based on the desire for vengeance. In several International Criminal Tribunal for the former Yugoslavia Judgements, it has been considered that retribution articulates the condemnation by the international community of the perpetrator's crimes. It has been argued that retributive punishment must be proportional to the wrong done. However, it has also been questioned whether this would be possible in the case of international crimes. This is because international crimes are usually committed on a massive scale. Differences may be recognised between ordinal and cardinal proportionality. The former determines proportionality with reference to how severe a crime is when compared to other crimes included within the same criminal justice system. The latter stipulates absolute minimal and maximal punishments for a crime. There has also been criticism of exclusively retributive approaches, however. This criticism argues that in some cases punishment comes only at very high costs or may be senseless.

Another objective of punishment at international courts and tribunals is deterrence. The philosophical underpinnings of deterrence theories are grounded in utilitarianism. More specifically, the utilitarianism of Jeremy Bentham is important here. He emphasised the value of the idea that prosecution and punishment would deter future commissions of crimes. There is also a prime drawback of utilitarian justifications of deterrence, however. This is that utilitarianism allows for (or even promotes) disproportionately severe punishments, such as also punishing innocent family members of the perpetrator. Furthermore, adherents of Kantian retributivism could say that criminal punishment as deterrence risks using people as means for achieving lower crime rates rather than seeing people as ends in themselves. This would be in violation of their inherent dignity. Supporters of retributivism hold that people always act rationally, considering the costs and advantages of their doings. However, this is not always the case. The International Criminal Tribunal for the former Yugoslavia has repeatedly asserted its limited support for deterrence as a defence of punishment. It has done this together with its desire that international courts and tribunals will come to promote respect for rather than fear of the law. The notion of deterrence is also present in the Preambulatory Clauses of the Rome Statute of the International Criminal Court. There exists limited evidence that the enforcement of international criminal law deters the commission of international crimes.

An alternative utilitarian defence of punitive measures is incapacitation. This idea argues that international criminal law can prevent persons who have already been convicted of commissioning more crimes. It is linked to the notion of individual deterrence. However, incapacitation is more controversial and has been less potent than the deterrence doctrine. One reason for this is that it is inherently uncertain. In other words, it cannot be known precisely who is likely to reoffend and who is not.

Additionally, punishment can be justified by rehabilitation. This is the idea that perpetrators must be punished so that they can be restored. This theory is supported by human rights advocates. Nevertheless, it is not very popular within the realm of international criminal law. This is because it is often held that perpetrators should not benefit from the operations of international criminal law institutions. Nevertheless, the International Criminal Tribunal for the former Yugoslavia has repeatedly moderated the punishment of those who pleaded guilty so that they can be rehabilitated.

Lastly, another theory is that of condemnation or education. This theory has more support than rehabilitation. It holds that the activities of institutions of international criminal law are a chance to communicate with victims, perpetrators and society and to declare the wrongfulness of the crimes committed. Such acts of communication and denunciation include perpetrators with the purpose of ensuring that they conceive the wrongfulness of their deeds. However, the idea of engagement with perpetrators has also been criticised with reference to the likely futility of such attempts. There is also the idea that, as has been the case with the crime of genocide, it matters what legal label becomes attached to a wrong done, and thus expressed. This is connected to the condemnation/education justification of punishment.

Broader objectives of international criminal justice

Besides the objectives mentioned above it may be suggested that international criminal law has some additional, broader objectives. A prominent idea in this regard is that international criminal law can function as a means of ensuring that victims feel that justice has been done. Both testifying before a court and observing that perpetrators are prosecuted and punished may be valuable. However, victims may not always see the actual perpetrators of the specific crimes committed against them. This is because international criminal law tends to exclude those outside the highest positions. Moreover, empirical evidence concerning the worth for victims of testifying is ambiguous.

Another aim is recording history. It has been suggested that the evidence gathered in criminal proceedings may last and serve post-conflict communities as narratives. The ad hoc Tribunals, in certain instances, clearly intended to write history. But in other cases they explicitly declined to do so. The idea that a court should endeavour to tell the truth can also be criticised. This can be done by arguing that it may be a problem that a court would thus engage with highly political questions. Also, it could be argued that documenting an entire history would go beyond the scope of a criminal trial. Nevertheless, including aspects of the context of crimes may be essential for the purpose of determining one's individual criminal responsibility and liability. It is problematic here that trials do not, of course, normally arrive at the truth in a clear-cut fashion. Rather, they can be abused by parties to mold history in their favour.

Doing justice to victims and recording history are also part of another objective of international criminal justice. This is to contribute to post-conflict reconciliation of the community and the development of lasting peace. Recent trials in Latin America provide some limited support for this idea. However, there is a lack of evident, solid proof in this respect. The United Nations Security Council has various times acted with a view to establishing a harmonious relationship between criminal justice and peace. With regard to the former Yugoslavia and Rwanda, it considered that the establishment of criminal tribunals would contribute to restoring peace. In some cases the International Criminal Tribunal for the former Yugoslavia has decreased sentences if an accused's trial contributed to the development of peace. In other cases it has declined to do so. It is too early to determine what effect the activities of the International Criminal Court have on peace processes. Although there are suggestions that the Court has deterred crimes in the Democratic Republic of the Congo, it has also been argued that the likeliness of prosecutions will only encourage parties to continue hostilities.

Rather than international criminal law generally, international trials have also been praised. These arguments focus, primarily, on the notion that international trials are inherently more separated from wrongdoings than domestic proceedings. This would be because judges are international and often geographically removed from crime scenes. They would therefore not be likely to be very politically biased or manipulated. Additionally, it has been suggested that international judges are most competent to function as judges of international crimes. This argument has two bases. Firstly, it is suggested that international rather than municipal judges represent the international community. The international community is itself affected by the commission of international crimes. Secondly, it is suggested that international judges are better versed in international criminal law than domestic judges. Another argument is that international courts and tribunals can better conduct investigations and prosecute transnational crimes than municipal authorities. The capacity of international courts and tribunals to investigate and prosecute depend, of course, on their jurisdiction. However, these ideas have also been challenged. It has been alleged that particular judges at international courts or tribunals were biased. Also, it has been argued that geographical separation is not an advantage but a drawback, because victims are obstructed from seeing (and possibly engaging in) the proceedings.

Criticism of international courts and tribunals

Thus, the project of international criminal law may serve many purposes. However, it has also been criticised in various ways. For example, the International Criminal Tribunals for the former Yugoslavia and Rwanda as well as the International Criminal Court have been condemned for being very costly projects. Most international criminal courts and tribunals, moreover, are geographically separated from the crime scenes under their jurisdiction. This entails that victims often cannot access them. In addition, resistance to the work of international criminal courts and tribunals often exists at the local level. The local level may be biased against the involvement of such institutions. Victims or their relatives are also not likely to see the perpetrators of the particular crimes against them tried. This is because international criminal law tends to focus only on the most high-ranking perpetrators. Rather, it has been alleged that the creation of such institutions mainly serves the conscience of the international community. This would be the case with respect to those instances where the international community failed to prevent mass atrocities. More broadly, it has been doubted whether the concept of international criminal law is able to adequately address the atrocities with which it is concerned. These questions have been addressed inter alia by Arendt and Koskeniemmi. Also, international criminal law generally may be criticised on the ground that it legitimises those who establish its institutions. In other words, high-level servants of the States that create tribunals and courts can escape prosecution. Another critique is that international prosecutions are always discriminative. Some of those who have commissioned great wrongs are indeed punished by international criminal institutions. But others equally worthy of punishment escape prosecution. This situation undermines the deterring effect of international criminal law. More radically, it has been asserted that international criminal law is a Western project that is enforced onto non-Western communities. More specifically, some assert that the enforcement of international criminal law is a form of neo-colonialism. In this argument, international criminal law mainly targets comparatively weak States. However, it should be pointed out that certain treaties relating to international criminal law have been ratified by almost all States. Also, the recognition of the wrongfulness of genocide, war crimes and crimes against humanity is not necessarily limited to specific cultures. Moreover, some African States on their own initiative requested that situations on their own territory be referred to the International Criminal Court. Finally, it could be countered that the selectivity argument is decreasingly applicable. Most fundamentally, some international criminal justice may be better than none.

Jurisdictional issues - Chapter 3

 

Preliminary remarks

Jurisdiction is the authority of a State to manage affairs according to its laws. Thus, carrying out jurisdiction entails claiming a sort of sovereignty. States do, however, exercise jurisdiction not only within their territories (intraterritorially) but also outside of their territories (extraterritorially). In this latter situation, claims of sovereignty overlap. The following section discusses questions of jurisdiction that involve international crimes.

Kinds of jurisdiction

Broadly, three kinds of jurisdiction may be claimed: adjudicative, legislative and executive. The concept of adjudicative jurisdiction refers to the power of municipal courts to enforce the laws of the State and to give judgements. Adjudicative jurisdiction may be exercised, justly or unjustly, extraterritorially. This means that courts rule on extraterritorial affairs and thus interfere in another State's jurisdiction.

Legislative jurisdiction is a State's right to enact laws. In practice, States sometimes pass laws that claim to regulate conduct outside of their territory. Due to the commonly accepted rule of non-intervention in international law the legitimacy of such laws is questionable. In criminal law, legislative and adjudicative jurisdiction tend to have more or less the same scope.

Executive jurisdiction is the most meddlesome or intervening form of jurisdiction. It involves the right to claim jurisdiction by coercion, such as arrests or by embarking on searches. The Lotus case is considered authoritative on the question of executive jurisdiction in international law. This case affirmed that States cannot exercise their executive jurisdiction in the territory of other States. This principal was acknowledged by Israel in the Eichmann case, which involved the abduction by Israel of Adolf Eichmann from Argentina to stand trial in Israel. The separation of the concepts of executive and adjudicative jurisdiction, however, means that a court may rightfully pass judgements over illegally arrested persons. This is the meaning of the principle male captus bene detentus. Exceptions to this principle may be made if the arrest of the accused involved, for example, flagrant human rights violations.

Conceptual issues

In the said Lotus case, it was considered that States may exercise jurisdiction extraterritorially unless international law specifically prohibits this. The better view, however, is that for the exercise of jurisdiction there must be identified a positive reason. This position is supported by State practice.

States can transfer jurisdiction to other States. An example hereof are transnational crimes-related treaties. In such treaties States may grant authorisations or obligations to other States to make criminal particular conduct on the basis of comprehensive jurisdictional grounds. This can involve prosecution or extradition. It is sometimes said that this situation amounts to universal jurisdiction. But this is not wholly the case, because the passing of jurisdiction is still subject to the terms of the relevant treaty. However, if the terms of the treaty mirror customary law, then they may amount to universal jurisdiction. But it may be quite difficult to prove the existence of custom.

There exist four conventional forms of jurisdiction. In this discussion they are ordered from the strongest to the weakest heads of jurisdiction. Claims of jurisdiction based on the territoriality principle are usually the most accepted. The territoriality principle means that a State possesses jurisdiction over anything that occurs on its territory. It is not necessary that all stages of the crime, from planning to completion, occur on the State's territory for it to exercise jurisdiction; any part of the crime suffices. Objective territoriality means that the crime is committed on another State's territory but nonetheless has effect on the territory of the State exercising jurisdiction. Subjective territoriality means that the crime is committed on the territory of the prosecuting State. With regard to international criminal law, States are often hesitant to prosecute persons on the basis of the territoriality principle. Another problem is that such trials, if they do occur, are not always fair.

Another head of jurisdiction is the active nationality/personality principle. This is the right of a State to pass laws that apply to its nationals who are not on its territory. This principle is frequently applied rather broadly. In keeping with the nullum crimen sine lege maxim, it is often demanded for the nationality principle that a person was a national of a given State when that person committed the crime. However, in some cases this principle has not been followed. Sometimes States have claimed jurisdiction on the basis of the nationality principle of a person who had acquired the relevant nationality ex post facto. It is permissible under international law to exercise jurisdiction on the basis of the nationality principle with respect to persons permanently outside the State's territory. In international criminal law, the nationality principle is especially relevant to armed forces that are abroad. Nonetheless, it also applies to civilians. The question who is a national of a particular State is usually answered by that State. One test was identified in the Nottebohm case for the existence of a link between a person and a State for the determination of nationality. This is that the person must have a genuine affiliation with the State. The Nottebohm case test has been criticised. But the fact that international criminal courts and tribunals often claim a broad jurisdiction implies that the justification of the nationality principle will often not be an issue. One general critique of the nationality principle is that States may be too charitable in punishing their own nationals for war crimes.

The passive personality principle can be distinguished from the active personality principle. The former enables the exercise of jurisdiction by a State against whose nationals crimes were committed while such nationals were not on the territory of their State. Exercising jurisdiction thus is contentious. In the Lotus case it was considered that the passive personality principle is not supported by customary international law. However, the United States of America has been increasingly drawing on this principle with regard to its trials of 'terrorists.' There are at least two general critiques of the passive personality principle. Firstly, it has been suggested that it favours potent States at the injury of less potent States. Secondly, exercising the principle could mean that persons are subjected to different jurisdictions and the laws of various States at the same time. Of course, it cannot reasonably be assumed that a person would be aware of the rules of many different municipal criminal law systems at the time of the commission of a crime. This latter objection is not relevant with respect to international criminal law. This is because the laws of international criminal law apply in many States. Indeed, international criminal law allows for the prosecution of crimes commissioned against the nationals of States that are allied belligerents. As with the active personality principle, it is generally held that the person must have been a national of the given State at the time when the crime was committed against that person. The Eichmann case shows that in international law this requirement is not very strict.

The protective principle, lastly, means that States may exercise protective jurisdiction over extraterritorial matters that undermine their security. Israel claimed protective jurisdiction in the Eichmann case. Nevertheless, virtually all of its uses would overlap with one or more of the mentioned jurisdiction principles.

Universal jurisdiction

Universal jurisdiction is the least agreed-upon head of jurisdiction in international law. It entails jurisdiction asserted over a crime without regard to territory, the nationality of the suspect or victims or any other specific connection linking the crime and the State asserting jurisdiction. Universal jurisdiction is sometimes entirely negated. But the better view is that States can claim jurisdiction over genocide, torture, crimes against humanity and war crimes, as defined by custom. Conceptually, universal jurisdiction cannot be asserted over piracy. This is because piracy by definition occurs only on the high seas, which cannot be claimed by any State. Although jurisdiction generally is used by States in furtherance of their own well-being, the idea of universal jurisdiction is, contrarily, that international crimes have a bearing on all States. Universal jurisdiction may be seen to potentially complement the other heads of jurisdiction. This is because other heads of jurisdiction may not always be adequate in allowing for trials relating to mass atrocities. It is not clear, however, what the prerequisites are for the exercise of universal jurisdiction – if they exist at all. Neither is it clear whether there exists an obligation to act on such jurisdiction.

Two variants of universal jurisdiction have been identified. One is pure universal jurisdiction or universal jurisdiction in absentia. Universal jurisdiction in absentia means that a State exercises jurisdiction over a suspect who is not on that State's territory. The other variant is conditional universal jurisdiction or universal jurisdiction with presence. In this case, the State asserts universal jurisdiction over a suspect who is on that State's territory. This distinction has gained some acceptance. However, the better view is that it does not exist. In practice, States have mostly limited themselves to asserting conditional universal jurisdiction. This may be explained by the fact that asserting pure universal jurisdiction is not always politically prudent. Thus, the distinction is a political rather than a legal one. In an effort to strike a compromise, the Institut de Droit International has suggested that States may assert pure universal jurisdiction only in the phases of investigation and demands for extradition. However, the idea that adjudicative jurisdiction may thus be divided between trial and extradition can be challenged.

The idea that universal jurisdiction could be used to punish those responsible for war crimes arose during the Second World War. Indeed, some of the post-Second World War cases were grounded in universal jurisdiction. The prosecution of war crimes on the basis of universal jurisdiction was supported by the United Nations War Crimes Commission (not linked to the international organisation). All of the four 1949 Geneva Conventions are also relevant in this regard. They contain provisions that oblige all High Contracting Parties to search for and bring to trial persons who have allegedly commissioned or ordered to be commissioned grave breaches of the Geneva Conventions. Thus, the grave breaches regime of the Geneva Conventions practically very much resembles the notion of universal jurisdiction. Perhaps the most well-known case in which universal jurisdiction was invoked was the Eichmann case. The Israeli District Court noted that, in the (then) absence of an international criminal court, States have the right or duty to bring those who have committed crimes against the law of nations to trial. The jurisdiction to do so, the District Court affirmed, is universal. Following the Eichmann case, universal jurisdiction came into disuse until Israel demanded the extradition from the US of John Demjanjuk in 1985. After this a few more prosecutions followed that concerned crimes committed in the Second World War. The armed conflicts in Rwanda and the former Yugoslavia resulted in some cases in which persons were prosecuted on the basis of conditional universal jurisdiction. The Pinochet case is also notable for being a case of universal jurisdiction.

In 1993 Belgium altered its grave breaches laws to include pure universal jurisdiction over crimes against humanity and genocide. Proceedings were initiated but never concluded against inter alia Ariel Sharon, Fidel Castro and Yasser Arafat. The proceedings against Abduldaye Yerodia Ndombasi resulted in Belgium being challenged before the International Court of Justice by the Democratic Republic of the Congo. The Democratic Republic of the Congo argued Belgium had operated unlawfully by claiming universal jurisdiction over Mr Yerodia. The Democratic Republic of the Congo also stated that, because Mr Yerodia was a Foreign Minister, he enjoyed immunity. Belgium had allegedly ignored this immunity in initiating proceedings against him. After some time the Democratic Republic of the Congo abandoned its objections to Belgium's universal jurisdiction. The International Court of Justice, in several dissenting and separate opinions, was in profound disagreement over the questions relating to the validity of universal jurisdiction. This case is viewed by some as signalling the demise of universal jurisdiction.

In 2003, Belgium succumbed to pressure from the United States of America to limit its universal jurisdiction legislation. This occurred after the Yerodia case and the initiation of proceedings against several high-level American politicians for their involvement in the First Gulf War. Although the Belgian legislation is not as broad as it was, it still contains elements of universal jurisdiction. Moreover, it is still licit to try someone in absentia, i.e. under pure universal jurisdiction. After 2003, however, Belgium pursued the extradition of Hissene Habré, the ex-leader of Chad. This happened on the basis of a complaint filed before the relevant act had been altered. Another important example of a State that has been decreasing its use of universal jurisdiction is Spain. The first State to demand that the United Kingdom extradite Pinochet was Spain. Spain has also indicted – and, once, convicted – several junta members of Latin American States. Since 2000, however, several cases have required that a Spanish exercise of universal jurisdiction can only be made if such jurisdiction is supplementary. In other words, Spain can only prosecute if the territorial State does not attempt to prosecute. This limit is not required by international law. Universal jurisdiction was reaffirmed in subsequent cases. However, Spain has acted on American pressure by taking steps to decrease the scope of its jurisdiction to cases in which there is a link between the crime and Spain.

Several other States, including New Zealand, allow for prosecution on the basis of universal jurisdiction by not demanding any requirements such as residency or nationality. Some of these States did so after having become parties to the Rome Statute of the International Criminal Court. Germany, Canada and the United Kingdom all have legislation that possesses elements of universal jurisdiction. Other States which have at least acknowledged that universal jurisdiction with respect to international crimes exist or have also based cases on it include the Netherlands, Trinidad and Tobago, the United States of America and Peru. In 2008, a declaration of the African Union, which then included 53 States, also affirmed the existence of universal jurisdiction, and condemned abuse of it.

There are also some international(ised) criminal courts and tribunals that have recognised the possibility of States asserting universal jurisdiction over international crimes. These include the ad hoc Tribunals for the former Yugoslavia and Rwanda as well as the Special Court for Sierra Leone. The European Court of Human Rights has done so at least with respect to genocide. The Inter-American Commission on Human Rights has done the same with respect to crimes against international law. Pure universal jurisdiction may still be contested. However, conditional universal jurisdiction is supported by many courts and case law.

There are several practical challenges to universal jurisdiction. One of these is that universal jurisdiction in itself does not mean that States with other forms of jurisdiction have the legal obligation to cooperate with the State seeking to exercise universal jurisdiction. Such cooperation is based on treaty responsibilities or friendly inter-State relationships. Therefore, it may be understandable that in several of the most successful trials grounded in universal jurisdiction the territorial State helped or at least did not hamper the prosecuting State. Such cooperation exists in, for example, allowing for on-the-ground visits and investigations and facilitating the giving of testimonies. As with other prosecutions in international law, trials based on universal jurisdiction may experience cross-cultural and translation difficulties. There may also occur forum-shopping. In this situation, non-governmental organisations or victims can aim to trigger the initiation of proceedings before multiple courts and tribunals (forums). If, indeed, more than one forum initiates proceedings against the same suspect for the same facts, this can violate the ne bis in idem principle. This principle holds that a person cannot be tried or convicted more than once for the same facts. The ne bis in idem principle is contained in, for example, the Rome Statute of the International Criminal Court. However, it does not exist formally between States. This means that prosecutions on the basis of universal jurisdiction, as other prosecutions, may sometimes risk violating the ne bis in idem principle.

In addition to these practical challenges, universal jurisdiction has also been questioned on the basis of various policy-oriented or political arguments. For example, it has been argued that universal jurisdiction can be undesirable in post-conflict societies in which amnesties have been granted to prevent the prosecution of some. If another State then comes to prosecute such persons regardless of their immunities, on the basis of universal jurisdiction, this may be a politically very sensitive move. Most international crimes are erga omnes obligations. Therefore, the interest in prosecuting them is shared by all States. Moreover, municipal amnesties do not legally hamper other States from prosecuting. Another political concern is that universal jurisdiction is often invoked by the more powerful States. Such States may also put pressure on less powerful States to cooperate by, for example, extraditing suspects. This implies that the application of universal jurisdiction may be a highly political and selective instrument. Relatedly, it has sometimes been alleged that the assertion of universal jurisdiction is an extension of the neo-colonial project. However, there exists no clear evidence that supports such arguments. Neither is there clear evidence that universal jurisdiction more than other heads of jurisdiction is used especially for malicious political purposes. Furthermore, universal jurisdiction to date has focused on prosecuting persons who had not been prosecuted by States with nationality or territorial jurisdiction. Generally, however, discriminate enforcement of international criminal law continues to be a difficulty, irrespectively of what head of jurisdiction is used.

Domestic trials of international crimes - Chapter 4

 

Preliminary remarks

There now exists a number of international criminal tribunals and courts. However, international crimes are predominantly meant to be tried at municipal institutions. One of the prerequisites for the exercise of jurisdiction for the International Criminal Court, moreover, is that municipal courts are either unwilling or unable to prosecute. Further, national prosecutions are also frequently seen as a better choice than international institutions from sociological, practical, political and legitimacy-related perspectives. In spite of the unprecedented mass atrocities of the Second World War, however, domestic trials of international crimes are still rare. Thus, the growth of international criminal law may be seen as an answer to widespread domestic impunity.

Domestic prosecutions

As has been stated, the most important crimes in international criminal law are genocide, crimes against humanity and war crimes. Of these, war crimes have been prosecuted by domestic authorities the longest and most frequently. Some of the first war crimes trials date back to the nineteenth century, including the American Civil War and the Anglo-Boer Wars. There were several war crimes trials following the First World War. The Second World War, however, generated the most domestic prosecutions, both under international and domestic law. In addition to the thousands of trials in Germany, proceedings also took place in other European States, among which were France, Austria, the Netherlands, Italy, and the States of the former Eastern bloc. Some of the most famous French trials were against Paul Touvier, Maurice Papon and Klaus Barbie. Outside of Europe, domestic war crimes trials related to the Second World War were also conducted. Prominent among them is the Eichmann trial in Israel described above. Jurisdictional questions addressed in this case were also considered in the extradition of John Demjanjuk from the US to Israel and later to Germany. In Canada, the Finta trial stands out for having introduced very narrow material and mental requirements for war crimes and crimes against humanity. Another remarkable case is the Polyukhovic case in Australia. In both the Finta and the Polyukhovic trials, the suspects were acquitted. Conflicts that followed the Second World War led to only a few domestic trials. Among these were the US court martials relating to the My Lai bloodbath in Vietnam.

Only in the 1990s did national prosecutions relating to war crimes increase, with the simultaneous resurgence of attention to international criminal law and the establishment of the ad hoc Tribunals for Rwanda and the former Yugoslavia. Indeed, domestic prosecutions also increased in Rwanda and the States that had constituted Yugoslavia. In Rwanda, where the amount of suspects waiting for the inception of their trials was extensive, the criminal justice system was altered and customary gacaca courts were instituted in 2001. The Dayton Agreement ensured that the International Criminal Tribunal for the former Yugoslavia would possess primary jurisdiction over international crimes committed in the former Yugoslavia. Later on, the relationship between the Tribunal and domestic authorities improved. This meant that the Tribunal began to refer to the domestic authorities cases in which the Tribunal had not indicted anyone. In Bosnia and Herzegovina, the Tribunal stopped indicting people in 2004, when municipal authorities began taking on new cases. Under the completion strategy of the International Criminal Tribunal for the former Yugoslavia, cases for which the Tribunal has issues indictments can currently be transferred to municipal authorities. This has occurred in Croatia, Bosnia and Herzegovina and Serbia. Moreover, trials of crimes committed in Rwanda and the former Yugoslavia have also been undertaken in third States. The Tadić case, for example, began as a domestic case in Germany before it was referred to the International Criminal Tribunal for the former Yugoslavia. The prosecution of international crimes in third States is a wider trend that has also occurred elsewhere. In some States, however, deportation and denaturalisation have been preferred over prosecution.

There are also 'inter-nationalised courts': municipal courts established with international help with the purpose of prosecuting international crimes. Although municipal authorities are often very reluctant to prosecute their nationals for the commission of international crimes, there have been a few exceptions to this tendency. These include a great number of cases in West and East Germany following the Second World War, prosecutions in Rwanda and the former Yugoslavia and American and British courts martials for crimes committed in Iraq. The political will to put persons on trial is essential. Risks may be involved for a State pursuing prosecutions, as trials may, embarrassingly, come to question the conduct of the State (as happened in the Barbie case). In addition to selectivity, other challenges to legality include legal ambiguity, retroactivity, and very lengthy time periods between the commission of the crime and the trial. Municipal courts are also sometimes unsure about the use of international law.

The responsibilities of States to take to court or extradite

The domestic responsibility to prosecute or extradite suspects of international crimes is rooted in several sources. This aut dedere aut judicare principle is included in various treaties. These include the four Geneva Conventions and their Additional Protocol I relating to grave breaches of these documents, the Convention on Enforced Disappearances, the Torture Convention of 1984, and numerous treaties that concern 'terrorism.' These treaties are said to permit or even require States to assert universal jurisdiction. But this is not always the case. The Genocide Convention of 1948 contains a commitment on the part of the States Parties to preclude and penalise genocide. However, it it does not explicitly include the aut dedere aut judicare principle. Also, the Convention's jurisdiction is confined to territoriality. In the Bosnian Genocide case before the International Court of Justice, moreover, the Court found that the responsibility to prosecute is territorially restricted. The domestic responsibility to prosecute crimes against humanity is documented in treaties only in the case of apartheid, enforced disappearance and torture.

Next to treaties that explicitly involve the prosecution of international crimes, States may also have the obligation to prosecute under other bodies of law. It has also been suggested that, under the international human rights regime, States have the obligation to try those who have violated particular grave human rights. All material elements of crimes against humanity and genocide and the majority of war crimes constitute grave human rights violations. A few cases before the Inter-American Court of Human Rights may be seen to underpin the argument that States must prosecute certain grave human rights violations. Nevertheless, these cases should be understood in the context of the specific conditions of the legal organisations of the Americas. Thus, it would be problematic to argue that these cases indicate the absolute obligation that States must prosecute certain human rights violations.

Apart from obligations that arise out of treaties, national prosecutions of international crimes may also be based on customary international law. As has been mentioned above, individual States tend to not prosecute international crimes. If they do, punishments are often quite lenient. Nevertheless, it has been argued that customary international requires States to domestically prosecute all international crimes or only certain international crimes, depending on the argument. Support in favour of such arguments has been voiced. The Draft Code of Crimes against the Peace and Security of Mankind, completed by the International Law Commission in 1996, includes an obligation to extradite or prosecute suspects of crimes against humanity, genocide and war crimes. In the Blaskić case, the International Criminal Tribunal for the former Yugoslavia argued that customary international law contains such an obligation with respect to international humanitarian law. One of the preambulatory clauses of the Rome Statute of the International Criminal Court also states that States must prosecute international crimes. But this clause does not specify in what source of law this obligation is grounded. Suggestions that the notion of an obligation to prosecute international crimes domestically is based on United Nations General Assembly resolutions are quite weak. However, a strong argument can be made that such an obligation is coming into existence on the basis of territorial, and possibly nationality jurisdiction. In addition, it could be said that the obligation exists on the basis of the character of international crimes. The most important international crimes are founded on jus cogens values (peremptory norms). These thus lead to erga omnes obligations. With respect to genocide case law of the International Court of Justice, the argument can be made that erga omnes obligations mean that States have the duty to prosecute and punish those who have committed genocide. Also, it has been asserted that a civitas maxima, or international community, has a shared interest in quelling international crimes. This, in combination with the right of States to prosecute, gives rise to the duty to prosecute or extradite. Even if it could be argued that this duty exists, however, this conclusion would not clarify States' jurisdiction, particularly that of third States. This question is connected to the validity of the concept of universal jurisdiction. If it were to be argued that there exists obligatory universal jurisdiction, this would imply that the majority of States always violate this obligation.

Municipal criminal law and criminal jurisdiction

One prerequisite of domestic prosecutions, naturally, is that criminal law and jurisdiction apply. The existence of such law and jurisdiction is demanded by the four Geneva Conventions and the Genocide Convention. Some States directly depend on international legal instruments. Other States adopt domestic legislation, for example specifically relating to genocide or war crimes. Such domestic legislation may be based in both military and civil criminal systems, or either of them. Crimes against humanity have been codified in domestic laws chiefly after the signing of the Rome Statute of the International Criminal Court. The crime of aggression is codified only in a few States. The majority of the material elements of genocide or crimes against humanity have long been penalised by domestic criminal law, although not necessarily as genocide or crimes against humanity but as more conventional crimes. In the French Barbie case this situation posed an obstacle for a prosecution of crimes against humanity initially, but the Court of Cassation held that this crime, as defined in the Nuremberg Charter of the International Military Tribunal, applied immediately in France. However, dependence on prosecuting and punishing ordinary crimes may not be sufficient for the application of international law, as the latter is concerned with more serious crimes. Reliance on ordinary rather than international crimes led an Australian court to establish that the law did not acknowledge genocide and that it could thus not be prosecuted. Even if domestic legislation is made to mirror particular definitions of international crimes, the modes of liability of the Genocide Convention are ignored in certain cases. Customary international is hardly ever included in domestic black letter law. Particularly in those countries in which non-written law does not exist, prosecutions on the basis of customary international law are thus hindered. In other States, particularly those with common law systems, customary international law cannot found new crimes either. But domestic courts may directly apply customary international law. The widespread absence of international crimes in domestic legislation is particularly urgent to resolve in cases where domestic criminal law is designedly selective. In the Barbie case, for example, the relevant law required that for a finding of crimes against humanity the actus reus be committed on behalf of a State asserting a dominant political ideology. Moreover, even if domestic courts strive to use international law, it may be the case that judges without familiarity with international law misinterpret it.

With the establishment of the International Criminal Court came a powerful stimulus for States to develop their own domestic criminal legislation, on the basis of the complementarity principle. This principle entails that the International Criminal Court may only exercise its jurisdiction where States are unwilling or unable to do so. If States pass laws criminalising the elements in the Rome Statute of and prosecute on the basis of such legislation, this means that the International Criminal Court cannot normally exercise its jurisdiction. States hereby articulate their intent to punish the perpetrators of grave atrocities. In order to prevent investigations and prosecutions by the International Criminal Court of their own nationals, certain States have directly applied the definitions of crimes in the Rome Statute of the International Criminal Court. Other States have changed these definitions into the terminology of their domestic criminal systems. In this option, however, States must consider their additional international responsibilities, such as those of customary international law. In this context, Germany has centered on prosecuting according to customary international criminal law.

Domestic courts may take into account non-domestic case law to various degrees. Particularly in common law jurisdictions, courts may consider the judgements of other common law courts. Civil law jurisdictions are by nature more hesitant to acknowledge case law. In both systems, however, the decisions of higher courts tend to influence those of lower courts. Conversely, domestic decisions may serve as the sources of international law in various ways. And the ad hoc Tribunals for the former Yugoslavia and Rwanda have frequently considered such decisions. The decisions of international courts are a formally complementary method of ascertaining international law. International court judgements have been of tremendous influence on the improvement of international criminal law. Among the most important institutions, in this regard, are the International Military Tribunals in Nuremberg and Tokyo, the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. There are several ways in which the decisions of these courts and tribunals can be applied in domestic settings. In some States it is expressly required that courts consider decisions of the International Criminal Court and other important international jurisprudence. Courts in other States often must decide in conformity with the interpretation of corresponding international provisos, including decisions concluded by international criminal courts and tribunals.

Statutes of limitation

The majority of municipal criminal systems has incorporated statutes of limitation. Statutes of limitation are also called statutory limitations, or set limitations on the time that may pass between the alleged commission of a fact and the prosecution thereof. Civil law jurisdiction tends to include general provisions for such time constraints on prosecution. States with common law systems, however, usually do not apply statutory limitations to grave crimes such as murder. There has been some controversy over the question whether it would be desirable to apply statutory limitations to international crimes. The limitations are designed to preclude unjust delays. But they may also result in impunity, irrespectively of the gravity of the international crimes committed. The Council of Europe and the United Nations have overseen the conclusion of treaties that regulate the non-applicability of time limitations on prosecutions of war crimes, genocide and crimes against humanity. This was with the purpose of ensuring that the perpetrators of grave atrocities escape with impunity. Certain domestic laws and international case law reaffirm this non-applicability of statutory limitations. The non-applicability is expressly included in the Rome Statute of the International Criminal Court. However, statutes of limitation have hindered the prosecution of persons in domestic settings. In the Barbie case, the relevant laws prescribed that statutes of limitations applied to war crimes, although not to crimes against humanity. Thus Barbie could only be prosecuted for the latter. Nonetheless, legal consensus is gradually turning against the applicability of statutory limitations to international crimes. Some argue that it is already a norm of customary international law that statutory limitations do not apply to genocide, torture and crimes against humanity. Others hold that in customary international law statutory limitations do not apply to war crimes. Such claims of norms of customary international law may be too early, however. This is because some States still have provisions of statutory limitations, and abovementioned treaties only have a moderate amount of States Parties. It should be noted that domestic legislation has no impact on international legal liability, and such liability is not conditioned by prescription.

The idea of non-retroactivity

Linked to statutes of limitations, the non-retroactivity principle constitutes a portion of the legality principle. Statutes of limitations may concern substantive or procedural law, while the legality principle only involves substantive law. The principle of non-retroactivity is violated when a limitation time period is enlarged or discarded retroactively, or when extraterritorial jurisdiction is applied in retroactivity. Domestic courts have nonetheless concluded judgements on the basis of retroactive applicability of the law in cases related to the Second World War. Certain crimes had not been part of domestic black letter law when they had been committed. In spite of this, it was held that they had been and were part of customary international law. There are several domestic laws that aim to provide for compliance with the non-retroactivity principle by linking possibilities to prosecute to the adoption or a State's ratification of the relevant international treaty.

Ne bis in idem

The principle of ne bis in idem, or double jeopardy, entails that a person cannot be tried or convicted more than once for the same facts. The idea is based on motivations of justness to the accused and the importance of exhaustive investigations and case preparations. The ne bis in idem principle is applicable with regard to international collaboration in criminal proceedings. However, the principle does not hold between domestic systems. Thus, a State may lawfully prosecute a person for facts on the basis of which that person has already been prosecuted or convicted in another State. This situation may be explained with reference to the concept of sovereign equality. Here, this concept means that the proceedings in one State do not bind those in another. The attitude of States towards trials in other States vary from absolute non-recognition to virtually unqualified recognition. The majority of States acknowledges certain foreign judgements in a restricted manner. Domestic laws sometimes require that courts take into account previous punishments undergone abroad by the suspect. Variances between common law and civil law jurisdictions may complicate the application of the principle across States. The European Court of Justice has considered that different European Union Member States may employ the principle in differing ways. It is also not clear which decisions, except for convictions and acquittals, can preclude novel proceedings. Even though the principle is in force in virtually every domestic criminal system, its validity across State boundaries remains contested. Nevertheless, it is sometimes suggested that a customary norm is developing with respect to the application of the principle to trials for international crimes. Quite separately from the ne bis in idem principle, the European Union is trying to establish rules that identify and give priority to the most fitting jurisdiction.

The development of international criminal law next to domestic criminal law systems has reinvigorated debates concerning the ne bis in idem principle. The ad hoc Tribunals for the former Yugoslavia and Rwanda have in their respective Statutes the rule that prosecutions of a person are prohibited when a previous prosecution of the same person at one of the Tribunals has already been undertaken. However, in particular circumstances the Tribunals may set aside previous rulings by domestic courts. These criteria concern the characteristics of the proceedings as well as the importance of prohibiting the commission of international crimes. The Tribunals can only be precluded from exercising jurisdiction by domestic trials that have been concluded. In this respect, the Statute of the International Criminal Court is different from those of the ad hoc Tribunals. Because the International Criminal Court has a jurisdiction that is supplementary to that of States, it cannot assert its jurisdiction over conduct for which a person has already been prosecuted. This principle holds also when a person has been prosecuted for a domestic rather than international crime. However, farcical trials do not preclude later proceedings at the International Criminal Court. The International Criminal Court must therefore determine whether previous proceedings were, according to international legal norms, fair and independent. Also, a conviction or acquittal before the International Criminal Court prohibits another trial for the same international crime by the same person. It has been suggested, however, that a person, after having been acquitted or convicted for an international crime, could be prosecuted for the same conduct as a domestic crime. The International Criminal Court has the discretion to reduce a convicted person's punishment in connection with the time period spent in detention.

Practical hindrances to domestic prosecutions

There may be some practical barriers to domestic prosecutions for crimes commissioned in another State or in other States. In such cases, international regulations apply to security, cooperation and logistics. Several States have particular trial and police units to handle these crimes. International cooperation may concern the arrest of the suspect, which can be subjected to extradition requirements. Also, documentary and material evidence are frequently demanding to obtain, and therefore witnesses are very important. Difficulties with obtaining evidence may be increased when there is a significant time gap between the facts and the prosecution. Such difficulties may have an impact on fair trial norms. It may also be the case that elderly defendants lack the health required to stand trial and serve a sentence in prison.

Inter-State collaboration in the context of domestic trials - Chapter 5

 

Preliminary remarks

Criminal law and trials form an essential part of state sovereignty. Collaboration between States in criminal affairs, therefore, is unforced. Nevertheless, the narrow-minded perspective that criminal law and its impact are by their nature local has been replaced by a demand for and actual management of international legal collaboration. Significant developments, in this regard, include more movement across State borders, among which are the commission of crimes, the evolution of human rights and what has been called international terrorism. State cooperation with respect to crimes becomes especially important with respect to the abovementioned aut dedere, aut judicare maxim, and when a State is trying crimes which were not committed on its territory. However, there does not yet exist international law pertaining to inter-State collaboration with respect to international crimes. Some treaties mention domestic laws as a basis for such cooperation. Nevertheless, State collaboration in the context of the two ad hoc Tribunals and the International Criminal Court is governed by specific regulations, discussed below. Conventional means of cooperation include mutual legal aid, extradition, the passing on of trials, and the execution of punishments.

International arrangements

Extradition, which began on an informal basis, was the first kind of inter-State legal collaboration to become managed by bilateral and multilateral arrangements. Later, additional kinds of collaboration were added. Currently, a majority of States demand that a agreement be in place as a requisite for offering collaboration. Most agreements thus provide for reciprocity, but assistance may also be offered unilaterally. The amount and worth of international arrangements, however, are disproportionately spread around the world. This is the case even more so for municipal legislation on legal aid. A few regions have well-developed multilateral agreements, for example in Europe, due to the Council of Europe and the European Union. However, no global treaty exists that regulates extradition or mutual legal aid across the world. Many States continue to depend on outdated or otherwise insufficient treaties. The most important aim of multilateral treaties that address inter-State cooperation in the context of domestic proceedings is to catalogue the relevant crimes and to bind States to agitate against such crimes by means of legislation. Unfortunately, the relatively older treaties only include collaboration in highly unspecific phrases. More novel treaties do not suffer as much from this fallacy. Also, there are a few specialised agencies active in this realm. Among them are the International Criminal Police Organization (Interpol) and the European Police Office (Europol).

Essential characteristics

In law, inter-State collaboration is in tension between State sovereignty on the one hand, which entails the tendency to prefer the State's own system, and the shared concerns and unity among the various States in ending impunity. Because international law considers States to be equal amongst each other and sovereign, collaboration between them is horizontal. This is expressed by reciprocity demands in treaties and comprehensive grounds for declining calls for collaboration. If assertions of extraterritorial jurisdiction are more extensive, it is more likely that international legal cooperation will be problematic.

Conventionally, the applying State requests aid by a particular method or with a particular result, and the demanded State, if it admits the request, acts to fulfill the request in accordance with its domestic laws. Cumbersome formalities procedures frequently hamper collaboration and may obstruct a successful outcome. This may especially be the case when, for example, differences between domestic legal systems are significant. Due to these difficulties, there have been moves to establish a form of inter-State cooperation that allows the applying State to participate when the requested State is acting on the request. In the European Union, a more drastic measure has been introduced with the establishment of a maxim of mutual acknowledgement of foreign judicial decisions as the basis of legal collaboration between Member States. This approach seeks to minimalise formalities and depends on significant amounts of trust among participating States.

There are several formal limitations that govern cooperation in criminal matters. The maxim of double criminality or dual criminality demands that the given conduct is criminalised in both the applying and the requested State. This principle is now commonly accepted. It is linked to the principle of legality, state sovereignty and inter-State mutuality. The suggestion is frequently made that the principle of double criminality obstructs effective collaboration between States. It is, in any case, used in various ways. While several States demand exactly the same crimes, other States accept a different (but sufficiently grave) crime if the material act is the same. An additional demand in several States is that, next to the conduct, the relevant criminal jurisdiction of the applying State must be similar to the jurisdiction of the requested State. The establishment of the International Criminal Court has stimulated many States to adopt legislation similar to the Rome Statute of the International Criminal Court, and therefore collaboration between States may be facilitated by this. Apart from the principle of double criminality there is the rule of specialty. This rule demands that the applying State only prosecute the extradited suspect for the crimes for which that person was extradited. Especially in the European Union, however, there exist limited possibilities to not apply this rule. Apart from the principle of double criminality and the rule of specialty, statutory limitations (already described above) sometimes apply in municipal criminal law systems in general, and may thus hinder collaboration.

The maxim of ne bis in idem, as explained above, is a commonly accepted principle in the majority of domestic criminal law systems. Nevertheless, the principle usually does not apply across such domestic systems. This means that a person may be prosecuted for acts for which that person has already been prosecuted in another State. A final decision in one State, however, may prevent proceedings in another State for the same acts. Conventionally, inter-State arrangements concerning extradition disallow extradition if in the requested State a final decision has already been made concerning the suspect. There is now a development towards using the principle more extensively, especially in the European Union. Nevertheless, there does not exist any broad international legal rule that prohibits extradition on the basis of a previous decision in another State.

Frequently, there is a conflict in international criminal law between basic human rights granted to individual persons and the importance that States attach to effective execution of the law and criminal proceedings. There is a tendency to constrain the number of reasons with which a refusal to cooperate can be explained. Also, in common law States the rule of non-enquiry frequently deters courts from investigating the fairness of the trial of the applying State. However, from a human rights perspective extradition should be discouraged if the suspect's human rights may be violated. In fact, a significant precondition of expanding cooperation in Europe is that States respect human rights standards, so that trust in each other's criminal law systems can increase. One articulation of human rights issues in the context of extradition is the non-refoulement maxim of refugee law, which stipulates that refugees may not be brought back to States where they will probably be prosecuted. Such municipal human rights enforcement is also usually part of legal collaboration. The European Court of Human Rights has held that human rights responsibilities may trump obligations of international legal collaboration. Domestic courts, however, must choose between competing treaty responsibilities. It is controversial to suggest that, in such cases, particular human rights standards have a jus cogens status and should therefore override extradition obligations.

Extradition may be defined as the submission of an individual person by and from a State to another. Such a surrender occurs either when the person is accused of a crime in the applying State or if the person is illicitly on the loose following a conviction. The practice is usually subject to strong demands. The rule of specialty and the principle of double criminality, explained above, are important, and the crimes should be extraditable. The ne bis in idem rule may be a ground for a State to refuse collaboration. There are also many other grounds. The aut dedere aut judicare rule is somewhat adjusted by several treaties which state that extradition may be subject to domestic legislation. These treaties are the four Geneva Conventions and the Genocide Convention.

As has been stated, States tend to emphasise the importance of reciprocity in international arrangements governing extradition. One example of such a multilateral treaty is the 1957 European Extradition Convention, plus its Additional Protocols. Across Member States of the European Union, the European Arrest Warrant has established a method whereby an arrest warrant issued in a certain State is acknowledged and acted upon in all other Member States. This system is widely held to be successful.

Extradition is subject to different procedures, depending on which States and laws are involved. Conventionally, the applying State demands the (tentative) arrest and extradition before the passing of a certain amount of time of an accused or convicted individual. The requested State, if willing, executes proceedings in accordance with the request. In a majority of States, both the executive and the judiciary powers play a role in the proceedings. However, the European Arrest Warrant seeks to minimalise such formalities. Perspectives on processes of extradition may broadly be said to take one of two perspectives. The conventional perspective, on the one hand, focuses on the States involved, and regards the individual person in question as having no say in the procedures. On the other hand, a human rights perspective suggests that the person subject to extradition has certain rights that that person can claim. The principle of non-inquiry has long prevented courts in many common law systems from taking on the responsibility to judge the fairness of proceedings in other States. This would go against the principle of comity between States. Rather, such decisions are for the executive powers to take. This situation would prevent persons subject to extradition to object to their extradition before a court on the basis of likely human rights violations. Sometimes this is nonetheless allowed.

Some crimes are extraditable, while others are not. The former are typically serious crimes, including international and transnational crimes. Their extraditability is often independent of the question whether or not there applies any treaty-based aut dedere aut judicare principle. Certain other crimes, however, are frequently non-extraditable. These are typically political offences, although this term may have many meanings. In a few jurisdictions, the category of political offences has been divided between absolute and relative ones; as such, the latter may be extraditable. Military offences are also often said to be non-extraditable. Because such offences fall under military rather than criminal law, however, they may nonetheless be extraditable under criminal law.

A large number of States, especially with civil law systems, forbid that their own nationals be extradited. While this is a form of protection, States also often have extensive legislation concerning crimes committed in other States. The European Arrest Warrant, however, may be seen as an attempt to abolish the tendency to not extradite nationals. There exist several human rights-related reasons to refuse extradition. A large number of States that have done away with capital punishment also forbid extradition to States where the person could be punished with the death penalty. An exception to this tendency is where the requested States promise to not impose or enforce capital punishment. Extradition is also prohibited by the Torture Convention when a person could face torture in the requesting State. Another potential obstacle for extradition is life imprisonment. A typical clause in international arrangements prohibits extradition when there is a reasonable basis for considering that there is a discriminatory element in the extradition request. Such clauses are stimulated by the principle of non-refoulement. Such denial of extradition may be consistent with the interests of the public order. While requesting States may assure the requested State that, for example, enforcement of the death penalty will not follow extradition, such assurances can usually not be backed up with sanctions when they are breached. Normally, the requesting State is not authorised to re-extradite an already extradited person. Under certain conditions, however, this is allowed by the European Arrest Warrant.

In a certain case there may be no extradition agreements, or these may not be applicable or regarded as unproductive. This may lead States to resort to other means to nonetheless prosecute a person. This involves abduction or, in other words, irregular rendition. This was the case in the Eichmann trial discussed above. Such operations can violate international law, depending on the respect of the abducting State for the human rights of the abducted person and the territorial sovereignty of the second State. According to the principle of male captus, bene detentus, such illegalities do not hinder a court from exercising jurisdiction. In some countries, however, this principle has been replaced by the abuse of process doctrine. This doctrine holds that jurisdiction may not be asserted when there were irregularities during the capture and transfer of the suspect. Sometimes States deport a person under immigration law as a faster alternative to extradition. In Europe, however, this practice may violate the European Convention on Human Rights. This is the case even while the Convention does not regulate deportation or extradition per se.

Reciprocal legal aid

Reciprocal legal aid is currently predominantly based on treaties. It may involve criminal investigations and trials. More specifically, reciprocal legal aid may exist in the taking of testimonies, service of documents, enquiries and confiscation. Especially when proceedings are very adversarial, it is important that witnesses testify in court. In such cases, evidence gathered abroad may thus be less important. In other cases, when written evidence is relatively more significant, this issue may not be as significant. The most important European instrument for mutual legal assistance is the Council of Europe Convention on Mutual Assistance in Criminal Matters of 1959, together with its Additional Protocols of 1978 and 2001. Several other regional frameworks exist elsewhere in the world. Reciprocal legal aid is subject to certain conditions, or reasons for denial, that resemble the grounds for denial of extradition. Like extradition, mutual legal assistance has to cope with many practical difficulties, among which are many differences in the procedures between the requesting and the requested States.

The passing on of criminal proceedings

An alternative to the forms of international legal collaboration described above is the transfer of proceedings between States. Both of these States must possess jurisdiction and thus satisfy the double criminality requirement. There is a Council of Europe instrument that provides for such transfers, but it has been ratified by merely a small number of States. Primary motives for such transfers are that the suspect has links to the requesting State or that a trial in the requesting State would be more practical.

Carrying out of punishment

There is some legal collaboration between States concerning the execution of foreign penalties. This may make extradition easier, if the requesting State assures the requested State that the suspect will be given back to serve any punishment in the requested State. There are also humanitarian considerations that motivate recognition of foreign enforcement of punishments.

The first international criminal trials: the International Military Tribunals - Chapter 6

 

Preliminary remarks

The history of international criminal law, or at least something similar to it, began a long time ago. Perhaps what resembled it most before the modern era in Europe was the chivalric organisation. This text, however, is limited to the modern history of international criminal law.

Introducing the allocation of responsibility to those who wage war

After the end of the First World War a commission was set up to enquire who was responsible for the inception of the war and for violations of humanitarian law and which institutions should be used to try those responsible. The commission advocated the establishment of a tribunal to this end. It also stated that the Kaiser, among other high-ranking agents, should be prosecuted. Although the American and Japanese delegations were critical in this regard, a majority nonetheless found that there existed a system of international criminal law. The prosecutions of the Kaiser and other officials, although included in the Treaty of Versailles, never materialised. Between 1921 and 1923, Germany did prosecute a few persons in Leipzig. The legitimacy of these trials has been questioned on the basis of their partiality towards the defendants.

The International Military Tribunal at Nuremberg

The development of what remained a frail body of international criminal law was spurred by the Second World War. In a declaration issued by the allied States in Moscow in 1943, it was stated that those who had committed war crimes and belonged to the Axis powers were to be punished. The London Charter of the International Military Tribunal, signed on 8 August 1945, signified that France, the United Kingdom, the United States of America and the Union of Soviet Socialist Republics had created an international tribunal for the prosecution of persons who had violated international laws. There had been some difficulties in the negotiations between the common law States (the United Kingdom and the United States of America) and the civil law States (France and the Union of Soviet Socialist Republics), as well as controversies over the aim of the tribunal.

The eight judges of the Tribunal were drawn from the founding States – two from each State. Each State also appointed one chief prosecutor. The Tribunal's President was Lord Justice Geoffrey Lawrence. The indictment included four principal charges. The first count was the general conspiracy. The second was crimes against peace. The third was war crimes. The fourth was crimes against humanity. Six allegedly criminal organisations were also tried. Justice Robert Jackson, the American Chief Prosecutor, included in his opening address a great number of values that were later adopted as principles of international criminal law. The proceedings were concluded within ten months. Three of the accused and three of the organisations were acquitted. Twelve defendants were given the death penalty, seven were convicted to prison sentences.

The Judgement as well as the Tribunal's considerations on the facts have greatly helped the development of international criminal law. Perhaps its most important contribution is that the Judgement found that international law directly imposes liability on individual, natural persons. It is also significant that the Judgement deals considerably with the argument of the defence that the proceedings on the basis of crimes against peace violated the maxim of nullum crimen sine lege. Even if the Judgement's reasoning here may be insufficient, it is nonetheless significant that the Judgement argued that customary international law prohibited crimes against peace when the acts in question were committed.

The International Military Tribunal at Nuremberg has also been criticised, however. Perhaps the main reason for this is that it was based on victor's justice. This concept may include allegations of the unfairness of proceedings – especially that judges favoured the prosecution, that nationals of the States that had founded the Tribunal should also be prosecuted for similar acts, and that the relevant laws had been modeled to ensure convictions. Indeed, a number of drawbacks may be mentioned. For example, the prosecution depended greatly on affidavit evidence. Also, the prosecution had much greater resources than the defence. Moreover, it must be conceded that the London Charter effectively legislated crimes against peace into existence ex post facto. More generally, all crimes in the London Charter were defined with the atrocities commissioned by Nazi Germans in mind. It can also be conceded that the Tribunal was inconsistent in that it prosecuted the same acts committed by Nazis, but not by the forces of the allied States. Nevertheless, these forces did not commit atrocities of the scale of the Holocaust. The Tribunal did not allow the defence to take up this issue. Among criticism on the Judgement not related to the concept of victor's justice is that the Americans envisioned the proceedings as being concerned predominantly with aggression instead of the Holocaust.

The International Military Tribunal for the Far East (Tokyo)

The International Military Tribunal for the Far East, also known as the Tokyo International Military Tribunal, was established in 1946 per a declaration of General MacArthur. The allied States as well as Japan had accepted the establishment of this Tribunal. Nine of the eleven judges at the Tribunal were from States that had signed the capitulation of Japan. The bench was thus highly varied. The indictment, which was filed on 29 April 1946, included 55 counts against 28 suspects. The counts included crimes against peace and accompanying conspiratory acts, murders, and war crimes. All defendants were found guilty; seven got the death penalty, the rest prison sentences of varying lengths. In terms of the substance of legal questions, the majority Judgement at the International Military Tribunal for the Far East mirrored the Judgement of the Nuremberg Tribunal. One significant difference between the Judgements is that the former discussed command responsibility in greater detail than the latter. In separate opinions, the Tribunal's President and Judge Bernard argued that crimes against peace may be grounded in natural law. Judge Röling, in disagreement with the majority, argued that there existed no international criminal legal liability for aggression. Judge Pal argued the same in the case of crimes against peace. He also challenged the supposed impartiality of the proceedings and concluded that he would have exonerated all suspects. This view was criticised by Judge Jaranilla, who himself was questionable in the sense that he was suspected of being a priori biased towards the accused.

Like the Nuremberg Tribunal, the International Military Tribunal for the Far East has been condemned as being an instance of victor's justice. Roughly the same criticism on the Nuremberg Tribunal also applies to the Tokyo Tribunal. In many cases, the bench took an unsubtle view of the facts. Tu quoque arguments applied not only to the Nuremberg Tribunal but also to the Tokyo Tribunal. The trial was undoubtedly a political one. The Emperor was not accused because his immunity was supposedly essential for Japan's endurance.

Control Council Law Number 10 proceedings and military commissions in the realm of the Pacific Ocean

Next to the Nuremberg Tribunal there were many additional trials of war criminals in occupied Germany, conducted by the Union of Soviet Socialist Republics, the United Kingdom, France and the United States of America. These trials occurred under Control Council Law Number 10, which authorised domestic prosecutions of crimes against humanity, war crimes and crimes against peace. The most important of these trials for the development of international criminal law were the twelve trials conducted by the United States. In the Pacific area, the United Kingdom, the United States of America, China, Australia, the Philippines and other allied States also conducted a large number of trials. These were grounded in different domestic laws on war crimes.

The International Criminal Tribunals for the former Yugoslavia and Rwanda - Chapter 7

 

Preliminary remarks

For a long time after the trials related to the Second World War, it appeared unlikely that there would again be international criminal courts or tribunals similar to those in Nuremberg and Tokyo. Nevertheless, armed conflicts in the former Yugoslavia and Rwanda in the early 1990s led the United Nations Security Council to establish international criminal tribunals for these situations.

The International Criminal Tribunal for the former Yugoslavia

From 1991 onwards, the then State of Yugoslavia began to be divided in new States, while a number of intertwined armed conflicts were taking place. In these conflicts occurred massive international criminal law breaches, especially sexual crimes and ethnic cleansing. Demands for action increased in vehemence with publications about Bosnian concentration camps. In 1992, the United Nations Security Council passed Resolution 780, which established a commission mandated to scrutinise accusations that international crimes had been committed. Although the Commission had not yet finalised its work, in 1993 the United Nations Secretary General recommended, reacting to United Nations Security Council Resolution 808, that a tribunal be established by the United Nations Security Council. At the time, the idea of a tribunal as a body of the United Nations Security Council was completely new. The Report of the Commission included a draft Statute, which in certain manners resembled the Charter of the International Military Tribunal at Nuremberg. However, it also included a smoother organisation for collaboration. The draft Statute was adopted by the United Nations Security Council in Resolution 827 in 1993. The question to which extent the United Nations Security Council, as a political body, should be able to engage in international legal affairs is debatable. Resolution 827 also states the goals of the establishment of the International Criminal Tribunal for the former Yugoslavia. These included the following: the Tribunal should halt the commission of international crimes; prosecute those responsible for the commission of crimes; and participate in the rebuilding of peace in the former Yugoslavia. It has been suggested that this last aim may have been too optimistic.

The International Criminal Tribunal for the former Yugoslavia possess three principal bodies; the Chambers, the Office of the Prosecutor and the Registry. This last organ manages the Tribunal's administration, containing inter alia the programmes for witnesses and victims. It is also responsible for transferring the accused, and the circumstances of their confinement. The Office of the Prosecutor investigates accusations, indicts persons (although after approval by a judge) and prosecutes them. There are three distinct Trial Chambers, which are all subjected to the powers of the Appeals Chamber. All Trial Chambers are composed of a judge acting as president and two additional judges. The Appeals Chamber is comprised of seven judges.

The International Criminal Tribunal for the former Yugoslavia possesses jurisdiction over genocide, crimes against humanity and war crimes commissioned inside the boundaries of the former Yugoslavia after 1 January 1991. The time-related jurisdiction of the Tribunal is therefore open-ended. The Tribunal has jurisdiction over grave breaches of the four 1949 Geneva Conventions, per Article 2 of its Statute. Article 3 includes an incomplete list of war crimes over which the Tribunal may assert jurisdiction. The Tribunal itself held that this list applied both in international and non-international armed conflicts. The Tribunal possesses precedence over domestic courts, which entails that it may demand States to transfer to it any cases under the Tribunal's jurisdiction, whether such cases were being considered or already being in process. The Rules of Procedure and Evidence include rules governing when the Tribunal may require that domestic courts defer cases to it.

Initially, progress at the International Criminal Tribunal for the former Yugoslavia was slow. There was little staff, which was required to establish a tribunal from scratch. It also lacked adequate funding. The fact that the various armed conflicts in the former Yugoslavia were persisting limited the Tribunal's investigations. Major progress occurred in April 1995, when the first suspect was transferred to the International Criminal Tribunal for the former Yugoslavia. It was Duško Tadić; Germany had commenced proceedings against him, but deferred the case to the Tribunal. Tadić challenged the power of the United Nations Security Council to establish the Tribunal, as well as the Tribunal's precedence over domestic courts and the jurisdiction of the Tribunal over the crimes of which he was accused to have commissioned. The first question was a sensitive one. The Trial Chamber Tribunal held that it did not possess the authority to decide whether the United Nations Security Council had acted legally or illegally in establishing the Tribunal. However, the Appeals Chamber considered that the Tribunal had an inherent authority to decide on this question, and it argued that the United Nations Security Council had acted legally. Nonetheless, the Appeals Chamber was divided over the question whether it could decide on the legality of the actions of the United Nations Security Council. The majority of the Appeals Chamber considered that the Tribunal may give legal answers to questions even if such questions have political implications. The Tribunal argued that the United Nations Security Council had the right to act under Chapter VII of the United Nations Charter with regard to the situation in the former Yugoslavia, which it regarded as constituting a danger to peace. The Tribunal also argued that the United Nations Security Council had the authority to establish a court under Article 41 of the United Nations Charter. Although this Article does not explicitly mention that the Council may do this, the Appeals Chamber reasoned that the Article nonetheless allows it because the Article is non-exhaustive. The Appeals Chamber declined to comment on the aim of the United Nations Security Council that the Tribunal should contribute to the rebuilding of peace.

The Appeals Chamber also considered Tadić's argument that the primacy of the Tribunal over domestic courts was illegal. In this regard, the Appeals Chamber argued that the Tribunal's primacy was lawful because all States that emanated from the former Yugoslavia either had become members of the United Nations when the Tribunal was established or asserted that they succeeded the State of Yugoslavia. Thus, the Tribunal's primacy did not breach the sovereignty of these States, nor suspects' non-existent entitlements to be tried before their domestic courts.

Moreover, the Tribunal responded to the argument that the International Criminal Tribunal for the former Yugoslavia was not set up by law under human rights standards. The Appeals Chamber held that this principle merely demanded that the Tribunal have adequate norms for fair trials. It considered that this was the case.

The Dayton Peace Agreement of 1995 formally ended the various armed conflicts in the former Yugoslavia, and obliged all States of the former Yugoslavia to collaborate with the International Criminal Tribunal for the former Yugoslavia. Apart from Bosnia and Herzegovina, the new States were reluctant to collaborate with the Tribunal.

In 1998, the Tribunal held nineteen persons in detention, and the Tribunal had requested the establishment of a second Trial Chamber. Because of the upped intensity of violence in Kosovo the Prosecutor of the Tribunal was requested by the United Nations Security Council to also investigate events in Kosovo. As a result, Slobodan Milošević was indicted in May 1999. In the following year, the Prosecutor received requests asking her to enquire into the actions of the States of the North Atlantic Treaty Organization. It was alleged that these States may have committed war crimes during air attacks in Kosovo. The Prosecutor established a committee mandated to conduct investigations in this regard, but the committee advised in June 2000 that no further action be taken. The recommendations of the committee caused quite some controversy.

Around 2000, the Tribunal estimated that the work of the judges could be completed in 2016 at the earliest. Because it was held that this would be too lengthy a time, the International Criminal Tribunal for the former Yugoslavia recommended to the United Nations Security Council that a completion strategy be made. The completion strategy involved the inclusion of ad litem judges, or judges who rule on one case only. The strategy also meant that in certain pre-trial affairs lawyers came to replace judges, and the Appeals Chamber was enlarged.

The conspicuousness and apparent successfulness of the Tribunal improved markedly in 2001. In this year, the Federal Republic of Yugoslavia commenced collaborating with the Tribunal, which resulted among other things in the submission of former President Milošević to the Tribunal. Also in 2001, the Court concluded its first judgement in which it convicted a person for genocide. The Tribunal was aiming to have finalised its trial-related work by 2008. The accomplishment of this aim was helped by the augmented willingness of suspects to plead guilty, the increased collaboration of the Federal Republic of Yugoslavia with the Tribunal, and an increase in the number of indictees who willingly surrendered to the Tribunal. The Tribunal also increasingly deferred cases to domestic courts. In August 2003, the United Nations Security Council passed Resolution 1508 in which it explicated its take on the completion strategy of the International Criminal Tribunal for the former Yugoslavia. The Council stated that the Tribunal should center on high-level criminals. The Resolution also included a completion timetable, which stipulated that the Trial Chambers should have finished their operations by 2008, and the Appeals Chamber by 2010. There were considerable doubts as to whether the Tribunal would be able to keep to this completion table. Challenging the completion table, Judge Hunt of the International Criminal Tribunal for the former Yugoslavia argued that the expectations of the international community with regard to the completion threatened the fair trial standards to which the defendants were entitled. In 2005 the Tribunal began transferring cases to domestic jurisdictions, especially to Bosnia and Herzegovina and Croatia, after the Tribunal had finalised enquiries into war crimes. In 2006 Slobodan Milošević, perhaps the most high-profile defendant at the Tribunal, deceased, just before the conclusion of his lengthy trial. The Tribunal is increasingly giving attention to its legacy, involving inter alia the archiving of considerable amounts of judicial and additional matters.

In addition to the goals with which the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia, the Tribunal also designed several goals for itself. These included; advancing accountability instead of impunity, also with respect to leaders; making clear the facts of the international crimes commission in the former Yugoslavia; bringing justice to victims and ensuring that they can raise their voices, contributing to the evolution of international law and bolstering the rule of law. To a certain extent the Tribunal has accomplished these aims. The Tribunal advanced accountability not least by offering an immediate precedent for the International Criminal Tribunal for Rwanda and for the International Criminal Court. The Tribunal also paid appreciable resources to realise justice for victims, even if its efforts have not been flawless. Doubtlessly, the Tribunal has also contributed to the development of international law. The majority of its decisions were argued well. At times, nevertheless, it was alleged that the Tribunal held that something was customary law where it was not so, or in doubt. However, it cannot be stated with certainty that the Tribunal has violated the principle of nullum crimen sine lege. The Tribunal has been criticised on other grounds as well. These include that the Tribunal has been too costly and with cumbersome formalities, while the trials take too much time, breach the rights of suspects, and are geographically too separated from the former Yugoslavia. More generally, it has been alleged that the establishment of the Tribunal was selective, and that the Tribunal replaced potentially more successful measures of preventing crimes. All of these critiques, to varying degrees, may be regarded as truthful.

The International Criminal Tribunal for Rwanda

Acknowledgements that the establishment of the ad hoc Tribunal for the former Yugoslavia was selective led to one of the motivations to establish a Tribunal for Rwanda. Indeed, it appeared that it was both required and fitting to establish a tribunal for the genocide that was being commissioned in Rwanda while the Tribunal for the former Yugoslavia had only just been created. The United Nations Security Council therefore now acted similarly to its establishment of the International Criminal Tribunal for the former Yugoslavia. Unlike the latter, however, the statute of the International Criminal Tribunal for Rwanda was written by the Member States of the United Nations Security Council, who thoroughly followed the Statute of the Tribunal for the former Yugoslavia. Rwanda, then a Member State of the Council, favoured the establishment of the Tribunal at the beginning, but nonetheless voted against the relevant Resolution for a number of reasons. The structure of the International Criminal Tribunal for Rwanda closely resembles that of the Tribunal for the former Yugoslavia; the former also possesses three Trial Chambers, an Appeals Chamber (shared with the Tribunal for the former Yugoslavia in The Hague), an Office of the Prosecutor and a Registry. And, like the Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda possesses jurisdiction over genocide, crimes against humanity and war crimes. However, the definitions of genocide and crimes against humanity are somewhat different between the two Tribunals. The territorial jurisdiction of the Tribunal is limited to crimes committed in Rwanda, and its temporal jurisdiction to crimes committed in 1994. The Tribunal also precedes over municipal courts, but may defer cases to them. Its seat is in Arusha, Tanzania.

Like the Tribunal for the former Yugoslavia, the Tribunal for Rwanda started slowly. The first indictments were issued in November 1995. While there was a lack of funding, a United Nations report on the management of the Tribunal was extremely critical. The Tribunal was understaffed, there were financial anomalies, and assets were administered weakly. Merely the Chambers were not subject to grave criticism.

Nevertheless, in May 1998 major progress was made when Jean Kambanda, who was Prime Minister when the Government of Rwanda oversaw the commission of genocide, pleaded guilty to the charge of genocide. Importantly, Kambanda's plea and his conviction recognised that genocide had in fact been committed. The Tribunal's first Judgement was significant as it was the first time that an international criminal tribunal explicitly used the Genocide Convention. The Judgement also importantly considered that the material element of genocide may be sexual crimes. In 1999 Rwanda suspended all collaboration with the Tribunal in its outrage over a decision of the Tribunal. The Appeals Chamber revised its decision and, subsequently, links between Rwanda and the Tribunal improved. Nevertheless, it was alleged that political motivations rather than law had stimulated the improvement in this relation. Although the work of the Tribunal was to remain slow, the Tribunal was given a boost with the inclusion of ad litem judges in 2001. As part of views towards its completion, the Tribunal began to form plans to transfer up to forty trials to domestic jurisdictions, including but not only Rwanda. The United Nations Security Council passed Resolution 1503 in August 2003, which included a completion timetable. The International Criminal Tribunal for Rwanda stated that it was capable of meeting the deadlines in said timetable. At least up to January 2010, however, no cases had been transferred to Rwanda. Rather, the Tribunal has challenged this possibility, arguing that fair trial standards may not be respected in Rwanda. The fact that possibilities to defer cases are limited may mean that the Tribunal will finish its work later than planned.

Although the International Criminal Tribunal for Rwanda has been greatly criticised, it can also be praised for having successfully prosecuted high-ranking defendants. 35 of the 44 persons to have been prosecuted have been convicted, and around 32 more persons are to be prosecuted. The Tribunal has secured many of the persons most responsible for the genocide. In various ways, the Tribunal has added to the evolution of international criminal law – especially with regard to sexual crimes, but also with respect to persons responsible for controlling media instigating the commission of genocide. Nevertheless, the conclusion of many trials was extremely delayed, for various reasons. Another significant source of criticism has been the fact that the International Criminal Tribunal for Rwanda has not tried alleged crimes commissioned by members of the Rwandan Patriotic Front following the genocide in 2004. Also, it has been asserted that the International Criminal Tribunal for Rwanda is too removed from Rwandans, both in the topographical and symbolic sense. The people of Rwanda are still largely unaware about and not influenced by the International Criminal Tribunal for Rwanda, in spite of the fact that it has an outreach programme. Relatedly, the Tribunal has also been challenged for its costliness.

The International Criminal Court - Chapter 8

 

Preliminary remarks

The establishment of an international criminal court that is durable and possibly possesses global jurisdiction is one of the most significant instances of progress in international criminal law. The Rome Statute of the International Criminal Court has created a novel judicial organ for the prosecution of international crimes, as well as a novel set of international criminal regulations.

The establishment of the International Criminal Court

The Nuremberg Promise entailed that the prosecutions related to the Second World War would constitute examples for prosecutions of international crimes to follow. For a long time, however, no endeavour was made to actually establish a permanent institution with such a mandate. The most important development directly after the Second World War, in this regard, was the Genocide Convention. This Convention mentions that persons accused of having committed genocide may be tried, inter alia, by an international criminal tribunal the jurisdiction of which has been accepted by the Contracting Parties of the Convention. When it adopted the Genocide Convention, the United Nations General Assembly asked the International Law Commission to investigate whether it would be possible and advisable to create an international court or tribunal to try the commission of, among other crimes, genocide. A special committee came up with a draft statute in 1950. However, the United Nations General Assembly decided to delay the matter until a definition of the crime of aggression and the draft version of the Code of Offences had been finalised. Meanwhile, support for the idea of a permanent international criminal institution faded, and nothing much happened for some time. In 1989, nevertheless, after a call of Trinidad and Tobago the United Nations General Assembly put the idea of creating such an institution on the agenda again, and requested the International Law Commission to produce a draft Statute for an international criminal institution. The International Law Commission's 1994 draft differed in significant ways from the current Rome Statute of the International Criminal Court; the former included more crimes than the Rome Statute, but did more to guard the sovereignty of States. The production of the draft Statute of the International Law Commission was well timed, as it came about after the end of the Cold War, and when ad hoc Tribunals were being created for the former Yugoslavia and Rwanda. In 1995 a Preparatory Committee was established mandated to produce the text of a potential draft treaty, on the basis of the work of the International Law Commission. It was decided that there would be a conference in Rome in 1998 to complete the treaty.

During the five weeks of the Rome Conference in 1998 there was a rich variety of controversial issues, ranging from those that were very political to very specific questions of penal procedure. Progress was made slowly, because the different committees did not vote but worked on the basis of consensus. One of the most controversial issues was a dilemma between the aim to guarantee accountability for international crimes and the fear that nationals of one's own State would be prosecuted. There were several groups at the Conference, such as the Like-Minded Group, the Southern African Development Community, the European Union and the Non-Aligned Movement. Non-governmental organisations were also present and lobbied. They could not formally negotiate. Within a week before the end of the Conference, there was still a variety of major questions that had to be answered. The ultimate text of the Rome Statute of the International Criminal Court was passed with 120 votes in favour and 7 against, while 21 States abstained.

The following two issues help to elucidate some of the characteristics of the Rome Statute. Firstly, there is only a limited amount of travaux préparatoires. The travaux préparatoires are the records of the preparations of a treaty. These can be used to help interpret the particular treaty. Such use of the travaux préparatoires is permitted by the Vienna Convention on the Law of Treaties, which asserts among other things that a treaty must be explained in good faith with respect to the aims of the treaty and the normal meaning of the treaty's terms. If the meaning of these terms is unclear, one may use supplementary means to interpret the treaty. These means include the travaux préparatoires. However, most of the negotiations in Rome and New York were informal, which means that they were not recorded. Also, in the travaux préparatoires that are available, the reasoning of delegates is often absent. This situation means that if one wants to use other texts to explain the Rome Statute of the International Criminal Court, one must, more than in other cases, depend on commentaries about the International Criminal Court.

The second issue also results from the ways in which the negotiators worked. Delegates negotiated informally, in separate committees, on separate parts of the Statute. This situation resulted in the fact that different terminology is used throughout the Statute, and certain parts of the Statute are not connected to each other.

The Rome Conference not only adopted the text of the Rome Statute of the International Criminal Court. Also, several resolutions were passed. One of these established a Preparatory Commission that was to work on various texts that were required for the creation of the Court. It had been decided that sixty States must ratify the Rome Statute before it would enter into force. This happened on 1 July 2002. On this date, the Assembly of States Parties passed the Rules of Procedure and Evidence, the Agreement on the Privileges and Immunities of the Court and the Elements of Crimes.

Organisation of the International Criminal Court

The International Criminal Court has Pre-Trial Chambers, Trial Chambers and Appeals Chambers. The Presidency, which consists of the President plus two Vice-Presidents, manages the Court. The Registry administers aspects of the Court that are not judicial. The existence of Pre-Trial Chambers may be seen as a middle way between common law systems and the French penal system. In the first cases before the International Criminal Court, there have been some tensions between the Pre-Trial Chambers and the Office of the Prosecutor. This has resulted in very long pre-trial proceedings. As is the case with the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Office of the Prosecutor is an essential part of the Court. The Rome Statute has extensive criteria for competent judges. For the first time in the Statute of an international judicial institution, there are criteria for a fair division between men and women who serve as judges. Another criterion is fair geographical distribution of the origin of the different judges.

The jurisdiction of the International Criminal Court

The Rome Statute of the International Criminal Court explains that the Court possesses jurisdiction over the gravest crimes with which the international community is concerned. These are war crimes, crimes against humanity, genocide and aggression. However, the Court cannot yet assert jurisdiction over aggression. First, the Rome Statute will need to be amended to include a definition of the crime of aggression. The Statutes of the two ad hoc Tribunals for the former Yugoslavia and Rwanda do not include extensive definitions of the crimes. However, the Rome Statute of the International Criminal Court has definitions of crimes against humanity and war crimes that are exceptionally detailed. It has been suggested that the principle of legality and the importance of certainty are reasons for this level of detail. It has also been argued, however, that States wish to prevent unintended prosecutions of their nationals. In addition to the definitions of the crimes, the broad liability principles in the Statute and the Elements of Crimes are also important for the substantive law of the Court. It has frequently been suggested that the aim of defining crimes is to codify customary law. However, codification also automatically develops such law. This is also the case with the Rome Statute of the International Criminal Court, which in certain respects go further than customary international law. However, some other provisions do not go as far as customary international law. The Rome Statute includes an article that ensures that this latter fact does not entail that customary international law will stop developing. The Court may only use the Statute, also where customary international law offers more or wider possibilities for prosecution.

It may be the case that other crimes will be added to the jurisdiction of the court in the future. At the Rome Conference, a resolution was adopted which advised that crimes of terrorism and drugs crimes be defined and included in the Court's jurisdiction. To date, these crimes are not in the Court's jurisdiction. However, States Parties are not obliged to acknowledge the jurisdiction of the Court over additional crimes if such crimes were allegedly committed on their own territory or with reference to their own nationals.

The relevant law

According to Article 21 of the Rome Statute of the International Criminal Court, the Court must predominantly use the Rome Statute, the Rules of Procedure and Evidence and the Elements of Crimes. The Court must also use certain sources of international law as supplementary means. These include treaties and international legal principles. If these sources do not suffice for answering a particular question, the Court must use general principles of law. Such general principles are laws found in domestic systems that are coherent with the Statute and with the norms of international law. However, these subsidiary sources of law can only be used by the International Criminal Court if two requirements are met. Firstly, there must be a gap in the black letter law in the three documents mentioned above. Secondly, certain articles of the Vienna Convention on the Law of Treaties and Article 21(3) of the Rome Statute cannot fill this gap.

Reasons to declare a case inadmissible, including the principle of complementarity

The International Criminal Court is meant as providing only the last possibility for prosecution in any case. In other words, the Court adds to rather than co-opts domestic jurisdictions. The Rome Statute also asserts that all States must use their own domestic jurisdiction to prosecute international crimes. This construction recognises that an international criminal institution may not always be the most successful forum for prosecuting international crimes. Practically, for example, domestic jurisdictions may have easier access to evidence. Also, this construction respects States' primary domestic jurisdictions. The principle that the International Criminal Court is complementary to domestic jurisdictions was agreed on early in the negotiations. In accordance with the principle of complementarity, the Court cannot exercise its jurisdiction if a domestic authority is trying or investigating the case, or if this has already been done. An exception to this rule is when domestic authorities are not able or not willing to try a case genuinely. Thus, in such cases, the International Criminal Court can exercise its jurisdiction. If a State is already conducting proceedings, the Court can take on the case if it determines that such proceedings are not genuine. The first Prosecutor of the Court, Luis Moreno-Ocampo, aimed to act in accordance with the principle by encouraging and assisting genuine domestic proceedings. It has to be decided if a case is admissible or inadmissible before the Prosecutor begins investigations and before the Prosecutor opts to prosecute a person. If a State refers a situation in its own territory to the Court, these questions are not likely to hinder the jurisdiction of the Court.

A case is only inadmissible with reference to the complementarity principle if a State has investigated, is investigating, has prosecuted or is prosecuting the case. In such instances, the ne bis in idem principle applies. These provisions lead to important questions. For example, what exactly is a 'case'? The Pre-Trial Chamber in the Lubanga case argued that the domestic proceedings must involve the same person and conduct as in the potential International Criminal Court case. Generally, it would be too strict to hold that the charges in both cases should be exactly the same. Also, another question is whether any State can hinder the exercise of jurisdiction by the International Criminal Court by exercising jurisdiction itself. Several States, for example, may initiate proceedings on the basis of domestic legislation that provides for universal jurisdiction. It can be asked, therefore, if proceedings on the basis of universal jurisdiction can also render a case inadmissible before the International Criminal Court.

An exception to the complementarity principle is where States are unwilling or unable to execute proceedings genuinely. This is the case even when there are actual domestic proceedings. Thus, if such domestic proceedings are not genuine, the International Criminal Court may nonetheless take on the case. However, the Prosecutor must show to the Court that the given State is unable or unwilling to carry out the trial genuinely. In the case of unwillingness, there are three possibilities. Firstly, the aim of the domestic prosecution is to protect the defendant from being held criminally accountable. Secondly, there is an unreasoned delay of the trial that conflicts with the aim of holding the defendant accountable. Thirdly, the way in which the trial is executed is not independent or neutral. However, the Court cannot decide to take on a case on any of these three conditions alone. It must also, simultaneously, take into account the rights of the suspect. It has been suggested that it is a duty of the Court to look into the independence and impartiality of domestic judicial systems. But the better view is that the lack of such conditions is only important if it suggests that persons are being protected from criminal accountability. Furthermore, the Rome Statute does not oblige the Court to monitor human rights standards of domestic courts.

Next to unwillingness, another exception to the complementarity principle is where the domestic court is unable to genuinely execute the trial. The criterion for inability is that the given State is not able to arrest the accused or obtain important evidence or witnesses or is in any other way not able to execute the trial. This must be due the fact that the domestic judicial system is at least significantly disintegrated or unavailable. If there is insufficient legislation this may also mean that a State is unable to prosecute. However, if a State prosecutes a person for domestic rather than international crimes, this may be a component of unwillingness to prosecute.

States may voluntarily refer cases over which they have territorial jurisdiction to the International Criminal Court. This is the case even if such a State is able to prosecute the person concerned. To date, States that have referred situations in their own territory include the Democratic Republic of the Congo, Uganda and the Central African Republic.

The Rome Statute of the International Criminal Court says nothing about its relation with truth and reconciliation commissions and amnesties. Thus, it is not clear whether domestically granted amnesties would bar the Court from asserting jurisdiction. It can also be asked if this should be the case. On the one hand, it can be argued that a person can be prosecuted even if that person has been granted an amnesty, because in such a case there would still not be any domestic investigation or trial. On the other hand, if an amnesty is granted with certain enquiries attached, then this may already mean that the case is inadmissible before the Court. The Prosecutor may come to the conclusion that investigating a case would be contrary to justice. In this case, the Prosecutor must communicate this to the Pre-Trial Chamber, that can determine that it will review the decision.

Apart from the principle of complementarity, there are also other reasons by which a case can be declared inadmissible. One of these, linked to the complementarity principle, is contained in the ne bis in idem principle. In this context, this principle means that the Court cannot prosecute a case that has already been prosecuted by another court. Two exceptions apply to this rule that are similar to those of the 'unwillingness' part of the complementarity principle. Firstly, a person was tried even though the motive of the trial was to protect that person from criminal accountability. Secondly, the trial was in another way not neutral and at odds with the aim of holding the suspect accountable. If one of these conditions applies, the ne bis in idem rule does not hold and the person may be prosecuted by the Court, even when the person has already been prosecuted for the same conduct.

A last reason to declare a case inadmissible is that the case is insufficiently grave. The gravity of a case must be taken into account by the Prosecutor when the Prosecutor chooses situations and cases. In this regard, significant factors are the scale and character of the crimes, the way(s) in which they were committed and what their influence is. After a situation has been selected, the Prosecutor may also distinguish between cases within that situation on the basis of their different gravities. The first Prosecutor stated that he would focus on trying those with the highest responsibility for the commission of crimes. This is not a legal demand, but a practical approach.

The admissibility of a case can be challenged. States with jurisdiction must hear of the possibility that a case will be brought before the International Criminal Court as soon as possible. The following parties can dispute the admissibility of a case: a State that has jurisdiction over the case and is trying or prosecuting that case; the indictee or defendant; and any additional State that is demanded to accept jurisdiction per Article 12 of the Statute. States that have not signed or ratified the Rome Statute of the International Criminal Court can also challenge the admissibility of a case. This is because an important aspect of the complementarity principle is that some judicial system is prosecuting genuinely.

It is not the case that States have the legal responsibility to enact laws that mirror the Rome Statute. Nonetheless, they do have an interest in doing so. This is because with such legislation States can try their own nationals, while the complementarity principle ensures that the International Criminal Court cannot take on such cases. Similarly, States may be encouraged to improve procedural norms, so that the International Criminal Court does not find that States are unwilling to prosecute.

Constructions that trigger proceedings

Trials can come into existence before the International Criminal Court by three ways. Firstly, a State Party to the Rome Statute of the International Criminal Court can refer a situation. Secondly, the United Nations Security Council can also refer a situation to the Court, under Chapter VII of the United Nations Charter. Thirdly, the Prosecutor can begin investigations into a case on their own initiative. It is important to note that the United Nations Security Council and States Parties only have the possibility to refer situations rather than cases to the Court. The Prosecutor can initiate investigations on cases, which entails the identification of suspects that the Court should investigate.

States that are Parties to the Rome Statute of the International Criminal Court can direct situations to the Court. If a State wishing to do this is not a Party to the Rome Statute, the State may address the United Nations Security Council or the Prosecutor, hoping that either will trigger proceedings. The States that have referred situations in their own territory are the Democratic Republic of the Congo, Uganda and the Central African Republic.

During the Rome Conference at which the drafting of the Rome Statute was concluded, some parties opposed the idea that the United Nations Security Council could refer situations to the International Criminal Court. However, it was also acknowledged that this could be practical and fitting. Because earlier the United Nations Security Council had already established the ad hoc Tribunals for the former Yugoslavia and Rwanda, the Rome Statute has not increased the powers of the United Nations Security Council. The Security Council can also charge additional responsibilities on States, such as the obligation to collaborate with the International Criminal Court. Nevertheless, the International Criminal Court is independent from the Security Council and its capabilities cannot be altered by the Security Council. In 2005, the United Nations Security Council referred the situation in Darfur to the Court.

In addition to the above two trigger mechanisms, the Prosecutor can also begin an investigation on their own initiative – or, in other words, proprio motu. During negotiations, there were fears that the Prosecutor would be able to initiate highly political or controversial investigations. However, negotiators also believed that the International Criminal Court should not only rely on referrals by outside actors (the Security Council and States Parties). Still, the Prosecutor has to obtain permission from the Pre-Trial Chamber, and the elaborate admissibility demands explained above also apply. A high amount of communications have reached the Prosecutor from individual persons and (non-governmental) organisations. As of January 2010, the Prosecutor had only initiated one investigation proprio motu, in Kenya.

Some have questioned whether the Rome Statute of the International Criminal Court allows that States refer situations over which they have territorial jurisdiction. However, the Rome Statute simply says that States Parties may refer situations; this would seem to include States with territorial jurisdiction. Indeed, self-referrals may enhance the legitimacy of involvement of the International Criminal Court in a situation and case. Nevertheless, there are also potential problems. For example, a government could refer a situation to the Court against those who oppose the government. There is also the possibility that a large amount of self-referrals would mean that the Court has more work than it can handle. However, the Prosecutor does not have the legal responsibility to initiate an investigation (or trial) on the basis of a self-referral. The Prosecutor could decide to not investigate a case if the case is insufficiently grave, if justice were not to be served or if the principle of complementarity were to be violated.

Three forms of jurisdiction

The jurisdiction of the International Criminal Court can thus be triggered in three ways. In all cases, the Court's jurisdiction must meet territorial, personal and temporal requirements. These requirements demand that the International Criminal Court can only assert its jurisdiction when any State Party to the Rome Statute or a State that has acknowledged the jurisdiction of the Court has territorial or active nationality jurisdiction. However, these requirements do not apply when the United Nations Security Council refers a situation to the Court. The motive for demanding the approval of a State with either territorial or active nationality jurisdiction is that they are the most accepted grounds of jurisdiction by States. Therefore, they provide an uncontroversial basis for the International Criminal Court to assert its jurisdiction. Of course, States can also take on a case on other bases, such as universal jurisdiction. But if a State Party to the Rome Statute has universal jurisdiction with respect to a case, this does not mean that the case can therefore be investigated by the Prosecutor. There was insufficient support for such a construction during the negotiations on the Rome Statute of the International Criminal Court. The International Criminal Court has automatic jurisdiction; this means that a State that has ratified the Rome Statute thereby automatically accepts that the Court has jurisdiction over the crimes included in the Rome Statute.

However, there is an exception to the automatic jurisdiction model used by the International Criminal Court. This is contained in Article 124 of the Rome Statute. This Article allows a State that ratifies the Rome Statute to decline to accept jurisdiction of the Court for seven years over war crimes if the State has territorial or active nationality jurisdiction. As of January 2010, there was only one State, Colombia, that had a declaration under Article 124 in force.

As has been mentioned, States that ratify the Rome Statute of the International Criminal Court automatically accept the Court's jurisdiction over the crimes in its Statute. However, it is also the case that States that have not ratified the Rome Statute may accept the jurisdiction of the International Criminal Court on an ad hoc basis. States that have not ratified the Rome Statute cannot refer situations to the Court. Therefore, even if a State that is not a Party to the Statute accepts the Court's jurisdiction, it cannot trigger the exercise of such jurisdiction in any direct way.

The Court cannot exercise its jurisdiction over persons under the age of 18 when the alleged crimes were commissioned. Naturally, this does not have any effect on domestic prosecutions of minors.

The International Criminal Court can only exercise its jurisdiction over crimes that were commissioned on or after 1 July 2002. Of course, several States have ratified or will ratify the Rome Statute after this date. In these cases, the International Criminal Court can only exercise jurisdiction on the basis of the territorial or nationality jurisdiction of such a State after that State's ratification.

Postponement of investigations or trials on the basis of Article 16

Under Article 16 of the Rome Statute of the International Criminal Court it is possible that no investigation or trial is initiated or continued with respect to any matter for a period of twelve months. The United Nations Security Council can request the Court to do this in a resolution if it acts under Chapter VII of the United Nations Charter. The United Nations Security Council may only act under Chapter VII of the United Nations Charter if there is a danger to or violation of peace or act of aggression. Requests for deferral of the same matter may be made more times. This construction acknowledges that building peace may be more important than attaining justice. Sometimes, it may be better for peace if investigations and trials are not undertaken. The United Nations Security Council may ensure this.

Execution of the decisions of the International Criminal Court

Domestic courts can depend on local police forces to obtain suspects in order to prosecute them. They may also use local detention buildings to incarcerate detainees and persons who have been convicted. However, the International Criminal Court must depend completely on the international community in this regard. The Rome Statute imposes the obligation on all States to collaborate with the Court in offering multiple kinds of aid, including the gathering of evidence and searching for assets. Also, the Rome Statute requires States Parties to deliver any individual within their respective territory to the Court when it demands that. The International Criminal Court may also demand information or alternative kinds of assistance from international organisations. No State has the obligation to imprison persons convicted by the International Criminal Court. Rather, the Court may select prison facilities on the basis of a list of States that have communicated that they are willing to imprison persons. When a State violates any of these or other obligations in the Rome Statute, the Court may direct the issue to the Assembly of States Parties. However, the Assembly of States Parties does not possess any power to impose binding obligations. If the matter concerns a United Nations Security Council referral, the Court may direct the State's violation to the United Nations Security Council. As of January 2010, all investigations by the International Criminal Court's Prosecutor pertained to violent and/or insecure situations. This means that it may be very difficult to find evidence. It has been argued that the Rome Statute of the International Criminal Court can do little in such situations to ensure that all parties nonetheless adhere to the Court's decisions.

Hostility towards the International Criminal Court

From a large part of the international community, the International Criminal Court has received significant support. However, there is also important opposition to the Court. This existed during the Rome Conference, and it rapidly became evident that the International Criminal Court would not be accepted by all States in the world (certainly not in its first ten years). A number of States has been particularly hostile to the International Criminal Court. Perhaps the most prominent and vocal among them is the United States of America. The United States did sign (but not ratify) the Rome Statute, on 31 December 2001. This may have been out of hope that certain parts of the Rome Statute could be changed in the future and that after that the United States could ratify the treaty. Under the Vienna Convention on the Law of the Treaties, a signature by a State means that that State is not allowed to frustrate the aims of the treaty if that treaty has entered into force. This is the case until the signatory State clearly communicates that it does not wish to become a Party. The United States, and later Israel, made such communications in 2002.

One of the most important legal arguments against the International Criminal Court is that its Rome Statute allows it to assert its jurisdiction over nationals of a State which has not ratified the Rome Statute without the authorisation of such a State. It can be argued that this is in violation of the Vienna Convention on the Law of Treaties. This Convention states, among other things, that treaties do not impose obligations on or create rights for States without their approval. However, if the International Criminal Court were to assert jurisdiction over a State not a Party to the Rome Statute and without that State's approval, that would not impose any obligation on that State. This argument therefore does not hold. Similarly, it has been suggested that customary international law cannot support the exercise of jurisdiction by an international court of a national of a non-party State. In spite of this, international law does not hinder States from operating together by letting an international court do what they would have otherwise done individually.

There have been voiced more arguments against the International Criminal Court. But these are mainly concerned with legitimacy than with legal questions. For example, some argue that the International Criminal Court may co-opt domestic criminal systems, because the Court itself can decide whether a domestic jurisdiction is willing and able to genuinely deal with a given matter. In this argument the complementarity principle cannot function as intended, because it leaves too much power for the Court. This argument ignores the limitations in the Rome Statute on the selection of situations and cases. Also, the argument does not pay attention to the fact that States not Parties to the Rome Statute can circumvent the possibility of involvement of the International Criminal Court by prosecuting the crimes contained in the Rome Statute.

The hostility of the United States of America to the International Criminal Court has materialised in multiple efforts to preclude that the Court would prosecute nationals of the United States. The United States has enacted legislation that permits, among other things, the use of military force to free persons arrested by the International Criminal Court.

In 2002 and 2003, the United States pushed through two Resolutions through the United Nations Security Council with the purpose of further shielding its nationals from prosecution by the International Criminal Court. The Resolutions demanded that the International Criminal Court suspend any exercise of its jurisdiction involving servants of a State not a party to the Rome Statute of the International Criminal Court relating to conduct or omissions in the context of operations created or approved by the United Nations. After the passing of these two Resolutions there was insufficient support in the Security Council for further, similar resolutions. It has also been doubted, among others by the United Nations Security Council itself, whether the Resolutions were consistent with the United Nations Charter, the mandate of the United Nations Security Council and the successfulness of the International Criminal Court. The Resolutions were arguably made with reference to Article 16 of the Rome Statute. But it is not clear that this Article was intended for such resolutions. From the negotiating history it becomes clear that Article 16 was meant to allow the United Nations Security Council to consider whether or not proceedings at the International Criminal Court would affect international peace and security, and to possibly demand the suspension of proceedings on such grounds. The two United States-driven Resolutions did not serve this aim, however. They involved only hypothetical proceedings that could arise at some point in the future. Other, similar United Nations Security Council resolutions are still in force. These protect nationals of States not parties to the Rome Statute from International Criminal Court and other foreign judicial systems jurisdiction for all conduct in the context of the United Nations forces in Liberia and Sudan. These resolutions therefore interfere with the Rome Statute of the International Criminal Court and the four Geneva Conventions. The hierarchy of treaties created by the United Nations Charter means that United Nations Security Council resolutions are binding and override any other international arrangements. However, the International Criminal Court is independent from the United Nations Security Council and not bound by the latter's resolutions. It can be questioned whether or not United Nations Security Council Resolutions would hinder States from giving up persons as defendants to the International Criminal Court.

In addition to pushing through United Nations Security Council resolutions, the United States of America has also used other means to oppose the International Criminal Court. These include the signing of bilateral agreements with other States – some of which are parties to the Rome Statute. These agreements stipulate that the other State may under no circumstance surrender to the International Criminal Court any national, military servant or (former) official of either of the parties to the bilateral agreement. Such bilateral agreements have been created with reference to Article 98(2) of the Rome Statute, which states that the International Criminal Court may not ask a sending State to surrender an indicted person if such a surrender would conflict with its existent responsibilities under international law. Specifically, such responsibilities must be that the State would have to consent to the surrender. It seems that this provision also applies when such agreements enter into force following the Rome Statute's entry into force. The United States agreements apply to all United States citizens. However, this is not within the scope of Article 98(2), which only covers persons who have been sent by a State. Persons such as businessmen or tourists are of course not sent by a State. The validity of the United States agreements can therefore be doubted.

Apart from resistance to the International Criminal Court from the United States of America, other States have also opposed the Court in various ways. Some of these are African States. For example, in 2009 the African Union stated that it was deeply concerned about the fact that the President of Sudan had been indicted by the International Criminal Court. It also communicated that this indictment had negative consequences for the peace process in Sudan.

Evaluation

The International Criminal Court started off slowly. However, there has been made a very high amount of preliminary proceedings in the context of a majority of the ongoing situations and trials. The relationships between the various Chambers and between the Prosecutor and the Chamber have been developing with this increase in the Court's activities. Nevertheless, the International Criminal Court has been dealing too slowly with its case load. This is partly due to the fact that the international community is often hesitant to collaborate with the Court. This is the case while the Court continues to be reliant on the international community to execute arrest warrants, for example. The International Criminal Court has seen difficulties in debates involving situations where the ideals of peace and justice are seen to clash. Arguably, this has been the case in Uganda and Sudan, where the International Criminal Court has been criticised for its involvement. Another important factor is the discretion of the Prosecutor in selecting situations and cases within situations. Such selections will inevitably lead to criticism. In selecting situations and cases, the Prosecutor should take into account the fact that the Court's resources are limited, the need to be neutral towards government and rebel parties, and the necessity of keeping to the mandate of the Prosecutor.

Hybrid or internationalised courts - Chapter 9

 

Preliminary remarks

As has been explained thus far, increased efforts to ensure criminal accountability for international crimes has resulted in the creation of several international criminal courts and tribunals. In addition, the international community has collaborated with several individual States to set up non-international courts to try international crimes. There can be multiple reasons for not creating international courts while nonetheless prosecuting international crimes. Such institutions, like the International Criminal Court for the former Yugoslavia, can be sizable and costly. They can only prosecute a small number of cases and they tend to be geographically separated from where the crimes occurred. For that reason, in some instances courts have been created that had both international and domestic aspects. Such courts have been established in inter alia Kosovo, Sierra Leone, Cambodia, East Timor and Bosnia and Herzegovina. In each case, the reasons for the creation of the court and their legal and institutional designs are different.

Courts created by arrangements between the United Nations and individual States

One case in which a court was established after collaboration between the United Nations and a State was Sierra Leone. In 2000 the civil war in Sierra Leone between the Revolutionary United Front and the government was ended by intervention by the United Kingdom and a peace-building mission of the United Nations. Mutilation of civilians and the use of child soldiers were pervasive throughout the conflict. The United Nations and the State of Sierra Leone created the Special Court for Sierra Leone to prosecute crimes commissioned during the civil war. The President of Sierra Leone requested the United Nations Security Council thereto, which asked the United Nations Secretary General to begin negotiations with Sierra Leone. An agreement between the Secretary General and Sierra Leone produced the Statute of the Court on 16 January 2012. After domestic legislation had been enacted, the Special Court for Sierra Leone started operating in July 2002. The largest share of the judges at the Court were chosen by the United Nations Secretary General. The others were chosen by the Sierra Leonean Government. The Special Court for Sierra Leone does not form part of the municipal jurisdiction, and is not a subsidiary body of the United Nations Security Council. In its Statute and Rules of Procedure and Evidence it refers to international laws and municipal laws. The Court considered that it could establish what its own jurisdiction was. It was decided that the Court must also be able to prosecute those who had received amnesties under domestic law. Therefore, the Court was established as an international court.

The Special Court for Sierra Leone confirmed that amnesties did not prevent prosecution of international crimes. The jurisdiction of the Court is limited to persons with the greatest responsibility for grave breaches of the law of war and domestic law commissioned in Sierra Leone on or after 30 November 1996. A significant challenge was the question what should be done with the child soldiers who had commissioned grave crimes at the time of civil war. It was decided to bar jurisdiction over persons who were under the age of fifteen at the time of the alleged crime. There were special provisions regarding the treatment of defendants and convicted persons between fifteen and eighteen years of age. In addition to crimes included in domestic legislation, the Court also had jurisdiction over war crimes in non-international armed conflicts and crimes against humanity. The definitions of crimes against humanity and war crimes in the Statute of the Special Court for Sierra Leone were very similar to those in the Statute of the International Criminal Court for Rwanda. As of January 2010, the work of the Court was being completed. The Court had issued arrest warrants for thirteen suspects. Eight persons were convicted. Former President of Liberia, Charles Taylor, was also prosecuted. He was the first person ever to be prosecuted after having been an African head of state. For security reasons, he was tried at the International Criminal Court in The Netherlands.

Another court established on the basis of cooperation between the United Nations and a State are the Extraordinary Chambers in the Courts of Cambodia. This court was established after the reign of the Khmer Rouge in Cambodia, from 1975 to 1979, had been ended by the Vietnamese army. It has been estimated that 1.7 million people died of various causes in this period. After these years, Cambodia requested help from the United Nations in prosecuting officials of the Khmer Rouge. After initial difficulties negotiations between the United Nations Secretary General and Cambodia led to an agreement, which was adopted by the United Nations General Assembly in May 2003. It is an international arrangement which cannot be negated by domestic legislation. In contrast to the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia are part of the municipal system of Cambodia and use domestic legislation.

The jurisdiction of the Chambers is to prosecute senior leaders of Cambodia during the time of the Khmer Rouge rule and those most accountable for breaches of Cambodian criminal law, international humanitarian law and international humanitarian custom, and international treaties acknowledged by Cambodia. The temporal jurisdiction of the Chambers is thus wholly retroactive. The bench of the Extraordinary Chambers in the Courts of Cambodia is of various origins. The majority in the Trial Chamber and the Supreme Court Chamber consists of domestic judges. However, a qualified majority is demanded for any decision. As of January 2010, four detained persons were awaiting trials for war crimes and crimes against humanity. One person, Kaing Guek Eav (Duch), had been convicted on both of these grounds and domestic penal law breaches. One of these detained persons was former Minister of Foreign Affairs Ieng Sary. He had been granted amnesty and a royal pardon. However, the judges of the Chambers held that the pardon and amnesty did not pertain to the counts with which Ieng Sary had been charged. On that basis, he was to be prosecuted nonetheless. In addition to the proceedings against the five persons mentioned, proceedings against others can also be initiated.

Another tribunal was established to prosecute those who were responsible for the assassination of Rafiq Hariri on 14 February 2005, the former Prime Minister of Lebanon. Lebanon asked for the establishment of an international tribunal. On request of the United Nations Security Council, the United Nations Secretary General began negotiating with Lebanon on the establishment of the tribunal. The Secretary General produced a draft arrangement including a statute. The Security Council approved of these documents. Lebanon signed the treaty, which was entered into force by the Security Council. The Special Tribunal for Lebanon is not an organ of the United Nations, nor of the domestic judicial system of Lebanon. A majority of its judges is international. The Tribunal is located in The Hague. Its jurisdiction is limited to prosecuting those with responsibility for the assassination of Hariri and additional crimes of a resembling character and seriousness, in a confined time period. The Special Tribunal for Lebanon uses domestic, Lebanese legislation, with a few changes. It possesses primacy over domestic judicial institutions in Lebanon. The treaty creating the Tribunal entered into force on 10 June 2007. The Tribunal started its work in March 2009.

Courts created by the United Nations or with additional international management

Two courts with similar institutional features are the Special Panels established in Kosovo and East Timor. In both of these States, the populations suffered greatly in efforts at attaining independence. In Kosovo, such violence involved inter alia an insurgency of Kosovar Albania and brutish responses on the part of the Serbian forces, involving ethnic cleansing. The North Atlantic Treaty Organization bombed the Federal Republic of Yugoslavia from March to June 1999. East Timor had been involuntarily occupied in 1975 by Indonesia. In 1999, the East Timorese population voted for independence in a referendum that occurred with much violence by militias supporting the Indonesian occupation. The violence halted after intervention by forces authorised by the United Nations. In the same year, the United Nations impermanently took over the sovereign operations of the former authorities in Kosovo and East Timor. These activities involved state-building projects, including efforts to rebuild the judicial systems in these States. Doubts have been raised as to whether the United Nations acted entirely democratically in East Timor and Kosovo. It was decided that special courts would be established in East Timor and Kosovo.

These had different aims. In East Timor, a court was to be created with the primary purpose of trying international crimes. In Kosovo, however, the International Criminal Court for the former Yugoslavia also had jurisdiction. The main aim of establishing a special court here was to contribute to the strengthening of peaceful links between the various groups, and to deal with a larger scope of crimes. The original plan in Kosovo was to create a transitional court with both international and domestic judges. The court was to have concurrent although primary jurisdiction together with additional courts. However, these ideas were politically delicate and expensive. Instead, there were only to be international judges, in the normal Kosovar courts. In this way, ethnic bias would not be present on the bench. The United Nations Mission in Kosovo appropriated the power to appoint an international prosecutor, investigate judge or court panel to specific cases in which this was deemed required. These were the so-called Regulation 64 Panels. They prosecuted a high amount of high-ranking or otherwise important persons. The international character of the Regulation 64 Panels contributed to their perceived neutrality. However, the level of the legal work of the Regulation 64 Panels has been questioned. As municipal courts, they used domestic legislation. The United Nations Mission in Kosovo originally determined that the Panels should primarily use the Yugoslav Federal Criminal Code. Furthermore, international human rights law was explicitly added to the municipal judicial system. The Regulation 64 Panels have now been replaced by a European Union-led initiative. This is part of the larger co-optation by the European Union of the United Nations Mission in Kosovo under the name EULEX after the Kosovar declaration of independence. Judges of EULEX may exercise jurisdiction regarding cases dealt with by the Special Prosecution Office of the Republic of Kosovo. In East Timor there was the idea of creating an international criminal tribunal. But this was dismissed in favour of the establishment of a court within the municipal legal system. The United Nations Transitional Administration in East Timor created six district courts plus a Court of Appeal. All of these had jurisdiction in penal and civil matters.

Hereafter, the Serious Crimes Panels of the Dili District Court and the Court of Appeal were created. These had exclusive jurisdiction over specific, grave crimes; particular municipal crimes and crimes against humanity, war crimes and genocide. On their benches were both foreign and East Timorese judges. The latter formed a majority on every panel. The temporal jurisdiction was limited to crimes that occurred on or after 1 January 1999 but before 26 October 1999. The law used by the Serious Crimes Panels included regulations of the United Nations Transitional Administration in East Timor and various international laws. A tentative Code of Criminal Procedures was passed. The law of the former coloniser Portugal was also used. In May 2002 authority in East Timor was passed from the United Nations to the State of East Timor. The United Nations Transitional Administration in East Timor was exchanged for a different United Nations mission with lesser powers. The new mission did remain supportive of the Serious Crimes Panels. The Serious Crimes Panels stopped proceedings indefinitely in May 2005. Currently, international crimes are dealt with by ordinary courts. There was often an absence of cooperation, especially from Indonesia. This limited the successfulness of the Serious Crimes Panels.

Another example of a court with international elements is the War Crimes Chamber in Bosnia and Herzegovina. The War Crimes Chamber is part of the State Court, which has jurisdiction over both the Federation of Bosnia and Herzegovina and Republika Srpska. The War Crimes Chamber started its operations in March 2005. It was an initiative of the International Criminal Tribunal for the former Yugoslavia and the Office of the High Representative. The War Crimes Chamber is a very important component of the completion strategy of the International Criminal Tribunal for the former Yugoslavia. As a domestic court, the War Crimes Chamber can receive cases involving low-profile perpetrators from the Tribunal. This has been done several times. The War Crimes Chamber applies domestic law, relating to the gravest war crimes commissioned in Bosnia. However, it does not possess exclusive jurisdiction over war crimes. At the bench of the Chamber sit international judges. First they were chosen by the Office of the High Representative, but since July 2006 they have been nominated on the basis of domestic procedures. Domestic judges now constitute a majority.

Courts created by a State with international assistance

In Iraq, the thirty-five year authoritarian reign of Saddam Hussein resulted in the breaches of various international criminal laws. After the fall of Hussein, a court was set up to deal with crimes against humanity, war crimes and genocide, primarily as commissioned by the former regime. The court started as the Iraqi Special Tribunal. This Tribunal had not been established by the United Nations, by means of a treaty or immediately by the States that had invaded Iraq. Rather, the Iraqi Interim Governing Council was permitted by the Coalition Provisional Authority to create the Iraqi Special Tribunal in December 2003. The content of the Statute of the Tribunal had influenced considerably by the international community. The Iraqi Special Tribunal was transformed into the Iraqi High Tribunal with a domestically adopted law. This law addressed concerns about the legitimacy and legal validity of the Iraqi Special Tribunal. The temporal jurisdiction of the Iraqi High Tribunal ranges from the coup d'état of Hussein's Ba'athist party to 1 May 2003. The Tribunal has primacy over but concurrent jurisdiction with all other courts in Iraq. In certain cases, the Tribunal may breach the ne bis in idem principle by prosecuting a person who has already been tried by another domestic court in Iraq. The bench and the prosecutor are all nationals of Iraq. The power of the Tribunal to sentence a person to the death penalty has made many States and non-governmental organisations hesitant to collaborate with the Tribunal. In the first trial at the Court, Saddam Hussein was convicted for crimes against humanity. His death sentence was enforced.

Another domestic court created with international assistance is the War Crimes Chamber of the Belgrade District Court in Serbia. This court also tries international crimes. It was established with the help of the Organization for Security and Co-operation in Europe. Nevertheless, it is completely domestic in character. The War Crimes Chamber and a Prosecutor's Office for War Crimes were set up in 2003. The geographical jurisdiction is limited to crimes committed in the former Yugoslavia, irrespectively of the nationality of either perpetrators or victims.

Lockerbie

A quite different approach was taken with respect to the prosecution of two nationals of Libya accused of bombing a flight over Lockerbie, Scotland, in 1988. The Court, Prosecutor and the relevant laws were Scottish. Nevertheless, the Court sat in the Netherlands, which was deemed more neutral. Libya only approved of the transfer of the two suspects from its territory on the basis of an ad hoc agreement. This settlement was agreed on by Libya, the United Nations, the United States of America and the United Kingdom. Scottish legislation had to be altered for a Scottish court to be allowed to work in another State without a jury. This is not an instance of an international court or of a domestic court prosecuting international crimes, but of an ad hoc agreement reached at the international level to hold a municipal trial.

Links with the International Criminal Court

It can be asked how the partially international courts and tribunals described above are linked to the International Criminal Court. In most cases, the jurisdictions of these courts is not incompatible with that of the International Criminal Court. This is due to the non-retroactivity principle of the International Criminal Court contained in the Rome Statute. However, some of these partiality international courts have no end date to their temporal jurisdiction. This means that they can also prosecute future crimes within their respective jurisdictions. Most of the internationalised courts are components of their respective municipal systems. Therefore, the complementarity principle in the Rome Statute would mean that the International Criminal Court would only have supplementary jurisdiction.

Evaluation

It should be noted that the use of international courts in one instance and internationalised courts in another does not imply that the latter deal with less grave crimes. The Extraordinary Chambers in the Courts of Cambodia and the Special Court for Sierra Leone, for example, had to prosecute especially inhumane atrocities. A problem that virtually all of the internationalised or hybrid courts have had is the lack of monetary and other resources. They mostly draw resources from voluntary assistance from individual States. Because such courts are not created by the United Nations Security Council, States have no obligation to fund them. Lack of funding may hinder the successfulness of courts, their perceived neutrality and the right of the defendant to a just trial. Furthermore, in post-conflict societies judicial institutions are sometimes weak. This may mean that judges are subjected to political or other agendas, or otherwise see their independence compromised. However, there are also positive aspects to having internationalised rather than international courts. Such courts are often said to have a positive impact on the municipal systems in which they are located. All such courts are designed to contribute to strengthening local capacity, support for the rule of law and prosecuting past as well as future crimes. In the context of these aims, internationalised courts are often accompanied by outreach programmes. Internationalised courts also help to develop international legal criminal case law.

Genocide - Chapter 10

 

Preliminary remarks

One important crime in international law is genocide. Genocide involves the negation of the right to live of whole human groups. An analogy may be homicide, which is the negation of the right to live of an individual person. Genocide is aimed at the same time at human groups, the individuals of that group and human variety in general. In non-legal contexts, genocide often refers to massive killings. In international law, however, the notion is narrower. It is used for a specific subset of brutalities that are commissioned with the aim to annihilate groups. This intent is what separates genocide from the other international crimes. Because of this genocide is sometimes deemed the gravest international crime. Multiple acts that are legally not genocide may nonetheless form crimes against humanity. Due to its gravity genocide is a jus cogens norm, as well as an erga omnes responsibility of States. If international crimes, generally, can be attributed to a State, this may lead to State responsibility. This is also the case with genocide. Before the International Court of Justice in the Bosnian Genocide case, Bosnia accused Serbia of having violated the Genocide Convention. The International Court of Justice acknowledged that the Genocide Convention means that States must not only preclude and penalise genocide, but also avoid committing it themselves. This does not mean that States are therefore potentially criminally liable under the Genocide Convention.

The most accepted and used definition of genocide is found in Article II of the Genocide Convention. This definition was copied literally into the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Article II of the Convention states that genocide is any of five acts conducted with the aim to annihilate, partly or entirely, an ethnic, racial, national or religious group, as such. These five acts are: killing individuals who belong to one of these groups; generating grave physical or mental harm to such individuals; deliberately forcing life conditions on the group that are designed to destroy that group partly or entirely; enforcing measures designed to preclude births within the group; coercively moving children belonging to the group to another group. Virtually all of these words have led to different interpretations.

Genocide became an international crime as a reaction to the Holocaust. Atrocities with the purpose of annihilating ethnic or national minorities had of course occurred before the Second World War. However, the word 'genocide' was only invented in 1944, by Polish lawyer Raphael Lemkin. In the indictment of the accused before the International Military Tribunal at Nuremberg, it was stated that the accused had committed genocide against Poles, Jews and Gypsies. However, genocide was not a crime under the jurisdiction of the International Military Tribunal. Its Judgement does not use the notion. United Nations General Assembly Resolution 96(1), adopted in December 1946, recognised that genocide is not necessarily conceptually linked to armed conflict. In 1948, the Genocide Convention was finalised. It entered into force in January 1951. Also in 1951, the International Court of Justice stated that the forbiddance of genocide in the Convention was also customary international law. The Genocide Convention mentions that it would be possible to prosecute genocide at an international judicial institution. This became possible in the 1990s with the creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda. In 1998, the International Criminal Tribunal for Rwanda became the first international court to convict a person, in this case Jean-Paul Akayesu, for genocide.

The crime of genocide has natural links to crimes against humanity. The defendants at the International Military Tribunal were tried for crimes against humanity and war crimes, but for conduct that would now be considered genocide. Genocide is normally a kind of crimes against humanity. Genocide and crimes against humanity can be commissioned during war as well as during peace. There is, however, an important difference between the two categories. This is that genocide requires the aim to annihilate a human group partly or entirely, as described above. The concept of crimes against humanity does not have this requirement. Also, the protection offered by genocide is narrower. It only concerns destruction, while crimes against humanity protects against discrimination. Under crimes against humanity, the kinds of groups that can be protected are also more. Crimes against humanity has an objective demand of scale; it must be widespread or systematic. Similarly, war crimes can only be committed when an armed conflict is taking place. Genocide does not have any such requirements. Rather, its most prominent feature is the mens rea requirement of intent to destroy, described above.

The mens rea requirement of genocide has raised significant questions about its nature. For example, would it be possible that a person commits genocide, satisfying the mens rea requirement, but acting entirely individually? This would seem to be unrealistic. Also, must there be a common plan to commission genocide before it is actually commissioned? The International Criminal Tribunal for the former Yugoslavia answered in the Jelisić case that it is possible for a person acting individually to commit genocide. The Tribunal also held in this case that a common plan is not necessary. However, case law and academic authors tend to argue that one single person cannot commit genocide alone, and that a common plan is indeed necessary. To argue otherwise could be to water down the gravity of genocide. It is not a formal demand that genocide be committed with a plan. However, it is often presumed that such a plan is practically necessary. So too is the involvement of multiple protagonists. One exception may be a situation in which one person with the genocidal intent commits crimes in cooperation with persons who are committing crimes against humanity. The collective character and gravity of genocide can be expressed through the requirements of the actus reus or the mens rea. The International Criminal Court does the former by requiring that the conduct of the perpetrator occurs against the background of a clear pattern of resembling conduct. It thereby practically excludes isolated crimes. The other approach, focusing on the mens rea requirement, demands that there be a coordinated and massive plan to annihilate a group. Further, it is required that the perpetrator act knowing that their individual conduct is (likely) to contribute to the enforcement of the plan.

Groups protected by international law on genocide

Only certain groups are included in the Genocide Convention, and thus protected against genocide. These groups are religious, racial, national and ethnic. This list is exhaustive; groups that are not any of these characteristics are not protected by the Convention. During and after the negotiation of the Genocide Convention there were efforts to include additional groups, for example political and social groups. These efforts have been unsuccessful. The Genocide Convention has been attacked because of its narrow scope. Arguments have been made, including in the Akayesu case before the International Criminal Tribunal for Rwanda, that the Convention protects any constant and enduring group. The better view, however, is that this is not the case. Nevertheless, a similar argument was made by the Commission of Inquiry mandated to scrutinise breaches of international human rights law and humanitarian law in Darfur, Sudan. The Commission of Inquiry argued that a broad protection against genocide is now part of customary international law. However, there is very little proof for this contention. At the domestic level, certain States have adopted broader definitions of genocide.

The four groups protected by the Genocide Convention are thus religious, racial, national and ethnic. Unluckily, there does not exist any internationally accepted definition of these four notions. This is made difficult inter alia by the fact that these categories overlap significantly. In several judgements, the International Criminal Tribunal for Rwanda has aimed to define the terms. However, such attempts are not likely to be overall successful. For example, the International Criminal Tribunal for Rwanda narrowly defined the category of ethnicity but subsequently could not define the Tutsi as an ethnic group. The Tribunal did so anyway on the basis of its (wrong) interpretation that the Genocide Convention covers any constant and enduring group. In this regard, it would be better to follow the Krštić Trial Judgement. Here, it was accepted that the list contained in the Genocide Convention is exhaustive, but that the four categories do not have specific or differing definitions. Rather, they support the definitions of each other. This approach means that it is not necessary to strictly ascribe one (but not another) term to a given group. Also, this approach honours the intentions of the negotiators regarding the closedness of the list.

It is evident that the actus reus of genocide must encompass acts targeted at members part of one of the four groups. As has been mentioned, it is not always easy to determine whether a given group is protected by the Genocide Convention. Neither is it always simple to ascertain that a particular individual is part of the group. Also, it should be questioned who is able to answer this latter question. One approach is the subjective one. This means that the individual victim is a member of the group if the perpetrator considers them to be a member of the group that the perpetrator is aiming for. This interpretation may be particularly useful when the interpretation of the group by the perpetrator is not necessarily held exactly the same by society. Indeed, frequently groups are social concepts rather than given, objective facts. The drafters of the Genocide Convention assumed that the groups included in the Convention have this given, objective existence. But that this actually is the case is not at all clear. Such complications arose inter alia when the United States claimed that genocide had been committed in Darfur. The Commission of Inquiry determined that there were several conceptual problems with the determination that genocide had been committed. Nevertheless, on the basis of a partly subjective approach the Commission of Inquiry decided that the group of victims was protected by the Genocide Convention. Importantly, the Commission observed that the groups in question perceived themselves as different from one another.

However, there are also drawbacks to a wholly subjective approach. Differences observed by perpetrators and/or victims might not be real ones. Thus, the better view is that the group must somehow exist objectively. If this were not the case, the Genocide Convention could be abused for the defence of groups that are completely imaginary. The commonly accepted approach currently is a mixture of the objective and subjective approaches. Also, it is settled that it is impossible to define a group in a negative way. In other words, one cannot invent a group by collecting persons who do not share particular features with the perpetrator. For instance, 'non-Serbs' is not a group protected by the Genocide Convention. It can be the case that a person has a blended identity, belonging for example to two ethnic groups. In such cases, that person is treated as belonging to the targeted ethnic group in question.

The actus reus of genocide

It is not the case that any actus reus commissioned with the aim of destroying partly or entirely a group covered by the Genocide Convention is sufficient for a finding of genocide. Rather, there is a specific set of material elements of genocide included in Article II of the Genocide Convention. The Elements of Crimes of the International Criminal Court state that genocide can be committed against a single person. However, the Genocide Convention requires that the actus reus be committed against the group, not just one member of that group.

One important actus reus of genocide is killing members of the group, included in Article II(a) of the Genocide Convention. However, the word 'killing' is not very clear. It is not evident whether the word must be intentional or whether it only be may be intentional and can also be reckless. In the Kayishema Appeal Judgement, the International Criminal Tribunal for Rwanda, it was held that the actus reus must have the abovementioned special intent, but need not be deliberated beforehand.

Article II(b) of the Genocide Convention includes causing serious corporal or mental injury to persons who belong to the group. For a finding of genocide it is thus not necessary that killings occur. The District Court of Jerusalem in the abovementioned Eichmann case stated that serious corporal or mental injury can be produced by starvation, persecution, enslavement and deportation. This could also happen through people's confinement in ghettos and concentration and transit camps, in circumstances created to relegate people, to take away their human rights, to curb them and to make them suffer inhumanely, and from torture. In the Akayesu case, the International Criminal Tribunal for Rwanda importantly held that rape and sexual violence can form the actus reus of genocide. The Tribunal decided that sexual violence was an essential component of destruction of the genocide in Rwanda. The Elements of Crimes of the International Criminal Court adhere to the inclusion of rape and sexual violence in genocide. Relating to the inclusion of serious mental injury in the Genocide Convention, the United States of America was concerned that serious mental injury is too broad a concept. Actually serious mental injury entails more than minor mental harm. However, neither mental nor corporal harm must be permanent or incurable. Whether or not corporal or mental harm is serious is decided on a case-by-case basis.

Article II(c) of the Genocide Convention states that another actus reus of genocide is deliberately imposing on the group circumstances of life designed to cause the group's entire or partial destruction. This category concerns acts by which the perpetrator does not instantly kill the members of the group, but nonetheless acts so that these members will be physically destroyed ultimately. This actus reus is therefore not so much occupied with the immediate results, but with actions designed to accomplish the result. According to the Elements of Crimes of the International Criminal Court, circumstances of life may include deliberate dispossession of resources that are essential for survival, for example medical services or food. Circumstances of life can also relate to a systematic eviction from homes. The notion of forced migration of persons, also known as ethnic cleansing, has been dealt with under Article II(c) of the Genocide Convention. However, ethnic cleansing does not automatically constitute genocide. In the Eichmann case it was considered that ethnic cleansing, like any other material element of genocide, must be committed with the specific aim of destroying a protected group wholly or partly. Thus, ethnic cleansing is not genocide if the aim is 'merely' to displace (a part of) a group from a given territory. In other words, policies intended to make an area ethnically uniform per se are not genocide. The intent to destroy the displaced group wholly or partly must be present. This view was supported by the International Court of Justice in the Bosnian Genocide case.

Article II(d) of the Genocide Convention includes actions undertaken to avoid births within a protected group. This provision was included because the Nazis used to sterilise persons before the end of the Second World War. In the Akayesu case, the International Criminal Tribunal for Rwanda specified some measures that may fall under Article II(d). These include forced birth control, forbiddance of marriages, sterilisation, partition of the sexes and sexual mutilation. Also, in patriarchal societies, a perpetrator may commit genocide by impregnating a woman, whose child will not belong to the woman's group. Measures with the aim of preventing births may also be mental, when for example rape renders a person unwilling to reproduce. This actus reus is similar but not equal to the crime of forced impregnation.

Article II(e) of the Genocide Convention covers forcibly transporting children of the protected group to another group. There has been little judicial attention for this form of genocide. The Elements of Crimes of the International Criminal Court state that the child must be below eighteen years of age and that the word 'forcibly' does not only include physical force but also the threat of force or coercion. This provision was incorporated into the Convention as a compromise in the light of the fact that cultural genocide was not included in the Convention. The forcible transport of children of Aboriginals in Australia to non-indigenous areas has been said to constitute genocide. However, cultural genocide is not part of international law.

The Elements of Crimes of the International Criminal Court include an additional demand for the actus reus of genocide. This is to prevent that isolated, single crimes could fit the definition contained in the Genocide Convention. Therefore, the Elements require that the conduct in question occurred in the circumstance of a manifest pattern of comparable conduct targeting the same group, or that the conduct could by itself cause the partial or entire destruction of the protected group. It is important to note that comparable conduct is required, not intent. The first situation, in which the conduct of the perpetrator is part of a manifest pattern of comparable conduct against the same group, is more likely. The term 'manifest' means that the pattern must be evident; a few separated crimes spread over several years would not be sufficient. It is much less likely that the conduct of the perpetrator could alone effectuate the partial or entire destruction of a group. This could occur where the protected group is very small or where the perpetrator can use very powerful arms. In such situations it is not required that the perpetrator acts in the context of similar conduct, because the perpetrator poses a significant threat to the group anyway. The Elements of Crimes are ambiguous as to what mental element is required with respect to the circumstance of a manifest pattern of comparable conduct. The Elements state that the appropriate demand in this regard should be decided on a case-by-case basis. After the Krštić case the ad hoc Tribunals ceased using the context requirement in their cases. This requirement has been used by the Pre-Trial Chamber of the International Criminal Court, which has held that it is not inconsistent with the Rome Statute of the International Criminal Court. Rather, the Chamber has argued that the requirement is appropriate because genocide is the gravest international crime.

The mens rea of genocide

Broadly speaking, there are two aspects to the mens rea of genocide. Firstly, there must be the necessary intention to commission the specific act, such as killing. Secondly, there must be the special genocidal intent of destroying a protected group as such. This last requirement separates genocide from all other crimes. There are several issues to these requirements, which are discussed here.

One aspect that is of interest is the intent to destroy. The destruction meant there must be physical or biological. One means to this end is causing the death of members of the group. However, this need not be the case. There are also other forms of destruction, such as the social absorption of one group into a different group, or assaults on cultural features that shape a group's identity. However, these acts can only constitute genocide if they are committed with the intent to bring about physical or biological destruction. The idea of including in the Genocide Convention cultural genocide as such was rejected during negotiations. Also, customary international law considers that genocide is only concerned with a group's physical or biological (not cultural as such) destruction. The limitation of genocide in international law to physical or biological destruction was confirmed by the International Court of Justice in the Bosnian Genocide case.

Another important aspect is that the perpetrator must aim for the destruction of a part of or the entire group. This part of the definition of genocide has generated quite some controversy. This is because a conviction for genocide is thus made to depend in part on how broadly or specifically a court's idea of a group is constructed. For example, there is a geographical issue to this aspect. For example, the Hutu perpetrators of genocide did not wish to annihilate all Tutsis generally, but only those in Rwanda. It could be argued that Tutsis in Rwanda are a part of the relevant group, namely all Tutsis everywhere. However, it could also be argued that the relevant group was the Tutsis in Rwanda. This is an important difference, because only in the second case could it be argued further that the intent was to destroy the whole group. The International Court of Justice has observed that it is commonly acknowledged that genocide can be commissioned with the aim of annihilating a group within a geographically defined area. Another option is that genocide is committed with the intent to destroy a part of the group, rather than the entire group. The International Court of Justice and the case law of the ad hoc Tribunals indicate that the part of the group must at least be substantial. In several cases difficulties have arisen in relation to the question whether the whole group or at least a significant part thereof were targeted with the special genocidal intent. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has suggested that the prominence of targeted persons belonging to the group as well as the absolute and relative numbers targeted are important. The application of this decision in the Krštić case has been criticised. This is because the 7,000 to 8,000 Srebenica men who had been killed appeared to form a part of a part of a group.

Another significant aspect is that the perpetrator must have the intent to destroy in part or entirety the protected group as such. The words 'as such' were included in the Genocide Convention as a compromise between arguments in favour and against explicitly including motive. Some, but not all negotiators viewed this phrase as implying that there must be a motive. Normally, the motive for which a perpetrator commissions a crime is irrelevant (but the intention is not) to the question of liability in criminal law. However, the special nature of genocide seems to require attention for the perpetrator's motive. In this regard, it is relevant that the ad hoc Tribunals have sometimes observed that a perpetrator sought to or aimed at destroying a protected group. The ad hoc Tribunals have also made distinctions between the intent to commit genocide and the motive thereto. Personal motivation, such as the desire to benefit financially from a crime, are insignificant. However, the discriminatory aim is essential for a finding of genocide. Motives may be used to evaluate intent, even though not decisively so.

It is important to consider that genocide may be commissioned by more persons than those who lead and organise the genocide. It is also possible that those below the leadership are the principal perpetrators of genocide. This is so provided that the perpetrators have the demanded genocidal intent. The intent requirement for genocide is stricter than the ordinary intent for other international crimes, such as explained by Article 30 of the Rome Statute of the International Criminal Court. Therefore, it is likely that the intent requirement of Article 30 will not be used in genocide cases before the International Criminal Court (although possibly so for a few forms of liability for genocide). One situation in which it may be difficult to ascertain genocidal intent is in an armed conflict, where persons may be killed with genocidal intent but also solely with the intent of defeating the opposing side in the conflict. In the Krštić case the defence, accused of genocide, argued that the latter situation was the case. However, both the Trial Chamber and the Appeals Chamber held that the perpetrators knew that their conduct would inevitably mean that the Bosnian Muslims at Srebrenica would physically disappear. It was also found that there was a forceful intent to destroy this group. General Krštić himself, however, was not guilty of genocide, according to the Appeals Chamber. The Appeals Chamber found that General Krštić was aware that some of his staff had genocidal intent. But this awareness was found insufficient for a conviction of genocide as a principal perpetrator. Similarly, the Darfur Commission has found that the actus reus of genocide cannot lead to a conviction for genocide without the special genocidal intent.

Of course, there must be proof of the special intent (or dolus specialis) to commit genocide. In practice, there may be no direct evidence of this. In such cases, the ad hoc Tribunals have been willing to deduce the special genocidal intent from contextual evidence, for example the conduct and utterances of the defendant. The International Criminal Tribunal for Rwanda has suggested that genocidal intent may be deduced from the actions of persons other than the accused, but this argument is not necessarily supported by international law. Nevertheless, the Trial Chamber in the Stakić case held that all the evidence should be taken into account together, rather than all pieces of evidence separately.

This approach to the special genocidal intent requirement has been attacked, however. For example, ordinary soldiers are likely to abide by orders without automatically having the special intent to destroy a protected group as such in whole or in part. Courts may find it attractive to use ambiguous evidence as a basis for a conviction for genocide. To avoid this, there have been suggestions that the genocidal mens rea threshold could be lowered. One suggestion is that a perpetrator can be convicted if that perpetrator acts in advancement of a campaign that targets persons belonging to a protected group, while the perpetrator knows that the aim or manifest result of that campaign is the partial or entire annihilation of that group. This approach approximates the content of Article 30 of the Rome Statute of the International Criminal Court. However, some argue that the current approach focusing on purpose rather than knowledge is inconsistent with the Genocide Convention. According to this idea, there is a distinction between the collective intent that is evident in the genocidal campaign on the one hand and the individual intent, which entails only knowledge of this campaign plus foresight or carelessness, on the other hand. This idea recognises that genocide is typically a collective rather than individual crime. In the Krštić case, the Appeals Chamber argued nonetheless that each individual perpetrator must have the special genocidal intent to destroy. This remains the norm demanded by international criminal case law. Nevertheless, there are exceptions to this rule in the form of a few forms of liability, such as joint criminal enterprise and aiding and abetting. As noted above, General Krštić was acquitted of genocide, because he lacked the specific intent demand. But he was found guilty for aiding and abetting genocide.

Additional modes of liability for participation in genocide

Article III of the Genocide Convention includes the modes of liability for genocide. Article III(a) contains (principal perpetratorship of) genocide. The subsequent sub-articles contain conspiracy to commission genocide; immediate and public encouragement to commission genocide; effort to commission genocide; and, lastly, complicity in genocide. These acts are also contained expressly in the Statutes of the ad hoc Tribunals. The International Criminal Court has an alternative construction.

Crimes against humanity - Chapter 11

 

Preliminary remarks

Crimes against humanity have been committed throughout the entire history of humanity. Nevertheless, crimes against humanity only became prohibited by international law in the twentieth century. And only in the last two decades has the crime been defined more clearly. Originally, crimes against humanity had rather inconsistent definitions across a variety of international legal instruments. In the last years, an increase in the size of case law, international legal instruments and commentaries has elucidated the extent and definition of crimes against humanity. Crimes against humanity may involve different material elements; for example, torture, persecution, sexual slavery, rape, murder and additional inhumane conduct, commissioned in a particular context. This particular context distinguishes crimes against humanity from crimes that might only fall under domestic jurisdictions. Thus, a person may be guilty for crimes against humanity by commissioning an inhumane act within a broader context.

The most important early mention of crimes against humanity as a legal term was made jointly by Russia, Great Britain and France in 1915. This was in response to the mass-scale murders of Armenians by Turkey. Following the First World War, there was an international war crimes commission. This commission advised that there be created an international tribunal to prosecute war crimes as well as breaches of the laws of humanity. However, the United States of America disagreed with prosecutions on the basis of laws of humanity, and no further action was taken in this regard. However, crimes against humanity were prosecuted at the International Military Tribunal in Nuremberg. Such crimes were included in the Charter of the International Military Tribunal so that crimes committed by the Nazi government against its own citizens could also be prosecuted. This was not covered by the category of war crimes.

The actus reus of crimes against humanity in the Charter of the International Military Tribunal encompassed deportation, enslavement, extermination, murder and other inhumane conduct. The definition of crimes against humanity in the Charter of the International Military Tribunal has a few notable features. Firstly, crimes against humanity may be committed against any civilian population. This formulation means that crimes commissioned against a State's own population could also be prosecuted. This was a significant development, because around that time international law had only very little to say about how a government handled its own citizens. Secondly, the conduct mentioned above must be in the carrying out or linked to the crime of aggression or war crimes. Practically, this requirement entailed that crimes against humanity could only be commissioned with some link to armed conflict. Thirdly, the mentioned acts must be committed any civilian population. It was thought that the word 'population' demanded some scale, but this was not made exact either in the Charter of the International Military Tribunal or in its Judgement.

It has still not been debated decisively whether the Charter of the International Military Tribunal merely acknowledged a crime that already existed or whether it created the category of crimes against humanity. Many who argued the latter also held that the need for accountability was greater than the value of the principle of non-retroactivity. In other words, even if the Charter used law retroactively, the greater injustice would have been to leave unpunished those who had committed grave atrocities. Because of the unclarity in the position of crimes against humanity the Judgement often did not clearly distinguish between crimes against humanity and war crimes. The Charter of the International Military Tribunal for the Far East as well as the Control Council Law No. 10 used similar definitions of crimes against humanity. The latter added torture, imprisonment and rape as possible material elements of crimes against humanity. The Control Council Law No. 10 did not demand a link to aggression or war crimes. The notion of crimes against humanity was supported by United Nations General Assembly Resolution 95(I) of 1946. In the following years, however, little was done with this international crime.

This changed in the 1990s with the establishment of the two ad hoc Tribunals for the former Yugoslavia and Rwanda. The Statutes of the Tribunals based their notion of crimes against humanity on that of the Control Council Law No. 10. In the Statute of the International Criminal Tribunal for the former Yugoslavia the circumstantial element is that the crime should be commissioned in international or internal armed conflict and should target any civilian population. The term population was understood to require a systematic or widespread attack. This was the same for the Statute of the International Criminal Tribunal for Rwanda, except that this Statute did not demand an armed conflict as the context but rather that the attack be committed on political, ethnic, racial, religious or national grounds. The Rome Statute of the International Criminal Court includes the same acts mentioned before, but adds to them sexual violence, sexual slavery, forced transport of population, enforced prostitution, enforced disappearance, apartheid, and enforced sterilisation. The Rome Statute does not have the previous contextual requirements of the armed conflict nexus or discriminatory grounds. Rather, the contextual requirement is that the crime against humanity must be commissioned as component of a widespread or systematic attack that targets any civilian population. Supplementary means by which crimes against humanity can be defined are, among other documents, the Elements of Crimes of the International Criminal Court, domestic and international jurisprudence and instruments belonging to other (internationalised or hybrid) courts.

Crimes against humanity can usefully be linked to other international crimes. One of these is war crimes. War crimes and crimes against humanity indeed often coincide. This might be the case when civilians are killed on a massive scale in the context of an armed conflict. However, they also differ in important ways. For example, crimes against humanity need not take place in the circumstance of an armed conflict. Also, it is necessary that crimes against humanity be committed as part of a widespread or systematic attack. But war crimes can be committed as isolated, separate crimes. Moreover, there is a difference between the two in terms of whom they protect. War crimes law mainly protects the nationals of parties to an armed conflict, whereas the law on crimes against humanity protects any person irrespectively of their nationality. Lastly, war crimes law is also concerned with actions on the battleground and actions targeting military objectives, whereas crimes against humanity law mainly pertains to conduct that targets civilian populations. Apart from war crimes, genocide was originally conceived of as an especially abominable kind of crime against humanity. However, laws on the two crimes have evolved and this original idea is no longer very useful. Nonetheless, virtually all instances of genocide would also fulfill the demands of crimes against humanity.

General requirements: the circumstantial threshold

There has always been some contextual requirement for crimes against humanity. But these standards have evolved.

The Charters of the International Military Tribunal and the International Military Tribunal for the Far East demanded a link to aggression or war crimes. Thus, practically, they demanded that crimes against humanity be committed in the context of an armed conflict. This requirement appears to have become outdated. It was not required by the Control Council Law No. 10. Later jurisprudence of military tribunals did not agree on the question whether there should be a link to an armed conflict. Later international instruments did not require this. An exception to this development was the Statute of the International Criminal Tribunal for the former Yugoslavia, which demanded a nexus to an internal or international armed conflict for crimes against humanity. This requirement was dropped in the later Statute for the International Criminal Tribunal for Rwanda. It neither appeared in the Rome Statute of the International Criminal Court. Currently it appears generally accepted that crimes against humanity may also occur without an armed conflict.

Another requirement that may have become outdated is that crimes against humanity be committed on discriminatory grounds. This is contained in the Statute of the International Criminal Tribunal for Rwanda. However, case law at this Tribunal indicates that this requirement only applies to this Tribunal. The requirement of discriminatory grounds was not included in the Rome Statute of the International Criminal Court. Except for the persecution, this requirement is not supported by customary international law.

Another requirement is that the crime against humanity be committed as part of a widespread or systematic attack. This requirement appeared in the 1990s as the established form of contextual demand for crimes against humanity. There are still a few unresolved aspects to this requirement. It need only be proven that the attack is widespread or systematic. Because the attack must target a civilian population, however, some argue that the crime can only be both (at least a bit) systematic and (at least a bit) widespread. The notion of 'widespread' has been described in different ways in relation to the size of the attack and quantity of victims. But there is no authoritative number linked to it. Likewise, the notion of 'systematic' has also been specified in different ways, particularly in the Akayesu and Blaškić cases. However, it has been argued that the thresholds set in these cases for 'systematic' were too high. Rather, this word currently seems to require that the conduct is organised and that it is unlikely that they would happen randomly. The word 'attack' does not require that armed force is used. 'Attack' can also refer to maltreatment of civilians. The jurisprudence of the ad hoc Tribunals as well as the Rome Statute of the International Criminal Court state that there must be a plurality of acts or a plurality of victims before it can be said that the attack targeted a civilian population.

However, the fact that crimes occur on a widespread or systematic scale does not mean that they are crimes against humanity. All the single crimes must be connected, so that it can be said that they constituted an attack directed at a civilian population. It is not agreed on whether a policy is required in this regard. On the one hand, domestic jurisprudence concerning crimes against humanity often suggests that the crime against humanity must be a governmental policy. At the Rome Conference during which the Rome Statute of the International Criminal Court was negotiated the negotiators disfavoured not including any reference to governmental policy. The reason for this was that widespread but unrelated crimes could be said to be an attack. Therefore the Rome Statute states that an attack must involve a policy of a State or organisation. The requirement of a policy is favoured in some judgements produced by the two ad hoc Tribunals but opposed in other judgements. Overall, therefore, it is not clear whether international customary law does or does not require that crimes against humanity involve some sort of policy.

It is important that issues like these are resolved, so that international criminal law becomes clearer and more legitimate. With respect to the question of the policy aspect of crimes against humanity, it can be suggested that the unclarity is based on disagreements over what the policy aspect actually means. Some people disfavour the policy element, but agree that random and disconnected crimes are not crimes against humanity. For others, the exclusion of disconnected crimes is exactly what the policy element is about. They argue that the organisation of such crimes by a (State or non-State) policy means that crimes against humanity cannot be disconnected. Moreover, the fact that an attack must target a population implies that disconnected and random crimes cannot do this. Where the policy aspect is required, it is often not taken as a very high threshold. Firstly, it is not necessary that the policy has been formalised, or even that it is explained evidently and exactly. Secondly, the policy requirement is satisfied when it is shown that random occurrence of the various actions is improbable. In other words, the policy aspect may be deduced from the facts. Thirdly, the policy requirement does not demand that the State or other organisation act. Rather, it is sufficient that the State or other organisation expressly or implicitly agrees on or endorses the conduct. Also, it can be enough that the State or organisation does not act at all, in order to stimulate the commission of crimes.

Another important phrase of the International Criminal Court's definition of crimes against humanity is 'any civilian population.' The word 'population' in 'any civilian population' implies a relatively sizable number of persons. But it is not necessary that a complete population be targeted. The word 'any' emphasises that, unlike war crimes, crimes against humanity do not protect a defined or limited civilian population but rather any such population. Nationality or affiliation is not of significance for crimes against humanity. The word 'civilian' refers to non-combatants and excludes combatants. However, it has been pointed out that after the Second World War persons were convicted for having committed crimes against humanity against combatants too. Nevertheless, the major institutions of international criminal law exclude the possibility that combatants in combat situations can become victims of crimes against humanity in their statutes and judgements.

It is not clear, however, whether members of the military service outside circumstances of combat can become victims of crimes against humanity. But it would appear that this is indeed the case. One argument in favour hereof is that the targeted population need only be primarily rather than exclusively civilian. Also, several cases in international criminal law have included military personnel outside of combat situations as persons protected against crimes against humanity. The rationale behind this exception seems to be that the law on crimes against humanity seeks to leave out military conduct targeting legit military objectives with respect for international humanitarian law. Indeed, case law produced by the ad hoc Tribunals only demands that civilians be the chief object of the attack. This jurisprudence has also used international humanitarian law to assess whether or not there had occurred attacks targeting a civilian population. Unfortunately, recent cases before the International Criminal Tribunal for the former Yugoslavia have made this situation more difficult. The Appeals Chamber decided in Martić that the word 'civilian' should be defined in accordance with Article 50 of Additional Protocol I. This Article omits military personnel hors de combat. Alas, this means that a widespread attack targeting prisoners of war could not be prosecuted as a crimes against humanity. However, in another interpretation the term 'civilian' could still be taken to mean 'non-combatant.'

Additionally, another significant question is that of the nexus between the defendant and the attack. This is not the same as the demands of the attack. The defendant must have acted against the law. This act must objectively fit into the wider attack. And the defendant must have been aware of this wider attack. It is not necessary that the act of the individual defendant be widespread or systematic; this is only demanded of the wider attack. It is also possible that the act of the defendant was the only act of the attack, but then this act must have been widespread or systematic. It is not necessary that the defendant is the engineer of the attack, nor even that he was engaged in establishing it or that he had the same aims as the attack. It is also not necessary that the act and the attack are of the same conduct. If the attack involves primarily sexual violence but the defendant enslaves a person, then the defendant is prosecuted for enslavement, not sexual violence.

Next to the mens rea demanded for the specific crime, it is also required that the defendant know of the wider context in which his conduct happens, that is to say the attack targeting a civilian population. Because this circumstance distinguishes crimes against humanity from other crimes, it must be shown that the defendant was aware of this context. Until now, the Tribunals have found that knowingly risking that one's conduct constitutes part of the attack or awareness or deliberate blindness hereof is sufficient. It is unsure whether the International Criminal Court will also ask this, or set another standard. But it seems that knowledge of an attack, if it is widespread or systematic, would be difficult to deny. Thus the mental element could be inferred from the context. As already stated, the mens rea involves awareness of the attack, not the same motive as the attack.

Forbidden conduct

There are various acts that may constitute crimes against humanity. The list of such conduct has slowly developed. The first of these lists was included in the Charter of the International Military Tribunal. It covered persecution, extermination, enslavement, murder, deportation and additional inhumane conduct. The Control Council Law No. 10 covered the crimes in this list plus imprisonment, rape and torture. This second list was adhered to by the ad hoc Tribunals. The Rome Statute of the International Criminal Court also included apartheid, enforced disappearance, forced pregnancy, sexual violence, enforced prostitution and additional sexual violence. This may seem like a considerable expansion of existing international law. But it can be argued that all these additions were already implicit in the phrase 'or other inhumane acts.' The following is an explanation of the different possible acts of crimes against humanity. Where nothing particular is said about the mens rea, the general mens rea requirements apply. In the case of the Rome Statute of the International Criminal Court, this means that crimes must be committed with knowledge of the significant context and intent. It is not necessary that the perpetrator considered that their acts were inhumane (or any other judgemental value).

One important act that can constitute a crime against humanity is murder. It is undisputed between the jurisprudence of the ad hoc Tribunals and the Elements of Crimes of the International Criminal Court that murder is the illegal and intentional causing of death of a human person. The mens rea of murder in the jurisprudence of the ad hoc Tribunals is intent to kill or intention to impose serious bodily injury that will plausibly cause death, plus recklessness as to the eventual survival or death of the victim.

Another act is extermination. Extermination, not murder, covers killings on a sizable scale. However, it is not necessary that the defendant personally executed or steered the mass-scale killings. Rather, it must be proven that the defendant killed within the circumstance of mass-scale killings. This circumstance is the most significant difference between murder and extermination. The perpetrator must, however, be aware of this circumstance. Another difference between extermination and murder is that the former, but not the latter explicitly also covers indirect ways of causing death. An important question is whether the perpetrator must personally bear responsibility for a significant quantity of deaths. According to the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, only one killing can also suffice, on the condition that the perpetrator has awareness of the context of mass-scale killings. The Elements of Crimes of the International Criminal Court also take this view. Regarding the actus reus, but not the mens rea, there are important overlaps between extermination and genocide.

Another crime against humanity is enslavement. This involves enforcing ownership-related powers over one or more human beings. This approach is present in the Rome Statute of the International Criminal Court, the jurisprudence of the ad hoc Tribunals as well as in the Slavery Convention of 1926 and the Supplementary Slavery Convention of 1956. Enslavement may involve the use of people like chattels. Chattel slavery implies capturing, appropriating, selling, trading, transferring or disposing of persons with the intent to degrade them to slavery or to trade or sell them. The Rome Statute also includes trafficking in human beings, especially children and women. The Elements of Crimes also contain degrading a human being to a servile status in the crime of slavery. This is the same for forced labour. Answering whether or not labour is forced may involve looking at several international instruments, such as the Geneva Convention III, the International Covenant on Civil and Political Rights and the Forced or Compulsory Labour Convention. There are also other actions that may add up to enslavement.

Deportation or forcible transport are also crimes against humanity. They are particularly prominent when part of ethnic cleansing. Deportation or forcible transfer mean that persons are, in a breach of international law, displaced by coercion from an area in which they are legally present. Deportation is often used to describe displacement across the borders of a State. Forcible transfer is usually taken to refer to displacement within a State. The movement must be coerced, but not necessarily physically. For instance, the threat of force or psychological cruelty can also suffice. The displacement must also be illegal under international law.

Another crime against humanity is imprisonment. Imprisonment was first made a crime against humanity in international law in the Control Council Law No. 10. The notion 'imprisonment' is widely construed. This means that it is not necessarily limited to detention, but also covers circumstances resembling prisons or grave confinement. House arrests are also included. Of course, not all instances of imprisonment are a crime against humanity. For this to be the case, the imprisonment must be random. This requirement of arbitrariness implies that significant procedural breaches are required. The jurisprudence of the ad hoc Tribunals refers in this regard to imprisonment lacking due trial, or lacking a legal basis. The United Nations Working Group on Arbitrary Detention has added to the lack of a legal basis political imprisonment and (at least partial) non-adherence to international human rights standards concerning the right to a fair trial.

Torture is also a crime against humanity that was added by Control Council Law No. 10 and used by later international instruments. That torture is forbidden is recognised by many major international and regional human rights documents, among which are the Universal Declaration of Human Rights, the Convention against Torture, the International Covenant on Civil and Political Rights and the four Geneva Conventions. It is a jus cogens norm. For the definition of torture under crimes against humanity or war crimes especially the Convention against Torture of 1984 is important. Nevertheless, there remain some unanswered questions. One of these is whether it must be someone in official capacity (in other words, acting in the capacity of the State) who inflicts, instigates, consents to or acquiesces in the torture. The Convention against Torture states that this is indeed the case, but international case law on this question is ambiguous. Neither the Rome Statute nor the Elements of Crimes of the International Criminal Court require that it is a State official who commits torture. Another question revolves around the purpose with which the perpetrator tortures. The Convention against Torture states that the perpetrator must indeed have a particular purpose. Other international instruments as well as the case law of the ad hoc Tribunals deem the purpose aspect essential to the definition of torture. It has been held that this purpose requirement differentiates torture from inhuman treatment. Nevertheless, it is not yet clear whether or not customary international law concerning crimes against humanity demands that the actus reus be commissioned with a particular purpose. The Rome Statute of the International Criminal Court follows another approach to distinguish torture from inhuman treatment. This is that the former is more severe than the latter. Things are more complicated, however. This is because the Elements of Crimes of the International Criminal Court state that there is a purpose demand, but only with respect to torture as a war crime and not torture as a crime against humanity. The Rome Statute of the International Criminal Court adds that the perpetrator must have control or custody over the victim. Given the nature of torture, this does not seem a difficult requirement. The case law of the two ad hoc Tribunals indicates that rape can also be torture.

However, rape and other kinds of sexual violence can also be crimes against humanity in themselves. Rape was included for the first time in international criminal jurisdiction in the Control Council Law No. 10 cases. It was also covered by the Statutes of the two ad hoc Tribunals. The Rome Statute of the International Criminal Court developed this category of war crimes by adding to rape enforced sterilisation, sexual slavery, forced pregnancy, and any additional kind of sexual violence of resembling seriousness. The addition of these material elements was not deemed an enlargement of this category of crimes against humanity. Rather, the idea was to acknowledge that these acts, which had been committed in Rwanda and the former Yugoslavia, were inhumane conduct and as such crimes against humanity. The definitions of rape and other forms of sexual violence are the same for crimes against humanity and war crimes.

There are two parts to the crime of rape. One of these parts is a physical penetration of a sexual character. Some argue that the other part is the lack of consent. Others suggest that it is the existence of a coercive context. The actus reus has been described in various ways, differing in the degree of detail. The definition of it in the Elements of Crimes of the International Criminal Court is now uncontroversial. The other part of the crime of rape – lack of consent or existence of a coercive context – is less clear. Coercion was required by the early cases of the ad hoc Tribunals. Coercion is also a part of rape according to the Elements of Crimes of the International Criminal Court. This latter definition of coercion is more expansive than previous ones. Nevertheless, more recently cases before the ad hoc Tribunals have come closer to many domestic rape laws by not requiring coercion but only the lack of consent. Thus it may be the case that the Elements of Crimes do not adequately mirror the Rome Statute of the International Criminal Court.

Sexual slavery is a specifically grave kind of enslavement. The first material component of sexual enslavement is thus identical to enslavement. Furthermore, it is required that the perpetrator compels the victim to be involved in one or more actions that have a sexual character. Sexual slavery now covers many forms of conduct that formerly would have been deemed enforced prostitution. Enforced prostitution, however, does not pay sufficient attention to the violence involved in sexual slavery.

Nonetheless, enforced prostitution is itself a crime against humanity. It is forbidden by the 1949 Geneva Convention IV, where it is linked to a woman's honour. The Rome Statute of the International Criminal Court includes enforced prostitution as a war crime and a crime against humanity, without the nexus to honour. According to the Elements of Crimes of the International Criminal Court, enforced prostitution involves three components. Firstly, the perpetrator compels the victim to involve themselves in one or more actions of a sexual character. Secondly, this is done by force, the threat thereof or in a coercive context. Thirdly, it is demanded that the perpetrator or another individual (expected to) receive financial or other gains connected with the sexual conduct.

Forced pregnancy is also a crime against humanity. Forced pregnancy is recognised in the Rome Statute of the International Criminal Court. Previously it has been acknowledged in other international instruments. During the negotiations on the Rome Statute there was quite some controversy over the inclusion or exclusion of forced pregnancy. This is because the issue is immediately linked to questions of abortion. It was decided that questions of abortion would not be discussed in the crimes against humanity context, but rather in one focusing on human rights. Forced pregnancy has three elements. Firstly, a woman must have been made pregnant by force. Secondly, the woman must be illegally confined. Thirdly, the perpetrator must have impregnated the woman intending to change the ethnic make-up of a population or intending to seriously breach international laws in another way.

Another crime against humanity with a sexual nature is enforced sterilisation. The Rome Statute of the International Criminal Court is the first treaty that explicitly acknowledges that enforced sterilisation is a war crime and crime against humanity. Nevertheless, the crime had been tried before, with respect to illegal medical experiments during the Second World War. The Elements of Crimes of the International Criminal Court includes two components in the definition of enforced sterilisation. One is that the perpetrator takes away from the victim their biological capacity to reproduce. The other component is that this was done without medical justification and without the genuine acceptance of the victim. The requirement that the consent be genuine means that consent by deception does not count.

The final category of crimes against humanity with a sexual nature is a residual category. The Rome Statute of the International Criminal Court also covers other sexual violence the gravity of which resembles the other crimes against humanity with a sexual nature. According to the Elements of Crimes of the International Criminal Court, this category has three components. Firstly, the perpetrator commissioned conduct of a sexual character against one or more human beings, or compelled one or more human beings to involve themselves in conduct of a sexual character. Secondly, the perpetrator did so forcibly or by threatening to use force or coercively. Thirdly, the seriousness of the act resembled that of the other crimes against humanity of a sexual nature already mentioned.

There are more crimes against humanity that are not of a sexual nature. One of these is persecution. Persecution is about the intentional and seriousness taking away of basic rights against a group that can be identified or in a collective manner on forbidden discriminatory reasons. The Rome Statute of the International Criminal Court also demands that the persecution be linked with another crime or at minimum one inhumane action. The crime of persecution has only recently been developed relatively clearly. The ad hoc Tribunals have until now demanded for elements for persecution. Firstly, there must be a large or obvious denial. Secondly, what must be denied is a basic right, established in a treaty or in international customary law. Thirdly, this must be done on discriminatory grounds. Fourthly, the conduct must be of comparable seriousness to other material elements covered by the law on crimes against humanity. This definition of persecution was more or less followed in the definition of persecution used by the International Criminal Court. The definition is exact enough to function in criminal law. However, there is likely to stay some uncertainty as to what specific acts can constitute persecution. For example, in Kordić it was stated that there is no list either in treaty law or in case law that completely covers all material elements that can fall under the charge of prosecution. The jurisprudence of the ad hoc Tribunals provides that the seriousness of persecution must resemble that of other crimes against humanity. Before the International Criminal Court, this requirement of severity seems to be implied in the demand that the persecution must be linked to other acts and the requirement of a serious deprivation.

An essential characteristic of persecution is that the perpetrator must persecute on discriminatory grounds. The Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia state that such grounds can be religious, racial or political. The Rome Statute of the International Criminal Court permits these grounds as well as national, gender, ethnic and cultural grounds, as well as other grounds. However, these other grounds must be globally acknowledged as not being permitted by international law. This is a high standard, that is required by the principle of legality.

Before the International Criminal Court, persecution must be connected with either another crime that also falls within the Court's jurisdiction or any of the other acts mentioned in Article 7(1) of the Rome Statute that can also constitute a crime against humanity. This demand was included in the Rome Statute because some States feared that persecution as a crime against humanity would become a very broad category. Nevertheless, this requirement is probably not supported by customary international law. That was at least the observation made in Kupreškić by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In any case, the requirement that persecution must be linked to another act or crime is objective. Thus it does not have any implications for the mens rea.

It has been questioned whether it should be required that persecution targets a civilian population. Indeed, at the International Military Tribunal in Nuremberg and in later cases persons were charged for the persecution of military personnel. However, modern standards may have caught up with this practice. Currently, all contemporary instruments unite the different actions into one category.

The regular mens rea applicable to other acts that fall under crimes against humanity also apply to persecution. In addition, persecution demands that a specific intent directed at a person or group on illegal grounds of discrimination. However, on the basis of the case law of the ad hoc Tribunals it seems that it is necessary that the perpetrator intends to discriminate. It is not sufficient that the perpetrator knows of the discriminatory nature of their conduct.

Persecution can be related to several other international crimes. Persecution and genocide, for example, both demand a specific discriminatory intent. However, the intent requirement for genocide is narrower. Also, acts that add up to other crimes against humanity may be persecution if the discriminatory intent is proven.

Several examples of persecutions may be mentioned. For instance, the acts mentioned in the definition of crimes against humanity in the Rome Statute of the International Criminal Court may constitute persecution if they are commissioned with the required discriminatory intent. Thus, persecution may exist in murder, deportation, imprisonment, extermination, torture, and other inhumane acts. Persecution may also be acts that seriously take away persons' social, economic, civil or political rights. The same goes for overt violence; an example here may be the burning of homes. Hate speech may be another instance of persecution if adding to violent conduct. It may also be that attacks on property constitute persecution.

Enforced disappearance is also a crime against humanity. It is explicitly included in the Rome Statute of the International Criminal Court. Enforced disappearance was especially prominent during the Nazi regime in Germany and in Latin American States led by the military in the 1980s. The definition of enforced disappearance in the Rome Statute of the International Criminal Court includes detention, abduction or arrest of people by, or with acceptance, aid or approval of a State or organisation of a political character. After this there must be a refusal to recognise this taking away of freedom or a refusal to grant information on the location or well-being of the disappeared persons. This must be done with the intent of making sure that the disappeared persons are not protected by the law for a considerable period of time. It is clear that enforced disappearance engages many persons in its execution. The Elements of Crimes of the International Criminal Court therefore recognise that a person may become liable in different ways for having committed persecution. In further recognition that crimes against humanity may be committed by non-State actors, the Rome Statute envisions that political organisations may accept, aid or approve enforced disappearance. Enforced disappearance is primarily about situations in which family members and friends of a disappeared person are unsure whether that person is alive or dead. Family members and friends are thus also victims of this crime. Enforced disappearance can involve additional crimes, including torture and killing.

Another crime against humanity is apartheid. It was already recognised as a crime against humanity in 1968 in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. In the Rome Statute of the International Criminal Court, apartheid is inhumane conduct of a nature similar to the other acts included in Article 7(1), commissioned in the circumstance of an institutionalised racist regime in which one racial group consistently abuses and controls another racial group, intending to continue that regime. The inclusion of apartheid in the Rome Statute of the International Criminal Court is not necessarily a new development in the law. Rather, it is a more explicit recognition of what was already codified. Virtually all conduct covered by the Apartheid Convention of 1973 is also included in the Rome Statute. A few examples include forbidding mixed marriages, torture, murder and enacting laws that forbid a racial group from engaging in social, economic, political and cultural life.

In all international criminal statutes, definitions of crimes against humanity end with a broad residual phrase: 'or other inhumane acts.' This is deemed necessary because one can never be sure of what kind of bestial atrocities persons can commit. A clause like 'or other inhumane acts' therefore ensures that even acts not explicitly mentioned in a Statute may nonetheless be prosecuted. Although this is desirable, the principle of legality must still be respected. Therefore, it is required that the inhumane conduct be of a character that resembles the other forbidden acts. It is also required that the inhumane conduct produces grave suffering or severe bodily injury or to physical or mental health. The perpetrator must do this intentionally. However, it is not demanded that the perpetrator considers their conduct inhumane. Examples of other inhumane acts are grave bodily harm, forced nudity and beatings. The Special Court for Sierra Leone has acknowledged forced marriage as an inhumane act.

War crimes - Chapter 12

 

Preliminary remarks

War crimes are severe breaches of international humanitarian law that lead to individual criminal responsibility. The body of international humanitarian law is also called the laws and customs of war. Although crimes against humanity must be committed as part of a widespread or systematic attack, there is no such demand for war crimes. Thus one act could be a war crime. Rather, war crimes warrant an international reaction because of the context of armed conflict. Because war crimes law is based on international humanitarian law, a short history of this body of law is included here.

Codified and non-codified rules have applied to armed conflict for millennia. Of course, they differed significantly. But it is important that laws for military conflict have existed in many civilisations and ages. Internationally, the codification and improvement of such rules was partly due to Henri Dunant. Dunant's writings on the aftermath of the Battle of Solferino in 1859 resulted in the establishment of the International Committee of the Red Cross four years later. Shortly afterwards, in 1864, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was passed. Currently the body of international humanitarian law includes many treaties. Sometimes a basic division is made between Geneva law and Hague law. Geneva law is primarily concerned with defending civilians and non-active combatants, including prisoners of war, the sick and the shipwrecked. In 1949, the four Geneva Conventions (I to IV) were passed as a reaction to atrocities of the Second World War. Geneva Convention I protects the wounded and sick on the battlefield. Geneva Convention II protects the sick, wounded and shipwrecked at sea. Geneva Convention III protects prisoners of war. And Geneva Convention IV protects civilians. Two Additional Protocols were added to these four Conventions. Additional Protocol I deals with international armed conflict and Additional Protocol II deals with non-international armed conflicts. Additional Protocol I includes aspects of Hague law. This makes the conventional distinction between the two bodies of law less important. Hague law mainly focuses on particular means and methods of warfare. Hague law aims to make avoidable suffering and destruction as little as possible. Importantly, the Hague Regulations of 1907 acknowledged that there are limits to the rights of belligerents to use means by which to injure the enemy. The 1907 Hague Regulations, a large share of the four 1949 Geneva Conventions and certain clauses of the Additional Protocols have become international customary law. This means that they apply even if parties to an armed conflict have not ratified these instruments.

Some essential elements of international humanitarian law are the following. Firstly, persons who are not active combatants or not at all combatants are not to be harmed. This protection applies inter alia to civilians, prisoners of war, combatants hors de combat. Secondly, combatants must differentiate between the civilian population and military targets. They can only attack the latter. This is the principle of distinction. Thirdly, when combatants attack military targets they should prevent or make as small as possible collateral damage done to civilians. They must not carry out attacks that would produce disproportional damage among civilians. This is the principle of proportionality. Fourthly, there are limits on the means and methods of warfare. This is with the aim of minimising avoidable suffering and to uphold respect for humanitarian ideas. Thus, on a more general level, international humanitarian law seeks to regulate armed conflict. It does not seek to prevent the outbreak of armed conflict. There is an essential distinction between jus ad bellum and jus in bello. The former governs the going to war. The latter is concerned with conduct in armed conflict. In the past suggestions have been made that parties going to war for a just cause had the privilege of benefiting from more lenient international humanitarian rules. However, such suggestions have not been recognised by international humanitarian law. In other words, international humanitarian law covers jus in bello but not jus ad bellum.

Of course, it is very difficult to regulate conduct during armed conflict. It has even been argued that armed conflict creates some sort of legal vacuum, in which legal and moral limits do not hold anymore. Naturally, this is not the case. Laws that permit what would otherwise be prohibited (such as killing) do include limitations on such exceptional permissions. However, executing international rules in a situation of armed conflict is often ambitious, to say the least. In international humanitarian law and war crimes law there is a fundamental unease between military and humanitarian interests. These must be balanced in this area of international law. In the context of war crimes it must be taken into account that situations of armed conflict tend to be chaotic. Mistakes in military conduct do not automatically constitute war crimes. International humanitarian law has gradually been paying more attention to humanitarian interests at the expense of military interests. Among other things, this means that more people are now protected in more contexts, for instance in non-international armed conflicts. There are extra-legal factors that have contributed to an increased emphasis on humanitarian considerations. These include democratisation, globalisation and the rise of mass media. Also, technological progression has led to arguments that attacks must now be more precise and be better at avoiding non-combatant suffering. There is limited evidence to support the idea that the development of the body of international criminal law is stimulating military leaders to become more compliant with international law. However, asymmetric armed conflicts between State and non-State actors has sometimes led States parties to such armed conflicts to limit the validity of international humanitarian law.

A part of international humanitarian law is criminalised to constitute the body of war crimes law. It must therefore be asked which parts of international humanitarian law are criminalised. Several treaties explicitly make breaches of certain provisions criminal. Examples of such treaties are the four Geneva Conventions of 1949. It can also be argued that customary international humanitarian law is partly criminalised. For instance, the International Military Tribunal at Nuremberg considered that certain provisions of the 1907 Hague Regulations mirrored customary international law. In Tadić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia argued that not all but only certain international humanitarian laws constitute war crimes. This is appropriate, because many rules of international humanitarian law are technical and do not have the gravity to give rise to war crimes. Also in Tadić, the Appeals Chamber established four demands for war crimes falling in the jurisdiction of the International Criminal Tribunal for the former Yugoslavia. Firstly, the act must breach a rule of international humanitarian law. Secondly, this rule must be based on relevant treaty law or customary international law. Thirdly, the breach must be severe in the sense that the breached rule defends significant values. Also, for the victim the violation must entail severe consequences. Fourthly, the breach must lead to individual criminal responsibility. This four-fold test has been used in later cases before the International Criminal Tribunal for the former Yugoslavia. Nevertheless, there have been doubts over the fourth criterion, because it can be argued that all serious breaches of international humanitarian law lead to individual criminal responsibility. Further, it has been argued that the requirement of seriousness or severity is effectively redundant. In spite of this argument, the idea that war crimes must be severe breaches of international humanitarian law was used in the drafting of the war crimes law of the Rome Statute of the International Criminal Court. Indeed, for the interpretation of war crimes law it is often required to look at the significant rules of international humanitarian law. Therefore Article 8(2)(a) of the Rome Statute of the International Criminal Court includes a reference to the Geneva Conventions of 1949. War crimes law and international humanitarian law also have the same goals. However, their domains and effects are a bit different. War crimes focus on the individual person, whereas international humanitarian law speaks to States and additional parties to armed conflicts. Breaches of international humanitarian law can result in compensation or additional satisfaction. Breaches of war crimes law, however, can result in individual liability and imprisonment. Because of this fact it is appropriate that war crimes law is interpreted in a strict sense. Not everyone involved in a violation of international humanitarian law is necessarily a war criminal.

The law of war crimes is concerned with the responsibility of persons for severe breaches of international humanitarian law. This has long been dealt with by domestic legal systems. A prominent example hereof is the Lieber Code of the United States of America. The Lieber Code included individual criminal responsibility for breaches of its provisions. The Charter of the International Military Tribunal at Nuremberg also had war crimes within its jurisdiction. It contained a definition of war crimes. The International Military Tribunal also included essential provisions of the 1907 Hague Regulations in its treatment of war crimes. Importantly, the four 1949 Geneva Conventions explicitly state that specific violations give rise to individual criminal responsibility over which States have universal jurisdiction. These regulations are now seen as part of customary international law. The Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda have various references to Geneva law, including open-ended lists with examples of war crimes. The Rome Statute of the International Criminal Court does not contain an open-ended list but is indeed exhaustive. War crimes are treated in Article 8 of the Rome Statute. It also has the longest list of possible war crimes of any international criminal institution. The fact that the list of war crimes of the International Criminal Court is non-exhaustive may be due to fears of some States that their own nationals could come to be prosecuted. In any case, non-exhaustive lists better respect the nullum crimen sine lege principle. The list of war crimes of the International Criminal Court includes fifty acts. The goal of the negotiators was that the list could only consist of crimes supported by customary international law. Nevertheless, not all acts that are potentially war crimes under customary international law were added to the list. Among the internationalised courts and tribunals, the Iraq Special Tribunal and the Special Court for Sierra Leone have made use of the war crimes provisions in the Rome Statute of the International Criminal Court. Next to the list of war crimes in the Rome Statute, additional war crimes could also be identified in treaties and international customary law.

As a matter of convention, international humanitarian law and war crimes law was not used in non-international armed conflicts. It was deemed that States had the right to treat their citizens as they wishes, also in circumstances of non-international armed conflict. This was before the rise of human rights law. If sometimes States engaged in severe internal violence acknowledged that there was belligerency, international humanitarian law could be used. But this was exceptional. The Geneva Conventions of 1949 were therefore groundbreaking. This is because in each Convention, Article 3 – which is also identical in all four Conventions – includes a few very elementary rules that regulate non-international armed conflict. These regulations were developed in Additional Protocol II of 1977. Still, the laws of war in non-international armed conflict are not as developed as those that apply to international armed conflict. For example, common Article 3 and Additional Protocol II said nothing of grave violations of international humanitarian law. By 1990, it was commonly recognised that rules pertaining to non-international armed conflicts formed no part of international criminal law.

After the end of the Cold War, however, this gap in development between the two areas of law became more and more problematic. This was because non-international armed conflicts had become more prevalent, more deadly and lasted longer. It was also because States were becoming more and more dependent on each other, and because the concepts of human rights and human security gained support in the international arena. In this context, violations of international humanitarian law applicable in non-international armed conflicts became criminalised in 1994. This happened in 1994 when the United Nations Security Council included war crimes in the jurisdiction of the International Criminal Tribunal for Rwanda. The armed conflict in Rwanda was non-international. The war crimes included common Article 3 of the Geneva Conventions and essential provisions of Additional Protocol II.

Another important decision in the development of criminalised international humanitarian law applicable in non-international armed conflict came with the Tadić decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. This decision took into account many different sources of law. The decision argued that the traditionally strict separation of in international law between international armed conflict and non-international armed conflict was not as stark anymore. It concluded that the generic basis of the laws regulating international armed conflict had slowly also come to regulate non-international armed conflict. This conclusion was quickly accepted by the international community. Therefore the observation was also included in the Rome Statute of the International Criminal Court. This meant that common Article 3 came to form a basis for individual criminal responsibility for war crimes in the Rome Statute. More or less half of the clauses governing international armed conflict also become applicable to non-international armed conflict in the Rome Statute. Some provisions are still not applicable to non-international armed conflict. This is because during the negotiations on the Rome Statute of the International Criminal Court it was decided that these acts might not be reflected in customary international law. However, many acts not included have indeed been part of customary international law for a long time. Examples include starvation as a means of warfare or employing chemical weapons. It is still not the case that the two bodies of law have become one and the same. Indeed, some rules governing international armed conflict would have no use in a non-international context. Rules governing the occupation of territory are an example here.

Nevertheless, the law continues to develop. The fact that the bodies of international humanitarian law and war crimes law are split between international armed conflicts and non-international armed conflicts makes this area of law more complex. This is because in any war crimes prosecution it must be determined whether the armed conflict is international or non-international. It would be easier to work with one list of crimes applicable in armed conflict generally, and a small list of crimes only relevant to international armed conflict.

General issues

The most important aspect of war crimes that distinguishes them from other international crimes is that they are linked to armed conflict. War crimes merit international attention and prosecutions because they are committed in unsafe and unstable circumstances of armed conflict. In the past, international humanitarian law could only be used if there was a state of war had been declared. However, currently international humanitarian law and war crimes law do not require this. They rather consider whether or not there exists armed conflict in the objective sense. In the case of a non-international setting there are stricter requirements for the existence of armed conflict than in an international setting. These are discussed below. The idea of armed conflict need not involve the use of force. It can also be applied, for example, when armed forces cross an international border without authorisation, or invade another State without meeting resistance. The circumstance of armed conflict only ceases with the general ending of military activities. The International Criminal Tribunal for the former Yugoslavia has stated that the circumstance of armed conflict lasts until a broad peace accord or peaceful settlement is accomplished. Another option is that the armed conflict is decisively won by one or more of the parties without any form of settlement. When territories are occupied there is also considered to be a state of armed conflict.

It is essential to differentiate between international armed conflicts and non-international armed conflicts. It is typical that international armed conflicts involve the use of force by the military forces of more than one State. However, there are a few ambiguous situations.

One such doubtful circumstance is where wars of national liberation are fought. Additional Protocol I states that armed conflicts in which peoples are attacking foreign occupation, colonial control and racial regimes are international. This rule is relevant to any trial that uses the serious violations regime of Additional Protocol I. However, it is not clear whether this broadening of the idea of international armed conflict can also be used more generally in war crimes law. If not, then there would unfortunately be two different definitions of international armed conflict applicable in international law – that of the Additional Protocol I and that of, for instance, the International Criminal Court. If yes, Additional Protocol I may unfortunately be used in armed conflicts without the parties' ratification of Additional Protocol I. Thus both of these situations are undesirable. It appears that this question could be answered by looking at the customary international law status of Additional Protocol I. However, there is not much State practice on this.

Another interesting circumstance is where there is a United Nations intervention force. In the first place it should be asked whether international humanitarian law applies to United Nations forces at all. This is because the United Nations is an international organisation and thus not necessarily party to treaties of international humanitarian law. However, it has been acknowledged, including by the United Nations itself, that the United Nations forces are subject to international humanitarian law. United Nations forces have indeed committed breaches of international humanitarian law and war crimes. It is still not clear whether the intervention in a non-international armed conflict by United Nations forces renders that armed conflict international. On the one hand their role is not to become a hostile party to the conflict, but on the other hand United Nations forces may indeed become involved in the use of force.

A last example of an armed conflict that is not clearly and completely either non-international or international is a proxy war. This is where an apparently non-international armed conflict might be argued to be international because local parties to the armed conflict are fighting for another State. This situation was considered in the Tadić case. In the Nicaragua case before the International Court of Justice the criterion had been developed that the foreign State must effectively control their fighting proxy. The Appeals Chamber in Tadić removed the effective control criterion for the more lenient overall control criterion.

In non-international situations, non-international armed conflict must be separated from riots and disturbances. In the Rome Statute of the International Criminal Court this is included by Article 8(2)(f). It may be difficult to do this. But it is important, because riots and disturbances are not covered by war crimes law or international humanitarian law. The reason for this is that they are not sufficiently serious. What makes it more difficult to separate non-international armed conflict from riots and disturbances is that different authorities keep somewhat different standards in this regard. Additional Protocol II has a very high threshold, but Common Article 3 of the 1949 Geneva Conventions says nothing on this question. It has been suggested that the law on war crimes uses only one threshold for all offences in non-international armed conflict. This suggestion uses four arguments.

Firstly, the notion of armed conflict implies a particular intensity of violence and quality of organisation of the parties. These two criteria have been taken from the Tadić Appeal Judgement and are now broadly recognised.

Secondly, Additional Protocol II and Article 8(2)(d) and (f) of the Rome Statute of the International Criminal Court state that circumstances of internal turmoil and riots do not amount to armed conflict. This is very similar to the demands of organisation and severity.

Thirdly, the other limitations in Additional Protocol II have not become part of war crimes law generally. An example is the demand of Additional Protocol II that there must be at least one State party to a conflict. The fact that these and other provisions have not become more accepted has no influence on the interpretation of the term of armed conflict.

Fourthly, the standard used by the Rome Statute of the International Criminal Court can be explained consistently with the case law of the ad hoc Tribunals. In fact, cases of the ad hoc Tribunals and the International Criminal Court have cited each other. In spite of the phrasing of protracted armed conflict in Article 8(2)(f) there are no real differences between the law of the International Criminal Court and the law of the ad hoc Tribunals on the separation between non-international armed conflict and riots and disturbances.

For a violation of international humanitarian law to become a war crime there must be a link between the conduct of the perpetrator and the armed conflict. The Elements of Crimes of the International Criminal Court demand that the act be done in the circumstance of and linked to an armed conflict. The circumstance is of a broad temporal and geographical nature. In other words, it must be shown that the conduct happened at the time of an armed conflict on a territory with an armed conflict. This is not a very stringent requirement. There must also be a specific link between the act and the armed conflict. This was already required by the International Criminal Tribunal for the former Yugoslavia. It is not the case that all crimes committed on a territory with an armed conflict automatically add up to war crimes. What is required, however, was explained in the Kunarac Appeal Judgement before the International Criminal Tribunal for the former Yugoslavia. Here it was stated that the armed conflict must have had a significant influence on the capacity of the perpetrator to commission a crime, the perpetrator's choice to commission the crime, and the way in which or the aim for which the crime was commissioned. Thus, if the perpetrator acted in support or on the pretext of the armed conflict, this would be enough to establish the link to the armed conflict.

War crimes law applies to more persons than (the leaders of) armed forces. Civilians can also commission war crimes if the requirement of their link with the armed conflict is satisfied. It is another question, however, whether or not the perpetrator must be aware of the armed conflict. In early cases before the ad hoc Tribunals knowledge of the armed conflict was not required. From Kordić onwards, however, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has demanded that the perpetrator must have knowledge of the armed conflict. This is also required by the Elements of Crimes of the International Criminal Court. It is not necessary that the perpetrator have legal knowledge of the armed conflict; knowledge of the facts suffices. Neither is it required that the perpetrator know whether the conflict is international or non-international. The Elements of Crimes do demand that the crime is objectively linked with the armed conflict. However, the question of awareness of the conflict by the perpetrator seems mostly a theoretical debate. This is because the requirement of a link between the perpetrator and the armed conflict implies knowledge anyway.

Many war crimes provisions have particular criteria pertaining to the victims or object of the war crime. For serious violations of the Geneva Convention it is required that the crime influence protected people or objects. Protected people are prisoners of war, combatants who are sick, shipwrecked or wounded and therefore no longer taking part in hostilities, and civilians. Some war crimes can only be committed against a specific victim or object, for example undefended towns or civilian objects. It is important here that international humanitarian law was developed originally to regulate armed conflict between two or more hostile States. This is because many war crimes laws demand that the victim be in the control or in the hands of a hostile party. Significantly, Geneva Convention IV of 1949 protects persons who are in the hands of a party to the armed conflict of which they are not nationals. However, after the end of the Cold War conflicts have become much more complex. And civilians may be forcibly captured by persons with which they share nationality. The Appeals Chamber in Tadić has therefore determined that the most important requirement is not nationality but allegiance. Ethnicity may be a basis of allegiance.

The Rome Statute of the International Criminal Court has no jurisdictional threshold for war crimes as it does for crimes against humanity. Article 8(1) of the Rome Statute does state that the International Criminal Court has jurisdiction over war crimes particularly when the war crime has been commissioned as a component of a plan or policy or as component of a massive commission of war crimes. However, the fact that the International Criminal Court has jurisdiction particularly when this is the case indicates that this is a recommendation rather than a jurisdictional requirement. Article 8(1) is thus not the war crimes equivalent of Article 7(1).

Concrete war crimes

This section examines the concrete acts that constitute war crimes. The Statute of the International Criminal Tribunal for the former Yugoslavia gives the Tribunal jurisdiction over serious violations of the 1949 Geneva Conventions and additional breaches of international humanitarian law on the basis of other sources of customary international law. According to its Statute, the International Criminal Tribunal for Rwanda has jurisdiction over serious breaches of common Article 3 and Additional Protocol I. The Rome Statute of the International Criminal Court also explains its jurisdiction over war crimes through sources. It has four lists: serious breaches of the 1949 Geneva Conventions; additional severe violations of international humanitarian law pertaining to international armed conflict; severe breaches of common Article 3; and, lastly, additional severe violations of international humanitarian law in non-international armed conflict. The two provisions on additional severe violations build on a multitude of sources recognised as customary international law, such as certain clauses from Hague law, Geneva law and additional sources. The explicit references to the above treaties and other sources of law were included to adhere to and completely include customary international law on war crimes. In some places this has resulted in considerable overlap. It has been suggested that the list does not have a convincing organisation and is not easily understandable for military leaders. This section firstly examines war crimes law relating to the protection of non-combatants and the principles of distinction and proportionality. Thereafter, war crimes law on property is presented. Then, Hague law on the means and methods of warfare is examined. Lastly there is a discussion on two important war crimes laws that do not clearly fit into any of the above categories.

Essential to war crimes law is a body of rules that forbid violence against and maltreatment of non-combatants. Non-combatants can be civilians, wounded, shipwrecked or sick ex-combatants and prisoners of war. The rationale for their protection is that non-combatants must be dealt with humanely. This part of war crimes law is often and intentionally breached. The largest part of war crimes prosecutions therefore involve crimes against non-combatants. War crimes against non-combatants include murder or willful killings of protected people. Killing combatants is permitted in otherwise legal conduct. War crimes law on international armed conflict pertains to murder. War crimes law on non-international armed conflict pertains to willful killing. But essentially they mean the same. Also included in this body of law are mutilation, biological, scientific or medical experiments, torture and inhuman treatment. Torture in war crimes law is slightly different from torture in crimes against humanity law. In the former case, torture must be committed on discriminatory grounds or with the purpose of acquiring a confession or information or punishing, coercing or intimidating. This is not the case with torture under crimes against humanity law. The different kinds of experiments mentioned may not be justifiable medically nor be in the interest of the person on which the experiments are performed. The experiments must indeed threaten the person's bodily or mental health or integrity. It is a war crime when a person willfully produces severe suffering or severe injury to body or health. This is also the case when a person commissions outrages on personal dignity, especially humiliating and relegating treatment. This is based on common Article 3 and the Additional Protocols and therefore applies in both international and non-international armed conflicts. The act must have a particular objective severity.

A very significant advancement in this body of war crimes law is the acknowledgement that multiple kinds of sexual violence add up to war crimes. For the largest part of its history, international law dealt inadequately with protecting women from sexual violence. Particularly in armed conflicts sexual violence tends to be rife. In international humanitarian law rape has been a crime for centuries. However, this has seldom led to international prosecutions of rape. During the trial before the International Military Tribunal there was more than enough evidence that rape had occurred as a war crime, but there were no convictions for this. There were, however, some convictions for rape before the International Military Tribunal for the Far East. The infamous Rape of Nanking was also prosecuted here, but the phenomenon of comfort women as sexual slavery was excluded. It is significant in this regard that international humanitarian law was primarily drafted by men, who paid insufficient attention to rape. The Statute of the International Criminal Tribunal for the former Yugoslavia included rape as a crime against humanity, but not as a war crime. Rape, together with enforced prostitution and additional kinds of sexual violence, was included in the Statute of the International Criminal Tribunal for Rwanda. Unfortunately, these were covered as outrages on personal dignity. Rape was also included as an outrage on personal dignity in Additional Protocol II. Thus the international legal perspective on rape was still patriarchal; it saw rape mainly as undermining family honour. This characterisation of rape was fortunately not present in the Rome Statute of the International Criminal Court. The Rome Statute also includes more sexual crimes as war crimes: rape, enforced prostitution, sexual slavery, forced pregnancy, enforced sterilisation and additional sexual violence. To improve the traditional insufficient attention for sexual crimes as war crimes in international law there has been much pressure on the ad hoc Tribunals and the International Criminal Court to prosecute these crimes.

Many provisions in war crimes law thus forbid violence against and maltreatment of specified persons. However, war crimes law includes other personal rights as well. These include rights to freedom and mobility. It is a severe violation of international law to illegally deport, transport or confine civilians. This is permitted under certain circumstances, specified in international humanitarian law. In both international and non-international armed conflicts it is a war crime to take hostages. It is also a severe violation of Additional Protocol I to unjustifiably postpone the repatriation of civilians and prisoners of war. However, this is not covered by the Rome Statute of the International Criminal Court. There are also certain legal rights, such as the need to have a regular trial on which to base a punishment. Forced labour and slavery are war crimes in the jurisprudence of the ad hoc Tribunals, but not according to the Rome Statute of the International Criminal Court.

A cardinal principle in the law concerning military activities is the principle of distinction. The principle of distinction demands that belligerents differentiate between the population and objects on the one hand and military targets on the other, and to aim only for military targets. Different instruments of international humanitarian law help to make the distinction between civilians, civilian populations and civilian objects on the one hand and military objectives on the other hand. Where there exists doubt as to whether a person is a civilian or combatant, that person must be deemed a civilian. If a population is predominantly civilian it is characterised as civilian, even if there are non-civilians. Objects that are not military targets are civilian objects. Military targets are combatants, irrespective of whether they are on duty or not. Military targets are also objects that contribute to military conduct and whose annihilation, nullification or capture would provide a certain military benefit. The additional provisions concerning forbidden targets are examples of the same principle. They include attacks on undefended towns or villages, intentionally attacking buildings with educational, religious, artistic, scientific or charity-related purposes, and attacking objects and persons with the Geneva Conventions emblem. Thus the principle of distinction applies both in Geneva law and in Hague law. The principle of distinction is also present in the Rome Statute of the International Criminal Court. An example is the prohibition on attacking staff, structures and vehicles engaged in humanitarian assistance or peacekeeping missions. The Rome Statute also forbids starving civilians as a method of warfare.

Another very important principle of customary international humanitarian law is the principle of proportionality. Even when attacks happen on military targets, the foreseen unintended civilian harm may not be disproportional to the foreseen military benefit. In this principle the unease between humanitarian interests and military interests is very evident. The different provisions based on the principle of distinction are clear and easy to interpret. However, this is not the case with the principle of proportionality. Although arms have become more precise, significant civilian harm is still often done. Thus there are many difficulties resulting from this principle. The principle of proportionality is contained in the Rome Statute of the International Criminal Court in Article 8(2)(b)(iv). This Article has a test of three elements: the foreseen civilian harm; the foreseen military benefit; the question whether the first element is disproportionate with respect to the second element. In contrast to the jurisprudence of the ad hoc Tribunals and the Geneva Conventions, the Rome Statute does not demand that there is any result. It only requires that the attack be launched. The Rome Statute covers damage to the environment as part of the foreseen civilian harm. Additional Protocol I does this in slightly more lax terms. The inclusion of environmental aspects in the proportionality principle builds on other authorities. However, environmental considerations are only made if the environmental damage is not only excessive to the military benefits but also widespread and occurs on the long run.

Among military targets are combatants. Exceptions are combatants that have surrendered or are wounded or sick or are not involved in hostilities anymore. Military targets can also be military objects, as described above. The Rome Statute also demands that an evaluation is made of the exact and immediate general military benefits that are foreseen. The military benefit need not be geographically or temporally linked to the object that is attacked.

In practice, it is very difficult to apply the proportionality principle. There are at least three reasons for this. One is that it hard to estimate civilian damage on the basis of likelihoods and variables, especially when the context is urgent. A second reason is that the same goes for military benefits. The third reason is that these two estimates are not likely to share any unit of measurement and can thus hardly be compared. These observations have been recognised, and therefore those who take the decisions are permitted a reasonable margin of error. During the drafting of the Rome Statute of the International Criminal Court there were fears that the Court would with hindsight not be able to consider the urgent circumstance of armed conflict but instead apply very strict standards. In order to act on these fears the International Criminal Court can only find that the principle of proportionality has been violated when the civilian harm is evidently excessive. This requirement of evident excess is not supported by the case law of the ad hoc Tribunals. Some have suggested that the question of proportionality must be seen from the perspective of a rational military leader. However, such suggestions do not help comparing military benefits to civilian harm. It appears that important numbers of civilians may be killed in pursuit of military targets before the principle of proportionality is violated. It is important to take into account the acts of the parties with regard to compliance to the principle.

The mens rea of the perpetrator at the time when the attack was launched is also important. The Elements of Crimes of the International Criminal Court state that the information accessible to the perpetrator is decisive. Evidently, the perpetrator must know the scope of the foreseen military benefits and foreseen civilian harm. However, it is not very clear whether the comparison between the two must be made by the perpetrator or by the International Criminal Court. The Elements of Crimes in footnote 37 clarify that this must be done by the perpetrator in person. However, there are serious concerns about whether this footnote is consistent with the general principles of international law and the Rome Statute of the International Criminal Court.

War crimes can also be committed against property, including under the Rome Statute of the International Criminal Court. In this regard, property must be seized, appropriated, destroyed or pillaged. These laws are based on different sources, but tend to overlap. War crimes against property are also criminalised under Hague law. The Rome Statute and Hague law contain an exception, namely that property may be destroyed if that is militarily necessary. The Geneva Conventions also cover war crimes against property, with the goal of respecting the rights of protected people. Hague law protects property with the goal of specifying what military conduct should be. Thus, Hague law examines war crimes against property in relation to military needs, but Geneva law in relation to excess. Both the Hague and Geneva provisions are covered by the Rome Statute of the International Criminal Court. Pillage is also a war crime. Pillage can be distinguished from seizure or appropriation in that the former is done for private benefits and the latter for military benefits. Pillage is like the municipal offense of theft. Therefore pillage, in contrast to seizure or appropriation, has no requirement in terms of military needs or excess. The case law of the ad hoc Tribunals suggests that pillage must be severe to be prosecuted as a war crime. Regarding war crimes against property in general, there is a considerable overlap of provisions in the Rome Statute of the International Criminal Court. For example, seizure or appropriation can be prosecuted under Article 8(2)(b)(xiii) or Article 8(2)(a)(iv). Destruction could also be tried under Article 8(2)(b)(viii), but also under Article 8(2)(a)(iv), Article 8(2)(b)(iv) or Article 8(2)(b)(ii).

The above has mainly focused on defending non-combatants during armed conflict. However, another significant portion of war crimes law concerns the means and methods of warfare. This part of war crimes law also protects combatants. There are two fundamental reasons for the prohibition on certain weapons. One reason is to protect combatants from unneeded suffering. Another reason is to protect civilians from the use of weapons that are by their very nature indiscriminate – in other words, in their use civilians cannot be distinguished from combatants. The Rome Statute of the International Criminal Court only contains prohibitions on weapons that are applicable in international armed conflicts. However, there is enough support for acknowledging that the use of certain weapons in non-international armed conflicts can constitute a war crime as well. Weapons that have become forbidden from the battlefield are inter alia dum dum bullets, asphyxiating or toxic gases and similar liquids, instruments or materials, and venom and venomous weapons. These prohibitions are laid down in the Rome Statute of the International Criminal Court, the Geneva Conventions and/or the Hague Regulations.

Customary international law also undisputedly prohibits the use of chemical, biological and venomous arms. However, these are not forbidden by the Rome Statute of the International Criminal Court. During negotiations of the Rome Statute certain delegations pressed for prohibitions on the use of nuclear weapons. However, the International Court of Justice had found that nuclear weapons were not forbidden by customary international law per se. With the exclusion of nuclear weapons many delegations found it would be unfair to prohibit chemical, biological and venomous arms. These were thus not included either. A few chemical weapons, however, are prohibited by the Rome Statute. The use of other chemical, biological and venomous weapons could constitute a war crime if they violate certain provisions in the Rome Statute. There have also been mentioned other weapons that could come to be forbidden completely. One kind of such weapons are anti-personnel mines, which are inherently indiscriminate and thus also cause many civilian deaths and harm. Anti-personnel mines are prohibited by one treaty, but this prohibition is also opposed by many States. Thus it cannot (yet) be concluded that anti-personnel mines are prohibited by customary international law. Similarly, it is not clear that customary international law prohibits the use of depleted uranium projectiles or cluster bombs, let alone that their use is criminalised.

The above two paragraphs concern the means of warfare. War crimes law also covers particular methods of warfare. A large share of such laws originate in conventions of chivalry. These rules involve ideas of humanity and honour, and the notion that intentional breaches of international humanitarian law should be avoided. Killing or wounding a soldier who is hors de combat, for instance after having surrendered, is a war crime. This rule in the Rome Statute of the International Criminal Court is based on provisions in the Hague Regulations and Additional Protocol I. Thus it is ensured that persons are still protected between their becoming hors de combat and their becoming prisoners of war. It is also a war crime to state that no quarter shall be given. This means that no prisoners of war shall be taken or that there will be no survivors. Another war crime with respect to methods of warfare is wounding or killing a combatant treacherously. The notion of treachery refers to perfidy, which entails stimulating an adversary to believe that they will enjoy protection from international humanitarian law, with the aim to betray that belief. Perfidy is thus a feigned promise to offer protection. Perfidy violates international humanitarian law and violates a code of honour. Examples of perfidy are faking efforts to surrender, faking disablement by sickness or wounds, and faking protected status by means of employing certain emblems. Another means of perfidy is improperly using a truce flag, military insignia flag, adversary uniform, United Nations uniform or distinctive Geneva Conventions emblems, leading to death or severe private injury. It is also forbidden to attack or impede persons working under the sign of the International Committee of the Red Cross. It is not always clear whether violations of such rules should give rise to criminal proceedings. The Elements of Crimes of the International Criminal Court suggest that this need not be the case when the rules are unclear. Lastly, it is also a war crime to employ human shields. This entails using protected persons such as civilians to make particular areas, points or military personnel insusceptible to attacks. This is not explicitly included as a crime in the Geneva Conventions. But it was included in the war crimes provisions of the Rome Statute of the International Criminal Court due to the gravity of using human shields. Human shields can frustrate the principle of proportionality, which of course still needs to be respected. The crimes covered in this paragraph all apply in international armed conflicts. In non-international armed conflicts only treacherous killing or wounding and stating that no quarter will be given are war crimes.

There are two other important war crimes, both in the Rome Statute of the International Criminal Court, that are not as concerned with the protection of adversaries per se or other traditionally important ideas of international humanitarian law. One of these is when an occupying power transports segments of its own civilian population into a territory it is occupying. This war crime does thus not cover transfers of parts of the civilian population of an adversary party. This provision was included in the Rome Statute of the International Criminal Court to emphasise respect for the non-permanent character of occupation. The inclusion of this clause in the Rome Statute was severely opposed by Israel, and advocated by certain Arab States. The legal basis of the clause, however, was uncontroversial.

Another important war crime is the use of child soldiers. This entails conscripting or enlisting persons of age fourteen or under into military groups or forces or employing them to engage actively in combat. This war crime is relatively new in war crimes law. Many light and cheap weapons are now increasingly available, which has stimulated the use of child soldiers. Indeed, eighty per cent of armed conflicts that have recently stopped or are ongoing have involved child soldiers. The most important goal of criminalising the use of child soldiers is to defend all children. The inclusion of this provision in the Rome Statute of the International Criminal Court was rather controversial, because no other international criminal institution had explicitly recognised it. Nonetheless, the Special Court for Sierra Leone later held that with the inclusion of a clause on child soldiers the Rome Statute of the International Criminal Court had only codified what was already customary international law. The notion of conscripting means to forcibly recruit. Enlisting means refers to voluntary recruitment (if it is at all possible that children under the age of fifteen, often living in dire conditions, can be said to voluntarily join an army or armed group). At the International Criminal Court there is a special mens rea for this crime. This is that the perpetrator was aware or should have been aware that the persons in question were fourteen years or younger. Some have argued that the criterion 'should have been aware' is out of place in criminal law. But such concerns seem inappropriate.

Aggression - Chapter 13

 

Preliminary remarks

It is entirely uncontroversial to state that aggression is a crime under customary international criminal law. However, currently there does not exist any globally accepted definition of the crime of aggression. And there is no international criminal institution that can prosecute persons for having committed aggression. Aggression is officially within the jurisdiction of the International Criminal Court. However, as of January 2010, the International Criminal Court was not able to use its jurisdiction. This situation could be resolved if at the Review Conference later in 2010 there would be an agreement on the definition of the crime and the circumstances in which the International Criminal Court could use its jurisdiction over aggression.

The international crime of aggression is inherently different from the other crimes described here. This is because aggression is always linked with illegal conduct by a State. Aggression implies that a leader or policy-maker of a State is involved in particular aggressive conduct by a State.

With the exception of a few incidents, the first international proceedings concerning the crime of aggression were before the International Military Tribunal at Nuremberg. What is now considered the crime of aggression was then called crimes against peace. Before the Second World War there had also been trials to prosecute similar crimes. For example, the Treaty of Versailles of 1919 stated that Kaiser Wilhelm must be tried, for what may be considered a crime similar to that of aggression. During the negotiations on the Charter of the International Military Tribunal there was no evident consensus on the international legal existence of the crime of aggression. Crimes against peace were included, however. They were defined as preparing, planning, beginning or waging a war of aggression, or a war that breaches international instruments. It was also a crime against peace to engage in a common plan or conspiracy to achieve any of the foregoing. The provisions on crimes against peace included in the Charter of the International Military Tribunal for the Far East and Control Council Law No. 10 were almost the same. The International Military Tribunal at Nuremberg was presented with the allegation that its Charter had invented new law and that therefore the International Military Tribunal used law ex post facto, and violated the nullum crimen sine lege principle. The International Military Tribunal responded that waging aggressive war had been an international crime since the Kellogg-Briand Pact of 1928. Nevertheless, three Judges did not agree with this finding. And indeed the Kellogg-Briand Pact had not aimed at providing a basis for individual criminal responsibility. In spite of these observations, it is now widely recognised that aggression is a crime under customary international criminal law.

After the Judgement of the International Military Tribunal, the General Assembly of the newly established United Nations endorsed the international legal principles contained in the Charter and Judgement of the International Military Tribunal. Subsequently, the International Law Commission was asked to provide a detailed definition of aggression, but it did not achieve a consensus. Further negotiations were hampered by the circumstance of the Cold War. However, in 1974 the United Nations General Assembly passed Resolution 3314, in which aggression was defined. The Resolution states that a war of aggression constitutes a crime against global peace. It also states that acts of aggression lead to international accountability. Thus the distinction between a war of aggression and acts of aggression is that the former but not the latter leads to individual criminal responsibility. In 1996, the Draft Code of Crimes against the Peace and Security of Mankind produced by the International Law Commission also included aggression as a crime. But it did not specify what aggression is. However, the Draft Code was not adopted, because delegations were busy with negotiating the Rome Statute of the International Criminal Court.

The negotiations on the Rome Statute of the International Criminal Court started with the draft statute of the International Criminal Court made by the International Law Commission in 1994. This draft statute did not define aggression. But it did state that no complaint related to or concerning aggression can be brought to the International Criminal Court until the United Nations Security Council has decided that a State has indeed committed the crime of aggression. There was controversy over the questions whether aggression should be included at all, how it should be defined and what, if any, the role of the United Nations Security Council should be. There were various proposals as to how the crime of aggression should be defined. One proposal was to base the definition on United Nations General Assembly Resolution 3314. But this Resolution only contained an incomplete list of examples and was not meant to indicate individual criminal responsibility. Another proposal was to define the crime of aggression as any illegal use of force under the United Nations Charter. Yet another approach argued that merely participation in a war of aggression was based on customary international law. At the Rome Conference, no agreement was reached on the definition of the crime of aggression, nor on the role of the United Nations Security Council. It was decided that the Rome Statute of the International Criminal Court was to have a clause providing that the Court could use its jurisdiction over aggression once a definition had been adopted. Thus, as of January 2010, the International Criminal Court was incapable of prosecuting crimes of aggression. Since the conclusion of the Rome Conference work has been done on the crime of aggression to prepare for the Review Conference later in 2010.

It is interesting to compare the crime of aggression to war crimes, crimes against humanity and genocide. Unlike these crimes, aggression is concerned with jus ad bellum. It is therefore inextricably linked with State responsibility. The act of aggression can lead to the commission of other crimes, such as war crimes. Crimes against humanity, war crimes and genocide are most frequently commissioned by members of armed forces of (organisations resembling) a State. But aggression can only be commissioned in the name of a State and as a component of a State plan or measure. Moreover, persons can only become perpetrators of genocide if they are leaders and are engaged in making State policies. As of January 2010, aggression was excluded from the Elements of Crimes of the International Criminal Court.

Actus reus of aggression

The act of the perpetrator is viewed in relation to the collective conduct of aggression by a State. There are three basic requirements. Firstly, the perpetrator has a position of leadership in a State. Secondly, the perpetrator has participated in, thirdly, the collective conduct of the State.

Aggression is a crime that can only be committed by leaders and high-ranking policy-makers. The Charter of the International Military Tribunal speaks of the waging of war, which might be seen to imply that any person engaged the act of aggression may be individually criminally responsible. Nevertheless, this is not the way in which the International Military Tribunal treated crimes against peace. In the High Command case under the Control Council Law No. 10, for example, the fourteen defendants charged with crimes against peace all possessed high military positions. However, thirteen of the defendants (one had committed suicide) were not convicted for crimes against peace. This was on the ground that they had not engaged in the crimes on a level of policy. Thus, even if persons involved in crimes of aggression have a high military position they still need to have been in a position to make policies for a conviction. However, this requirement of policy-making is not automatically limited to the State. After the International Military Tribunal at Nuremberg several industrialists were charged with crimes of aggression. These industrialists had been closely linked to the State. However, in the IG Farben case the defendants were not convicted for crimes against peace, precisely because they had not planned or led the waging of the war. The draft definition the crime of aggression of the International Criminal Court states that the perpetrator must have the status to effectively dominate or steer the military or political conduct of the State that commissioned the aggression. This definition thus is not completely consistent with earlier cases on crimes against peace in that it excludes other persons in a position to steer policy. The aggression itself must be collective conduct by a State against a second State.

The conduct of the perpetrator must somehow be linked to the collective conduct of the State. In Article 6 of the Charter of the International Military Tribunal, it was stated that the perpetrator could either plan, prepare, begin or wage the war of aggression. The perpetrator could also be convicted for having engaged in a common plan or conspiracy for any of said acts. In the existent case law it can be hard to differentiate preparation from planning. The draft definition of the International Criminal Court excludes conspiracy. Rather, it includes preparing, planning, beginning or carrying out a war of aggression. However, at the International Military Tribunal at Nuremberg conspiracy did not differ much from preparation or planning anyway. It is not a crime to threaten to employ military force. Rather, the collective conduct of the State must have been fulfilled for individual criminal responsibility to arise.

The fundamental collective conduct is committed by a State against a second State. It must be asked what this act is in the context of individual criminal responsibility, and what international law applies to this fundamental collective act. There has not been much State practice after the Second World War regarding the definition of aggression in customary international law. And only a few States have passed domestic laws penalising aggression. It seems therefore that customary international law has not changed much since the Judgements of the International Military Tribunals at Nuremberg and for the Far East, and the Control Council Law No. 10. Only aggressive war can form the basis of individual criminal responsibility for the crime of aggression. However, declared war is now rare, and the notion of war is not present in the 1949 Geneva Conventions nor in the legal provisions of the United Nations Charter. The concept of war does not include all instances of illegal use of force. But it is limited to mass-scale and grave instances. Some of the negotiations on the Rome Statute of the International Criminal Court revolved around possible definitions of war. As of January 2010, the draft definition of aggression of the International Criminal Court stated that aggression was the utilisation of armed force by a State against the political independence, sovereignty or territorial integrity of a second State, or in any other manner contradictory to the United Nations Charter. This wording is similar to Article 2(4) of the United Nations Charter and thus reflects general international law concerning all illegal uses of force by States. Thus, the International Criminal Court will need to determine whether the collective conduct of a State violates international law. This means that the International Criminal Court also must take into account any defences of the use of force that the State in question can use.

Because the (il)legality of the use of force is an essential component of a prosecution of aggression, this paragraph shortly examines a few important rules in international law concerning the use of force by a State. Article 2(4) of the United Nations Charter prohibits the use of force or the threat thereof by a State against the political independence or territorial integrity of a second State. It also prohibits the threat or use of force by a State against a second State that in any additional way contradicts the goals of the United Nations Charter. Article 2(4) mirrors customary international law and is the most important legal rule concerning the use of force. However, it is not easy to interpret, and there are multiple views on what exceptions there are to Article 2(4). Two exceptions are uncontroversial: self-defence and use of force permitted by the United Nations Security Council.

Self-defence as an exception to Article 2(4) is covered by Article 51 of the United Nations Charter. It states that nothing in the Charter can affect the essential right of States that are Members of the United Nations (on their own or collectively) to defend themselves against armed attacks, until the United Nations Security Council has made policies to restore international peace and security. In international law, self-defence is illegal unless it is necessary to employ force and if such force is not excessive with respect to the necessity of averting the attack. It is unclear whether or not self-defence may be used in anticipation of an attack, that is before the attack for which the self-defence is meant occurs. There are both arguments in favour and in opposition of this idea. An argument in favour of anticipatory self-defence is that in some cases it is not realistic to wait until the attack happens. This could be the case specifically with respect to the use of nuclear weapons. The International Court of Justice is ambiguous as to the lawfulness of averting an imminent armed attack. Nevertheless, it is clear that 'self-defence' without an existent security threat is always illegal. It is increasingly also asked whether self-defence can be used against non-State actors – for instance, is it allowed for a threatened State to use armed force against non-State actors in another State?

Another exception to Article 2(4) of the United Nations Charter is where the use of force is authorised by the United Nations Security Council. When the United Nations Security Council acts under Chapter VII of the United Nations Charter, it may permit the use of force. Such use of force can be in the form of coalitions of States or peace-building or peace-enforcement projects. Even here there can be controversies, for example if United Nations Security Council Resolutions are interpreted differently.

A vastly less accepted exception to Article 2(4) is where States use armed force to intervene for humanitarian purposes, without authorisation of the United Nations Security Council or of the State in which the intervention takes place. Prima facie such interventions breach Article 2(4). But some have asked whether interventions such as in Iraq in 1991 and in Kosovo in 1999 by the North Atlantic Treaty Organization can nonetheless be legal. Such arguments use the notion of the responsibility to protect to argue that customary international law permits such interventions. But maybe it is better to hold that such interventions are in fact illegal.

As of January 2010, the draft International Criminal Court definition of aggression is the utilization of military force by a State against the political independence, sovereignty or territorial integrity of a second State, or in any other way contradictory with the United Nations Charter. In this regard the definition includes the conduct listed in United Nations General Assembly Resolution 3314 (XXIX) of 1974. It states that any instances of such conduct, accordingly to Resolution 3314, are acts of aggression. This is in spite of the fact that Resolution 3314 is not concerned with individual criminal responsibility. Also it is not clear that Resolution 3314 mirrors customary international law on aggression. Neither does the draft definition of aggression take into account the limitations and conditions of the text of Resolution 3314. Resolution 3314 meant to offer help to the United Nations Security Council with respect to Article 39 of the United Nations Charter. However, it may be the case that the qualification that the list of Resolution 3314 in the draft definition is to be interpreted according to Resolution 3314 implies the need to respect the qualifications of the Resolution. Further, it is noteworthy that the draft definition of aggression does not include any requirements as to the severity or scale of the acts. Although there is a general requirement of severity in Article 17 of the Rome Statute of the International Criminal Court, the Court would have quite some discretion with respect to aggression.

Moreover, the draft definition does not address problematic areas of international law regarding the use of force. But probably it would not have been possible to accomplish anything otherwise. Nevertheless, the draft definition of aggression does have a threshold requirement. It states that the act of aggression must by its nature, severity and scale be an manifest breach of the United Nations Charter. The inclusion of a scale requirement seems to preclude small-scale acts of aggression. The term 'manifest' plausibly seeks to exclude acts of aggression that arguably are not clearly in violation of the United Nations Charter. This violation needs to be manifest to the Court, not necessarily to the State concerned. This creates legal uncertainty. It has been proposed that a necessary component of the crime of aggression is the aggressive goal or intent of the leader(ship) and that the perpetrator should have knowledge of this goal or intent. Using this material or mental element would be helpful in making sure that humanitarian interventions are not categorised as aggression. However, as of January 2010, no such aggressive goal or intent had been placed in the draft definition of aggression of the International Criminal Court.

Mens rea of aggression

The case law on the crime of aggression following the Second World War is broadly consistent in its mens rea requirement. The perpetrator must have had the intent to engage in the aggressive conduct. If the perpetrator was involved in the aggressive act while being aware of the collective intent to begin and wage a war of aggression, the mens rea demand is satisfied. However, meeting the actus reus requirement alone is insufficient; the perpetrator must carry out the act knowing of the intent or the plans to wage a war of aggression. However, the International Criminal Court will use a different mens rea standard, consisting of two elements. Firstly, the perpetrator must know that the use of military force by a State contradicts with the United Nations Charter. Secondly, the perpetrator must be aware of the manifest breach of the United Nations Charter. However, it is not necessary that the perpetrator has awareness of the illegality of the act.

Trying aggression before the International Criminal Court

If States ratify the Rome Statute of the International Criminal Court they automatically accept the Court's jurisdiction over crimes against humanity, genocide and war crimes. However, the International Criminal Court will only be capable of using its jurisdiction over aggression with regard to States that have approved the amendment defining aggression and its requirements. Thus, if a perpetrator is a national of a State that has not accepted this amendment, the perpetrator cannot be prosecuted by the International Criminal Court. Likewise, the International Criminal Court will not be able to prosecute aggression that has been committed on the territory of a State that has not accepted the amendment.

There are several conditions that have to be met before the International Criminal Court will be able to exercise its jurisdiction over the crime of aggression (apart from the activation of this jurisdiction by the Assembly of States Parties). Importantly, it is presumed that an act has been commissioned by a State. The International Law Commission indeed suggested that the United Nations Security Council must first have determined that a State had committed aggression before proceedings could take place before the International Criminal Court. However, this suggestion was not included in the draft definition of aggression of the International Criminal Court. However, Article 5(2) of the Rome Statute of the International Criminal Court does provide that the Court can only exercise its jurisdiction over aggression consistently with the United Nations Charter. It has been argued that this requirement implicitly endorses the suggestion by the International Law Commission that the United Nations Security Council must first have determined that a State has committed aggression. However, this argument is controversial. This is inter alia because within the United Nations the Security Council does not have an exclusive mandate to deal with international peace and security. The International Court of Justice and the United Nations General Assembly could also do this. Additionally, there exist political and practical reasons for this controversy. For example, requiring a United Nations Security Council determination of aggression would mean that the five Permanent Members of the Security Council could always prevent prosecutions against their nationals for aggression by using their veto powers. The United Nations Security Council has only determined that aggression had been committed in a few instances. However, if there International Criminal Court were not to require a previous United Nations Security Council determination, two problems might arise. One is that the International Criminal Court would then have to decide on very political issues of international law. Another problem might be that the Court could intrude into the responsibilities of the United Nations Security Council. To avoid such problems, other proposals have been made. One is that, in the case that the United Nations Security Council does not determine that aggression has been committed, this could be determined by the United Nations General Assembly or the International Court of Justice. However, there are technical complications behind such proposals. Generally, because of the link between individual criminal responsibility and the act of the State, a large share of the most important leaders of a State would be criminally liable (presuming their involvement in the act). However, after the political decision of the United Nations Security Council the International Criminal Court would still have to consider any legal defences that could be used by the accused. It could be that the United Nations Security Council determines that aggression has been committed in a particular situation, whereas the International Criminal Court could still find that no aggression had been committed.

Still, it can be argued that it can be useful to ensure the support of the international community for prosecutions of aggression before such proceedings are initiated. This is because issues of jus ad bellum are generally more controversial than issues of jus in bello. Recent examples of military interventions with questionable legality include Iraq in 2003, Lebanon in 2006 and Afghanistan in 2001. Jurisdictional problems before the International Criminal Court may be worsened if the charge in question is aggression. More fundamentally, the International Criminal Court's procedures were made for dealing with individual criminal responsibility and not State responsibility. There may be severe evidentiary problems; a State may be unwilling to deliver highly sensitive documents to the International Criminal Court. Disputes that effectively revolve around an inter-State conflict should be avoided before the International Criminal Court.

Transboundary crimes, including torture and terrorism - Chapter 14

 

Preliminary remarks

The most important crimes in international law are genocide, crimes against humanity, war crimes and aggression. But there are also other crimes with much influence over many people and on worldwide economic development. This chapter examines crimes that have been prohibited by international instruments, but over which no international criminal court or tribunal has jurisdiction. Rather than international crimes they are more properly called transboundary or transnational crimes. Like international crimes, transnational crimes violate essential norms of the international community. Government and organisations enforcing the law collaborate in order to avoid and punish transnational crimes. Such agreements target inter alia piracy, crimes of terrorism, drugs trafficking, slavery, enforced disappearances, torture, transboundary planned crimes including trafficking of persons, apartheid, corruption, unlawful trafficking of arms and smuggling migrants. Of these acts, some are international crimes in specific circumstances, or are included in customary international law. Some of these acts were also included in the draft statute of the International Criminal Court produced by the International Law Commission, but ultimately excluded from the final version of the Rome Statute of the International Criminal Court. Due to limits of space only torture and terrorism are treated here.

Transnational crimes are not tried by international but by municipal legal systems. Nevertheless, States use international instruments for cooperation in the enforcement of laws on transboundary crimes. Such instruments instruct States to enact the legislation necessary for prosecution, to include the relevant crimes within the State's jurisdiction and to arrange punishment for these crimes. Here the aut dedere aut judicare principle also applies. There are different jurisdictional arrangements, but there is always a close nexus between the defendant and the prosecuting State. A majority of the agreements provide that States must exercise jurisdiction on the basis of the territoriality and nationality principles. Sometimes the passive personality principle may apply. The agreements can also provide for universal jurisdiction when they demand States to take jurisdiction when not extraditing the accused, irrespectively of where the crime was commissioned. Such agreements are not strong as one body of enforcement. They frequently do not elaborate on the actus reus or mens rea of a particular transnational crime. If particular States lack fair trial standards and additional protections, such circumstances can be abused without international safeguards.

Terrorism

There are multiple legal problems with the crime of terrorism. One (not only legal) problem is that terrorism is a very normative notion; a person who is a terrorist to some may be a liberty fighter to others. In a legal context, terrorism could be described as committing common, although grave, crimes with a specific goal. There are critiques that criminalising terrorism is risky as it may stimulate policies that do not (sufficiently) take into account human rights. It can also be questioned whether criminal law alone is adequate in dealing with terrorism or whether using military force is needed – and justifiable. Prominent examples of situations in which such questions have arisen are the invasions by the United States of America and other States into Afghanistan in 2001 and Iraq in 2003. The legality or otherwise of mass-scale detentions of persons and their treatment that accompanied the invasions has been thoroughly criticised. It is a striking irony that the so-called war on terror was justified on the basis of the terrorist acts of 11 September 2001 but itself involved widespread breaches of international law. The most important way of addressing terrorism is still criminal law. Thus it continues to be difficult to decide legally what a terrorist act is and is not. Acts that are terrorism can only be tried at an international tribunal or court if they constitute crimes against humanity or war crimes. The Special Tribunal for Lebanon possesses jurisdiction over terrorist conduct, but only under domestic rather than international law. There is one definition in customary international law of terrorism, but the view that terrorism is already criminalised by international law is highly controversial.

An early effort at forbidding terrorism came in 1937 with the Convention for the Prevention and Punishment of Terrorism. The Convention stated that terrorism is criminal conduct targeting a State and intended or designed to spread fear among specific individuals, a group of persons or the general population. The Convention never entered into force. The United Nations also undertook to define and forbid terrorism with the establishment of a committee with that mandate. But various difficulties precluded any success.

This apparent lack of success resulted in thematic formulas that did not focus on criminalising a comprehensive notion of terrorism but rather particular areas of terrorist conduct. The Hague and Montreal Conventions, two early ones, address security in civil aviation and other crimes against air transport. The Terrorist Bombing Convention was concluded in 1997. A majority of terrorist acts had been addressed in one or more conventions. Then, efforts were renewed to agree on a comprehensive prohibition of all kinds of terrorism. These efforts were supported by United Nations General Assembly Resolution 49/60, which contained a general, criminalising definition of terrorism. However, there did not come any convention with a similarly general prohibition of terrorism. There are, however, eleven international instruments on terrorism. They aim at successful domestic trials of terrorist conduct and respect the aut dedere aut judicare principle. The three most recent instruments state that the act cannot be a political crime with respect to extradition or mutual legal aid. Thus, persons accused of terrorism cannot avoid extradition by claiming that they are being prosecuted for political crimes.

In addition to global agreements that address terrorism there is a number of such instruments with a regional character. Regional agreements too deal with the methods of multilateral collaboration with the goal of domestic trials of terrorism. One such regional instrument is the European Union's Framework Decision on Combating Terrorism of 2002, passed in furtherance of United Nations Security Council Resolution 1373. This Decision demands that there must be made a list of acts that are terrorist.

The United Nations Security Council has dealt with terrorism as well. It was stimulated to do so particularly after the Lockerbie incident on 21 December 1988, in which all 259 persons on board and eleven on the ground were killed. This was believed to be an act of terrorism sponsored by a State. The United Nations Security Council subsequently demanded that Libya deliver the accused and penalised it when it did not obey. In a similar case, the United Nations Security Council required Sudan to extradite people alleged to have tried to murder the President of Egypt. Also, in 1999 and 2000 the United Nations Security Council obliged the Taliban to deliver Osama Bin Laden to States which had indicted him. A day after the terrorist attacks of 11 September 2001, the United Nations Security Council condemned the attacks and terrorism generally as a danger to international peace and security. In a later Resolution (1373) the same year, the United Nations Security Council prescribed measures for all States with respect to the quelling of terrorism and specifically the funding of terrorism. Resolution 1373 criminalises the funding, planning, preparation for, perpetration or assistance of terrorist acts. Nevertheless, the Resolution does not have any definition of terrorism. It has been posed that Resolution 1373 goes beyond the mandate accorded to it in the United Nations Charter and into the realm exclusive to inter-State collaboration. Nevertheless, the Resolution has effectively been accepted and is an important component of international collaboration against terrorism.

There is no globally accepted definition of terrorism for the aim of forbidding terrorism in a binding way. Of the eleven worldwide instruments dealing with terrorism only the Terrorist Financing Convention defines the term, but only for a supplementary purpose. Some instruments do not even include the word terrorism in their texts. Nevertheless, there somehow exist definitions of terrorism. All regional agreements on terrorism have them. United Nations Security Council Resolution 1566 describes (but is said not to define) terrorism. Relating to acts included in the worldwide instruments on terrorism, Resolution 1566 states that they are commissioned with the goal of antagonising a state of terror, frighten a population or force a government or international organisation to (not) do something. Two fundamental issues underlie the hardships of the international community in their efforts to define terrorism. Firstly, can acts that are in some cases condemned as terrorism be justified in other cases? Secondly, should terrorist acts by States be included in a definition of terrorism? It can also be asked if trying to define terrorism is worth the effort. This is because all underlying conduct of terrorism is already criminalised. Nevertheless, a definition would be useful for a comprehensive international agreement on terrorism and would be essential for global collaboration, specifically for extradition. It is not plausible that a definition could be agreed on for a terrorism convention that would be useful in all contexts.

It is important to respect human rights when creating definitions of terrorism. This is because of a few reasons. Firstly, crimes of terrorism are likely to lead to more severe punishments. Secondly, domestic systems may have more intrusive powers with respect to investigations. Thirdly, the exception in extradition agreements of political crimes may not be applied. Fourthly, if terrorist acts are defined very inclusively, there is a risk that perpetrators of 'ordinary' crimes will be convicted for terrorism and suffer too high punishment. Fifthly, unclear definitions of terrorism make it possible that authorities will abuse them. To circumvent this, the United Nations has put in place the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. This Special Rapporteur has argued that definitions of terrorism should be constrained to cases in which the act causes death, grave bodily injury or involves the taking of hostages. The actus reus and mens rea of terrorism as a transnational crime can be dealt with by referring to descriptions and definitions of terrorism in the various international agreements. However, the actus reus and mens rea elements of terrorism are not covered in detail by the current global and regional instruments. In a general fashion, however, two statements may be made. There must be a fundamental act, which most often is a crime per se. also, the goal must be to force a State or international organisation to (not) do something, and/or the goal must be to frighten a population. Sometimes it is also demanded that there be a political or ideological motive. With respect to international terrorism, it can be required that the act be of a transnational nature. However, there are contradictory practices with regard to all issues of the definition of terrorism.

Of the eleven universal terrorism instruments, only the Terrorist Financing Convention does not demand that the actus reus be a crime per se. The other ten therefore do, as is the case with most regional instruments. Some definitions appear to include not very grave conduct. However, traditionally the actus reus of terrorism must be a grave crime. The draft version of a convention with a complete definition includes producing death or grave individual harm, grave injury to property – which includes the environment and public transport – or injury to systems or property that produces large-scale economic misfortunes. There is no uniform practice in terms of the ways in which the perpetrators of terrorism are described. There are absolute condemnations of such perpetrators, but certain regional agreements excuse persons fighting against alien occupation or for domestic liberation in conformity with international legal principles. It should be recognised universally that aiming at civilians is inadmissible. Therefore suggestions have been made that the only victims of terrorism are civilians. However, in the absence of an armed conflict the term 'civilians' is quite useless. Regarding the question of State terrorism, many Western States at the United Nations have held that illegal State conduct should be dealt with by the common laws of State responsibility rather than by criminal law. Other States have argued that terrorism can also be commissioned by State actors.

What differentiates terrorism from other crimes is the mens rea requirement. Terrorism must be committed with a particular purpose. Like genocide, terrorism has two aspects to its mens rea; a conventional mental element belonging to the actus reus and another aspect specific to terrorism. Unlike in most areas of criminal law, purpose and intent can be used indistinguishably. A majority of the eleven international instruments concerning terrorism do not contain a specific mental element requirement. Although this exclusion enabled the conclusion of these instruments, they thereby willy-nilly do not cover the most important characteristic of terrorism. Instruments that do contain a special intent requirement have different standards. Intent is not the same as motive. Motives cannot justify terrorism. If the purpose or intent is made specific, a further restriction to motive is not needed.

The eleven international agreements on terrorism mainly deal with the suppression of terrorism in a context of international collaboration. They adhere to the aut dedere aut judicare principle and aim at domestic trials of terrorism. However, it is not easy to ascertain how many trials or extraditions have occurred based on these conventions. The Lockerbie incident was not tried under terrorism provisions but with reference to murder. One difficult dilemma is the task to strike a balance between respecting human rights of persons alleged of terrorist acts and protecting everyone from such acts. One such right that can never be compromised for suppressing terrorism is the right to be free from torture. State agents are categorically forbidden to torture persons and to deliver persons to States where it would be reasonable to believe that they would be at risk of torture.

Domestic trials of terrorism can face numerous difficulties. Especially if municipal laws include international law, it may be find hard to define terrorism. There can be hesitance or inability to prosecute on the basis of intercepted or intelligence-related evidence. Not all ways in which persons accused of terrorism have been detained have been found lawful. Where the process of collecting evidence is going slow, the slowing down of the suspect's trial becomes problematic. In the United States of America there are many laws on the avoidance and prosecution of municipal and international terrorism. However, there has been disagreement over the question whether it would be better to prosecute or to indefinitely detain persons suspected of terrorism. As there have been efforts to eventually close the Guantanamo Bay camps, there is more support for prosecutions. The United Nations General Assembly and Security Council have emphasised that States must always respect international human rights standards in their efforts to suppress terrorism. Certain human rights provisions are also present in some of the eleven international conventions dealing with terrorism. Largely, however, these conventions leave much space for States to decide how they comply with international human rights law.

Terrorism has also been called an international crime. This is in spite of the fact that there is no international criminal institution with jurisdiction over terrorism. Nevertheless, the underlying act may be tried as a war crime or a crime against humanity. The International Military Tribunal at Nuremberg deemed the use of terror both a crime against peace and a war crime. The acts included in the eleven international terrorism agreements were also covered by the draft statute of the International Criminal Court produced by the International Law Commission. During negotiations on the Rome Statute of the International Criminal Court there was limited support for the idea of including terrorism in the Rome Statute. However, terrorism was eventually excluded from the jurisdiction of the International Criminal Court. The various conventions providing for domestic prosecutions were deemed sufficient. And it was taken into account that previous efforts at defining terrorism, for example at the United Nations General Assembly, had been unsuccessful. Resolution F of the International Criminal Court Final Act suggested that at a later stage there should be renewed efforts to define terrorism and include it in the jurisdiction of the International Criminal Court.

Terrorism is forbidden by international humanitarian law, and as such is a war crime. Article 51(2) of Additional Protocol I prohibits acts of violence or threats thereto that aim to terrorise a civilian population. This provision and its criminalisation are included in customary international criminal law. The Statutes of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone grant these institutions jurisdiction over terrorism. The Statute of the International Criminal Tribunal for the former Yugoslavia does not have this, however. Nevertheless, the International Criminal Tribunal for the former Yugoslavia has argued that it does have jurisdiction over terrorism because Article 3 of its Statute on war crimes is broadly phrased. However, the war crimes provisions in the Rome Statute do not give the International Criminal Court jurisdiction over terrorism as such. In 2003, General Galić was convicted for the war crimes count of having commissioned acts of violence the most important goal of which was to terrorise the civilian population. The act had no apparent military importance. Both the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone have held that for this war crime it need not be proven that the underlying act led to death or injury. The actus reus of terrorism as a war crime is not producing fear, because it is assumed that all acts of warfare do this. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia held that the actual terrorisation is no component of the war crime. With respect to the mens rea, it must be shown that the perpetrator specifically intended to spread terror among the civilian population as a result of the act. This intent must be the most important purpose of the act. Thus, from international case law there can be distilled three elements that compose the war crime of terrorism. Firstly, the perpetrator carries out violent acts or threatens to do that. Secondly, the defendant willfully made a civilian population or other non-combatants the object of such acts. Thirdly, the perpetrator executed the act or threat with the specific purpose of terrorising the civilian population.

Terrorist acts can also constitute crimes against humanity. Terrorism as such is not a crime against humanity in the Statutes of the International Criminal Tribunals for Rwanda and for the former Yugoslavia. Nevertheless, if the underlying act is widespread or systematic (and directed against a civilian population, for prosecutions before the International Criminal Court) then the act could fall within the jurisdiction of all the Statutes as a crime against humanity. After the attacks of 11 September 2001 there were suggestions that the terrorist acts constituted crimes against humanity.

Torture

Torture is evidently and unqualifiedly forbidden by international law. There are no exceptions to this rule, ever. The prohibition of torture is a jus cogens norm and States become responsible when their nationals torture persons. Torture as such is not, however, an international crime. In some circumstances, the act of torture may amount to a war crime or a crime against humanity. One important international instrument on torture is the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984. This Convention was produced to make international law on torture more successful. It obliges States Parties to the Convention to make acts of torture criminal in their municipal law systems, including efforts, engagement and complicity.

For the purpose of the Convention, the Convention includes two elements that make up the actus reus of torture. Firstly, torture concerns acts through which serious bodily or mental suffering or pain is enforced on a person. Secondly, a State official or other individual acting in their official capacity must instigate, consent to or acquiesce in the act. Other definitions do not cover this second element, but might be broader or include an intent requirement. It has been suggested that the description of torture in the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984 is not a legal definition that can readily be used in international criminal law. It might be said that particular omissions may amount to torture, for example the omission to offer a prisoner food. But omissions are not included in the Convention. It may be difficult to determine whether or not an act meets the seriousness threshold in the definition. This is because the seriousness is determined by the suffering and pain of the victim, not the act itself. Several legal memoranda for the Administration of the United States of America written in 2002 and 2003 interpreted torture in a very narrow way. This interpretation was rejected by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. Specifically, it is very hard to say whether ill-treatment should be differentiated from cruel, inhuman or degrading treatment. Human rights case law can be helpful in answering this question.

It would not be practical to try to give a comprehensive overview of acts that can constitute torture here. However, a few examples can be given. The European Court of Human Rights has hinted that hooding, wall standing, deprivation of sleep, drink or food and subjection to noise can constitute torture. With respect to some acts serious suffering or pain does not need to be proven, for such suffering or pain is assumed. Among such acts are sexual violence, rape, solitary confinement and waterboarding. If suffering or pain is the result of licit punishment, then this does not constitute torture. Also, some means of punishment are not covered by the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984. This Convention requires that torture be commission by a State official or another person acting in their official capacity. There is no such requirement in the category of crimes against humanity, nor in the case of war crimes.

The mens rea of torture is that it must be done intentionally. Additionally, the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984 requires that the perpetrator tortures with one or more of four goals. Firstly, the torture may have occurred with the purpose of either acquiring from the victim or a third person a confession or information. The second option is that the perpetrator torture in order to or punish the victim for conduct (suspectedly) commissioned by the victim or a third person. The third possibility is torture with the purpose of intimidating the victim or a third person. The fourth purpose is any discriminatory ground of any form. This list is not exhaustive, but does not allow very different mental elements. States enforcing the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984 are not obliged to maintain these requirements.

The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment 1984 adheres to the aut dedere aut judicare principle. It obliges States to have broad jurisdiction to try torture and, if the State does not do this, to deliver persons to any State for the purpose of prosecution. In addition to these provisions on torture, the Convention also explicitly prohibits States to utilise information acquired by torture in trials. States are also obliged to provide adequate compensation and reparation to victims of torture.

As with terrorism, the acts of torture may be within the jurisdiction of the International Criminal Court and the International Criminal Tribunals for Rwanda and the former Yugoslavia in certain contexts. In the Statutes of these three institutions, torture is explicitly covered as a war crime and a crime against humanity. There are many more acts that can constitute torture than in the Convention. Further, perpetrators need not act in an official capacity.

Broad liability standards - Chapter 15

 

Preliminary remarks

The substantive part of international criminal law is indispensable in deciding on a person's criminal liability. But there are other important areas of international criminal law, including the general liability principles. These principles are relevant to all crimes. They stipulate when a person incurs criminal liability for committing, engaging in or in another way being responsible for a crime. Some kinds of liability, for example aiding and abetting, are also found in municipal criminal law. Other principles, such as command responsibility, are only used in international criminal law. In municipal criminal law, the perpetrator is traditionally seen as the one who pulls the trigger. However, international criminal law tends to focus on holding accountable those who organise, order or engage in a plan to commit the crime at a high level. Thus, liability principles are relatively important in international criminal law. The multiple kinds of liability have different material elements and different mental elements. Because of this variety, persons have often been prosecuted under accomplice liability headers, in order to escape strict mental element requirements. Liability principles can sometimes overlap. The International Criminal Tribunal for the former Yugoslavia has ruled that Trial Chambers have the discretion to decide what the most suitable form of liability to be applied is. With regard to the crime of genocide, the Genocide Convention employs somewhat different liability standards. This chapter examines liability principles from an international legal perspective and from a fundamental criminal law perspective.

Commissioning, committing or perpetrating a crime

These three terms are synonymous with each other in international criminal law. But who can be said to have perpetrated or commissioned a crime? The International Criminal Tribunal for the former Yugoslavia has clarified that these concepts refer to the physical commission of a crime by the perpetrator. However, there are other forms of commission, such as joint criminal enterprise. The Appeals Chamber of the two ad hoc Tribunals has interpreted the notion of commission quite broadly. For example, with respect to genocide it has stated that commission can mean more than only the physical commission of a crime. However, the Appeals Chamber has not comprehensively stated what would be commission besides the pulling of the trigger. The Rome Statute of the International Criminal Court defines commission or perpetration in Article 25(3)(a). This Article stipulates that a person becomes criminally responsible when commissioning a crime on their own or together with or through another individual. Several questions arise out of this definition. For example, can omission be perpetration? Customary international law at least would state this is the case, if the omission violates a task to act and the omission has a real influence on the offence. Also, the Elements of Crimes of the International Criminal Court prefer the term conduct over act, in that the former but not the latter also covers omissions.

Further, it can be asked what the exact meaning is of perpetration with another person. On the face of it, this phrase would pose no difficulties. However, it can be hard to determine whether someone has perpetrated a crime together with another perpetrator, or has, for example, aided and abetted the crime. The International Criminal Court has employed Article 25(3)(a) to construct a less narrow kind of co-perpetration, which also covers acting through other persons. Article 25(3)(a) excludes liability for persons who commissioned a crime unwittingly. Thus the notion of innocent agency is acknowledged. This could apply to children, or mentally impotent persons. What is more controversial about Article 25(3)(a), however, is that it leaves open the possibility of commission by a guilty person apart from joint perpetration. A Pre-Trial Chamber of the International Criminal Court has explained in this regard that co-perpetration covers coordinated individual contributions of more persons, if they lead to the commission of a crime. Indeed, any individual person contributing to the commission of the crime incurs criminal responsibility as a substitute for all the other contributions. Such an individual can therefore be deemed a principal perpetrator to the entire crime. This broadening of the scope of perpetration is needed when persons convicted for accomplice liability can only get lower sentences than principals. However, this is not the case in international criminal law. It can therefore be asked if this expansion of commission was really necessary. A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has attempted to initiate a broad kind of co-perpetratorship. The Trial Chamber reasoned that there existed a kind of liability in at least a tacit approval to accomplish a common aim by planned collaboration and joint control over the conduct. However, the Appeals Chamber countered that there was no such notion of co-perpetratorship, as it was not supported by the customary international law or by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia.

Notwithstanding controversies over the customary condition of co-perpetratorship, this form of liability has been important for the International Criminal Court in its early cases. President of Sudan Al Bashir was charged with co-perpetration, for example. In Lubanga, the Pre-Trial Chamber argued that, in the Rome Statute of the International Criminal Court, co-perpetration builds on the defendant's joint control over the crime. In such cases no individual person has complete control, but they all rely on each other. Control is therefore shared. Here, co-perpetration has a material element with two aspects and a mental element with three aspects. One of the material elements is the presence of an express or implicit agreement or collective arrangement between the co-perpetrators. The other material element is the existence of an organised contribution by the defendant that was crucial to the perpetration of the material element of the crime. The existence of such a plan can be deduced from subsequent organised action and is not necessarily for a criminal goal. The contribution of the co-perpetrator must be crucial to the crime in that the co-perpetrator could frustrate the perpetration of the crime by not doing their part. This contribution may happen before the plan is carried out. The International Criminal Court has suggested that this contribution can be in the form of controlling an organisation. If this is the case, the organisation must have the structure of a hierarchy, and orders not executed by one subordinate should mean that another subordinate will not execute them either. Thus, the leader with control over the organisation must utilise that control by mobilising his strength and authority to ensure that his orders are followed. There are clear connections between this form of co-perpetration and Article 25(3)(b) and (d) on ordering crimes in the Rome Statute of the International Criminal Court, and joint criminal enterprise in the jurisprudence of the two ad hoc Tribunals.

In addition to the material element, co-perpetration has a mental element with three aspects. One of these is that the co-perpetrator must satisfy the mens rea of the crime in question (for example, a war crime). The second is that the co-perpetrators must all know and accept that carrying out their plan could or will lead to the material elements of the crime. This requirement entails not only that the perpetrators know and accept this likelihood, but also that they act with the particular intent to produce the actus reus, or know that this will result from their their acts in the normal course of events. The last mens rea requirement is that the co-perpetrator must know the context that makes them able to together control the crime. There is an additional requirement in the case of what is called indirect co-perpetration, where the co-perpetration happens through another person. The co-perpetrators must know of their capacity to carry out control over the crime through another person. They must know that their function is crucial. If the International Criminal Court adheres to the intention requirement (awareness that the crime is likely to or will happen), then the overlap with joint criminal enterprise will not be very significant.

Joint criminal enterprise

The origins of the liability mode of joint criminal enterprise can be found in the International Military Tribunals at Nuremberg and for the Far East. These Tribunals both held that persons who engaged in a common plan or conspiracy to commission crimes are liable for all actions made by any individual in carrying out this conspiracy or plan. The Tribunals restricted this mode of liability to crimes against peace. It is frequently simply named conspiracy. However, this is deceiving with regard to the different common law crime of conspiracy. In international criminal law conspiracy as such only exists with respect to genocide. With conspiracy, the International Military Tribunals at Nuremberg and for the Far East meant that the plans were actually carried out. None of the Statutes of the International Criminal Tribunals for Rwanda or for the former Yugoslavia or of the Special Court for Sierra Leone cover joint criminal enterprise explicitly. Nevertheless, the International Criminal Tribunal for the former Yugoslavia has gradually created a large collection of cases dealing with joint criminal enterprise. Another term for joint criminal enterprise liability is common purpose liability. The most important case here was the Appeals Chamber's decision in Tadić in 1999. Tadić had not been convicted by the Trial Chamber for his involvement in the killing of five non-combatants. The Appeals Chamber disagreed with this finding on the basis of a teleological interpretation of Article 7(1) of its Statute, which covers the different modes of liability. The Appeals Chamber argued that the purpose was to include all persons responsible for international crimes in the former Yugoslavia. The Appeals Chamber also highlighted the character of many international crimes, specifically that they are carried out together or by a sizable number of people.

By inventing this mode of liability, the Appeals Chamber had to specify the actus reus of joint criminal enterprise. On the basis of its review of several international cases the Appeals Chamber observed that there were three different types of joint criminal enterprise: co-perpetration, in which all participants have the same intent to perpetrate a crime (and one or more actually do so); the concentration camp cases; and type three joint criminal enterprise, in which crimes are perpetrated by members of the group, not part of the shared aim, but as a predictable incident to it. All of these three types have the same actus reus, which consists of three elements. Firstly, there must more more persons involved. Secondly, there must be a shared plan, objective or purpose that adds up to or includes the perpetration of a crime within the jurisdiction of the Statute of the International Criminal Tribunal for the former Yugoslavia. Thirdly, the defendant must engage in this plan by committing a crime within the jurisdiction of the Tribunal. In various ways, the Appeals Chamber in the Tadić case interpreted these three criteria for the material element rather broadly. Other cases have also added to the interpretation of the actus reus of joint criminal enterprise. Thus it has become evident that membership of a group does not in itself lead to individual criminal responsibility. Both direct and indirect involvement can lead to individual criminal responsibility. The contribution made by the accused does not need to be crucial or even important, according to the Appeals Chamber in Kvočka. However, in a later case the Appeals Chamber ruled that the contribution must be significant. It is not necessary that the principal perpetrators who carry out the physical and essential act of the crime be part of the joint criminal enterprise. However, if this is not the case then there must be a link between the members of the joint criminal enterprise group and those who carry out the crime. The creation of joint criminal enterprise by the International Criminal Tribunal for the former Yugoslavia can be said to be sensible. This is because the pervasive if not inevitable nature of international crimes as involving many perpetrators means that it would be very hard to satisfy the mens rea demands in the case of high-ranking participants. However, the Tribunal has also been criticised for expanding liability to include those who are not really blameworthy. If the shared plan or goal essentially changes, then this is seen as another plan or goal. A person can only be held responsible for the plan or goal to which they subscribed. If they implicitly or explicitly consent to the change of the plan, they can be held responsible too.

Although the actus reus of joint criminal enterprise is always the same, the mens rea can be used to differentiate between the three types of joint criminal enterprise. Again, the Appeals Chamber in Tadić is indicative here. The first type of joint criminal enterprise demands that all co-perpetrators have the intention to commit a particular crime. The second type, the concentration camp cases, requires individual awareness of the system of maltreatment. This can be deduced from a status of authority of the defendant. The second type of joint criminal enterprise also demands the intention to advance this system of maltreatment. For the third type, what must be proven is that the defendant had the intention to be involved and advance the criminal acts or criminal goal of a group and to help the joint criminal enterprise or, in any case, the group's perpetration of a crime. The defendant can also incur individual criminal responsibility for a crime that had not been agreed on in the shared plan or goal. However, this can only happen if it was predictable that one or more of the group's members could commit this crime, and the accused willfully accepted this risk. From these rules from the Tadić Appeal Judgement several observations can be made. The first type of joint criminal enterprise approximates the notion of joint perpetration. The least narrow kind of liability is seen in type three. Here, the foreseeability is decisive. The mens rea requirement of type three is not the same as negligence, because it also demands that the defendant willingly took the risk that a group member would commit a crime. This standard therefore demands subjective recklessness. Any deduction of the mens rea must consider of what the defendant was aware.

Later, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia found that joint criminal enterprise constitutes a kind of committing, in the wording of Article 7(1) of its Statute. Especially for type three this categorisation is questionable. It is important to be precise about the character of joint criminal enterprise. For instance, if joint criminal enterprise is seen as a kind of principal perpetratorship, then those who carry it out might be aided and abetted by other persons. Those part of joint criminal enterprise could not be aided and abetted by others if joint criminal enterprise is seen as a secondary kind of liability. Generally, imprecision about the nature of a mode of liability risks clarifying inadequately how culpable a person is. Joint criminal enterprise has been very problematic. Specifically, the decision in Tadić that joint criminal enterprise existed on the basis of several post-Second World War cases has been criticised repeatedly (and unsuccessfully). It has been argued that joint criminal enterprise is too undefined and elastic to be fair to the defendant. There are concerns that the option of joint criminal enterprise could stimulate prosecutors to try persons for joint criminal enterprise in ambiguously worded ways, thus making preparation hard for the defence. A critique of the mens rea standard is that a person could be found guilty for a particular intent crime including genocide without having had that intent, if the commission of the crime was merely foreseeable. On the basis of this observation it has been suggested that prosecutions on the basis of joint criminal enterprise may avoid the proper mens rea demands for some crimes.

The principle of joint criminal enterprise is also included in the Rome Statute of the International Criminal Court, in Article 25(3)(d). This Article stipulates that persons shall incur individual criminal responsibility if they in any other way help the (endeavoured) perpetration of a crime within the jurisdiction of the Court by a group of individuals acting with a shared goal. That help must be intentional and must fulfill one of the following two requirements. Either the help must be made with the goal of advancing the group's criminal actions or criminal goal, where these actions or this goal entails the perpetration of a crime that falls within the jurisdiction of the Court. Or the help must be made in the awareness of the group's intention to commission the crime. Article 25(3)(d) seems similar to types one and two of the joint criminal enterprise doctrine developed at the International Criminal Tribunal for the former Yugoslavia. However, there are stricter mens rea and a looser actus reus requirements.

Aiding and abetting

Aiding and abetting (or assisting, or encouraging) as a mode of liability is uncontroversial in international criminal law. An important early example of a case involving aiding and abetting was the Zyklon B case. In this case, German industrialists were found guilty of providing the venomous Zyklon B gas to the Schutzstaffel, which used it to kill persons in concentration camps. Aiding and abetting as a mode of liability is included explicitly in the Statutes of the International Criminal Tribunals for Rwanda and for the former Yugoslavia, the Special Court for Sierra Leone and the International Criminal Court. However, there are still problems with the precise scope of aiding and abetting, and about the overlap between aiding and abetting and joint criminal enterprise. Regarding this latter point, however, the International Criminal Tribunal for the former Yugoslavia has stated that convicting a person who has engaged in a joint criminal enterprise for aiding and abetting would be an understatement of their culpability. Thus generally those who aid and abet should receive less severe punishments than those who co-perpetrate.

In Tadić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia elaborated on the definition of aiding and abetting. It said that a person who aids and abets must do something particularly aimed to assist, stimulate or give moral help to the perpetration of a particular crime. Further, this support must have a real influence on the commission of the crime. The mens rea is awareness that the acts carried out by the aider and abettor help the perpetration of a specific crime by the principal perpetrator. The requirements of a direct and real influence on the commission of the crime are not very high. Persons have been convicted for aiding and abetting by giving weapons to the principal perpetrator, or preventing prisoners from escaping. Presence at a crime scene in itself does not lead to aiding and abetting, but presence with a certain authority may do this. Omissions can constitute aiding and abetting if the defendant was legally required to avoid the crime and was capable of interfering. In customary international law, aiding and abetting can happen before, during and after the commission of the crime. Regarding the mens rea, the perpetrator must know the crucial elements of the crime. The knowledge requirement of aiding and abetting has been questioned as blurring the special intent nature of genocide. These have not changed the practice of the ad hoc Tribunals.

The definition of aiding and abetting in the Rome Statute of the International Criminal Court is somewhat different from how this mode of liability has been used by the two ad hoc Tribunals. Article 25(3)(c) provides that a person is individually criminally responsible for aiding and abetting if that person for the goal of making easier the perpetration of a crime, aids, abets or in another way assists in the (endeavoured) perpetration of the crime, including offering the means for the perpetration. One significant difference is that this definition does not include the substantiality requirement used by the ad hoc Tribunals. The mens rea is raised from awareness or knowledge to the purpose of assisting. This is likely to make prosecutions for apparently neutral actions more difficult.

Ordering, instigating, soliciting, inducing and inciting

Another mode of liability in international criminal law involves ordering. Because international crimes are most frequently perpetrated by many persons together, it is often the case that certain people order the crimes to be committed. War crimes defendants state this very often in order to suggest that only those with authority should be punished. However, the defence of superior orders is generally not accepted. Indeed, it has always been acknowledged that those who order crimes to be committed bear responsibility for them. The ad hoc Tribunals, the Special Court for Sierra Leone and the International Criminal Court treat ordering as a mode of liability separate from committing. Ordering requires three aspects: a relationship between someone with authority and a subordinate, the transfer of an order by the former to the latter, and an appropriate mens rea. This relationship need not be legally acknowledged; the point is that it should exist factually and would oblige the subordinate to perpetrate a crime in obeying the superior's orders. The giving of the order can be proven by contextual evidence. The superior does not have to be the creator of the order to be found guilty. Rather, passing it on can be sufficient. However, the order must in a significant way contribute to the perpetration of the crime (but it is not necessary that the order be a sine qua non of the crime). The International Criminal Tribunal for the former Yugoslavia has specified the mens rea of ordering. This is knowledge of the real likelihood that a crime will be perpetrated in the carrying out of the order. If a person orders with such knowledge then that person is deemed to accept the crime. However, it is not required that the order appears illegal. The mental element of the person who ordered is decisive for determining the crime for which that person is liable, not the mental element of the subordinate.

The Rome Statute of the International Criminal Court includes ordering in Article 25(3)(b). It is included as a supplementary mode of liability. Persons incur responsibility for ordering when the ordered crime happens or is attempted. This approach follows the way the ad hoc Tribunals have dealt with ordering. It can be questioned whether this restriction is needed or even suitable. This is because in some post-Second World War cases persons were found guilty for having demanded orders that were not put into effect. There have been suggestions that ordering should be envisioned as a kind of perpetration by means, but the better view is that this should not be the case.

Instigation, solicitation, induction and incitement are similar modes of liability. Instigation may be described as provoking, stimulating or imploring a second person to perpetrate a crime. It appears to be very similar to Article 25(3)(b) of the Rome Statute of the International Criminal Court on inducing or soliciting. In Blaškić, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia stated that the crucial element of instigation is that the instigator prompts a second person to perpetrate a crime. It is not necessary that the instigation is a sine qua non of the crime, but it must be an evident supporting factor. Instigation can be explicit or implicit and can materialise in a multitude of ways, including omissions. The instigator must somehow influence the principal perpetrator. But this does not mean that the first idea of the crime must have been conceived by the instigator. If the principal was already thinking of perpetrating the crime, then the instigator could be convicted for having given the ultimate determination to the principal. If the principal has already decided with certainty to perpetrate the crime, then further support could count as aiding and abetting. The mental element for instigating is similar to that of ordering. The instigator must know that there is a significant likelihood that the instigated person will perpetrate a crime in the carrying out of that instigation. Instigation means accepting that a crime will be perpetrated.

The Genocide Convention as well as the most important statutes of international criminal tribunals and courts criminalise immediate and public incitement to genocide. In spite of the other forms of liability involving encouragement, liability for incitement to genocide does not require evidence that any person even tried to commit genocide. The most important case involving incitement to genocide is the Media case before the International Criminal Tribunal for Rwanda. In this case, it was held that direct and public incitement to genocide involves a call to commit genocide to a multitude of people in a public area or to people belonging to the general, broad public through, for example, mass media. There have not been many difficulties with ascertaining what is and what is not public. However, it is not entirely certain whether incitement through Internet or e-mail could be regarded as public. It is less clear what direct incitement is. In Akayesu, the Trial Chamber of the International Criminal Tribunal for Rwanda explained that the term should be interpreted in its cultural and language-related circumstances. Prosecutions of such crimes outside of the circumstances of the crime scene may make it harder to determine what direct incitement means. In the Media case, it was considered that the mental element of incitement to genocide is the intent to directly induce or give rise to the perpetration of genocide by another person. It also entails that the inciting person must have the purpose to establish a certain state of mind in the incited person that is required for that person to perpetrate the crime. Thus it is required that the person inciting to genocide have themselves the specific intent to perpetrate genocide.

Planning, preparing, trying and conspiring

Two other modes of liability that may be said to go hand in hand are planning and preparing a crime. Preparing or planning an aggressive war was covered by the Statutes of the International Military Tribunals at Nuremberg and for the Far East. The provisions covered those who led, organised, instigated and were accomplices and were involved in articulating a shared plan. At the domestic level, these crimes tend to be classified as inchoate. This means that they are incomplete crimes that can lead to punishment without evidence that the crime was finalised. This interpretation of planning and preparing is also supported by the way they are included in the Statutes of the Special Court for Sierra Leone and the International Criminal Tribunals for the former Yugoslavia and Rwanda. This is because these Statutes criminalise the aiding and abetting of planning and preparing. This implies that planning and preparing are in themselves primary crimes and that the planned or prepared crimes need not be committed. However, certain cases before the International Criminal Tribunal for the former Yugoslavia and later also in cases before the International Criminal Tribunal for Rwanda have held that for planning the crime must later be committed. As with the previous modes of liability, the mens rea of planning is that a person plans conduct knowing the real likelihood that a crime will be perpetrated in the performance of that plan.

Another accessory mode of liability is trying or attempting to commit a crime. All international criminal tribunals before the establishment of the International Criminal Court only criminalised this for genocide. At the International Criminal Tribunal for the former Yugoslavia, conduct that could have been seen as attempts to commit a crime has rather been prosecuted under other liability provisions. For example, an act that could be seen as attempted murder would be tried under the header of violence to life and person. In Article 25(3)(f) of the Rome Statute of the International Criminal Court is included a broader criminalisation of attempts to commit international crimes. The attempt must involve performing real action that begins the carrying out of the crime by taking a significant step. However, it must be the case that the crime does not happen due to a context that is separated from the individual's intentions. A person cannot be liable for attempting to commit a crime if that person leaves the attempt or in another way precludes the commission of the crime and in a voluntary way abandons the criminal aim. This Article 25(3)(f) compensates for the lack of a clause on preparing or planning in the Rome Statute of the International Criminal Court. If a person abandons the effort to commit a crime but the effort is taken up by other persons and completed by them, then the original person could nonetheless be liable for aiding and abetting or engaging in a joint criminal enterprise.

Conspiracy, another liability mode, means an inchoate, accessory crime involving an agreement to perpetrate a primary crime. There need not be evidence that this primary crime occurred. The International Military Tribunals at Nuremberg and for the Far East used this mode of liability with respect to crimes against peace, but not crimes against humanity or war crimes. The cause of this partial application of conspiracy was that the Judges disagreed over the question whether conspiracy existed in international law at the time. Because of this uncertainty the International Military Tribunal at Nuremberg interpreted conspiracy in a narrow way. However, the International Military Tribunal for the Far East interpreted conspiracy very generally. At present, conspiracy with respect to crimes against humanity or war crimes does not exist. Conspiracy to perpetrate genocide does. It is covered by the Genocide Convention as well as the Statutes of the ad hoc Tribunals. Conspiracy to perpetrate genocide entails that two or more people agree to perpetrate genocide. The mens rea involves the special genocidal intent described above.

The different mental elements

A crucial element of criminal law in general is that a person must somehow be culpable for their conduct. This becomes evident through their mens rea. There are many kinds of mens rea, ranging from the special genocidal intent and intention in general to recklessness and perhaps negligence. Separate crimes have their own mens rea requirements. Therefore, they tend to be treated with the applicable principle of liability. There is not much on mental elements in the Statutes of the ad hoc Tribunals or of the Special Court for Sierra Leone. Therefore, case law is relatively important here. In Blaškić, the Trial Chamber stated that the mental element can range from guilty intent to grave criminal negligence. However, there is quite some controversy over whether negligence is an appropriate mens rea standard in international criminal law. Apart from genocide, the ad hoc Tribunals have not dealt much with the question what intent covers. It is sometimes confusing that the Tribunals have used the term to mean mens rea generally. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has held that intention refers to conduct that is objectively not incidental but deliberate. However, this statement is very unclear. The ad hoc Tribunals have held that recklessness can be sufficient for finding a person guilty of many crimes. Therefore they have not evidently marked the differences between recklessness and intention. The statement in the Blaškić Appeal Judgement on the mens rea of ordering might be taken to be an observation on the general mens rea requirement. Thus, generally a person could be found guilty before the International Criminal Tribunal for the former Yugoslavia if with their conduct that person knew that there was a real likelihood that a crime would be committed. There have been suggestions that recklessness is the default mens rea norm at the ad hoc Tribunals.

Regardless of whether this is indeed the case, the International Criminal Court has a different approach. In Article 30 on the mental element it states that the standard is intent combined with knowledge. With respect to acts or omissions, there is intent where the person means to participate in the conduct. With respect to a consequence, intent is said to exist where a person means to produce a consequence or knows that it will happen in the normal course of events. Article 30 defines knowledge as awareness that a context exists or a consequence will happen in the normal course of events. Article 30 standardly applies, unless there are particular provisions stipulating something else. It is not likely that the International Criminal Court could use customary international law to set a lower mens rea threshold. This threshold is considerably higher than what is required in case law produced elsewhere. This situation may have consequences where for certain crimes domestic systems and customary international law have different mens rea standards. For example, efforts to find that case law and the requirements of the Rome Statute of the International Criminal Court demand the same standards can be made more difficult. The demand in Article 30 that the accused must know with respect to a consequence that that consequence will happen in the normal course of events appears to leave a hole.

Command responsibility or superior responsibility

Command responsibility or superior responsibility is another liability mode in international criminal law. It has no equivalent on the municipal level. It is a quite general mode of liability that is justified by the decorations, rights and amenabilities of command positions. The notion of command responsibility dates back to the works of Sun Tzu. Command responsibility does not only have a criminal nature; it stretches beyond that. An evident example of criminal command responsibility can be encountered in the French Code of 1439, established by Charles VII of Orleans. The contemporary criminal notion of command responsibility is based on the Report of the Commission of Inquiry on the Responsibility of the Authors of the War in 1919. This Report suggested that commanders could be tried for the crimes committed by their subordinates, if they were aware of such crimes but did not interfere. However, the first main contemporary case involving the notion of command responsibility was the Yamashita case before the International Military Tribunal for the Far East. This trial became controversial, particularly with regard to the facts of the case and the justness of the trial. The International Military Tribunal for the Far East treated command responsibility in a quite comprehensive way, which sometimes seemed to overlap with joint criminal enterprise. The International Military Tribunal at Nuremberg did not cover command responsibility. It was included as a mode of liability in Additional Protocol I and Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia. This Article states that a commander is liable when their subordinate perpetrates a crime and the commander had reason to be aware that the subordinate was going to do or had done this. Also, the commander must have not taken the needed and rational steps to avoid such acts or punish the perpetrator for the crimes.

Article 28 of the Rome Statute of the International Criminal Court also provides for command responsibility. In Article 28(a), the Statute provides that a military superior or someone factually performing as a military superior is criminally liable for crimes within the jurisdiction of the International Criminal Court that are perpetrated under their factual superiority or authority and control. The crimes must have been perpetrated as a result of the failure of the superior to correctly perform control over their forces. Two further requirements must be satisfied. The first is that is that the military superior was aware or on the basis of the context at the time should have been aware that their forces were perpetrating or going to perpetrate crimes. The other requirement is that the military superior did not take all needed and rational steps within their capacity to avoid or suppress the perpetration of crimes or to send the issues to the relevant authorities for investigation and trials. Article 28(b) includes another, broader characterisation of command responsibility. It stipulates that superiors in superior-subordinate relationships not covered in Article 28(a) can nonetheless be criminally liable for crimes within the jurisdiction of the International Criminal Court committed by their subordinates. This can be the case if the subordinate did so under the factual control and authority of the superior, as a product of the latter's failure to correctly perform control over their subordinate. Three requirements must all be fulfilled. The first requirement is that the superior was aware of, or deliberately neglected information that evidently showed, that the subordinate was perpetrating or was going to perpetrate a crime. The second requirement is that the crimes involved acts that fell within the superior's factual responsibility and control. Lastly, the third requirement is that the superior did not take all needed and rational steps within their capacity to avoid or suppress the perpetration of crimes or to send the issues to the relevant authorities for investigation and trials. It is noteworthy that Article 28 reflects customary international law on command responsibility, but adds to it the requirement of causation.

The demand that a relationship must exist between a superior and a subordinate may seem uncomplicated when there are evident, formal strings between the two, for example in a military context. Yet, contemporary armed conflicts do not always have these elements. For that reason the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Čelebići decided that factual control is the test for a superior-subordinate relationship. The International Criminal Court concurs that real influence is insufficient. A de jure position in a hierarchy may or may not constitute prove of effective control. Another type of proof may be found where a person issues commands. However, if the supposed subordinate does not follow the commands, this could ground an argument against the existence of a superior-subordinate relationship. This must be assessed in each case individually.

Superior-subordinate relationships can exist outside of the military context. Civilians can also be superiors. Here also, the decision on the existence of such a relationship is determined by the question whether the superior factually exercised control over the subordinate. Article 28(b)(ii) additionally demands that the crimes are within the responsibility of a civilian superior. This effective control must be similar to the grade of control of military superiors. In Hadžihasanović, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia held that in a case of command responsibility the crimes must be perpetrated while the superior possessed real control over the principal. This decision has been criticised on the ground that it made a hole in protection. Later cases on this question have made customary international law unclear on this.

The mens rea of command responsibility has proven quite problematic. One reason for this is the broad scope of command responsibility, which frequently comes to apply not by action but omission. Another reason is the Yamashita case is both crucial to this mode of liability and ambiguous in many aspects of law. The fair trial standards of the case have also been questioned. The International Criminal Tribunal for the former Yugoslavia has painstakingly tried to elaborate that command responsibility is not a kind of strict liability. In Čelebići, the mens rea of command responsibility was established. The requirement can be fulfilled in two ways. Either the superior actually knew, through immediate or contextual evidence, that their subordinate was perpetrating or going to perpetrate a crime. Or the superior possessed information of a character that minimally would notify the superior of the danger of a crime by showing the necessity for more investigations so as to make clear whether the subordinate had committed or was going to commit a crime. These standards are now accepted. There is a number of ways in which contextual evidence of such knowledge can be proven. However, it is necessary that the superior was or should have been aware of crimes committed by their subordinates, or that were going to be committed by their subordinates. Thus some broad notion of criminality is not enough. In the Blaškić Trial Judgement, the notion that a superior can be found liable if they had reason to know of the crimes was broadened. This was done in the statement that ignorance of the subordinates' crimes is no defence when that ignorance is based on the superior's neglect of their duties. However, this suggestion has not received more support at the International Criminal Tribunal for the former Yugoslavia.

At the International Criminal Court there are different mens rea requirements for command responsibility, depending on whether the superior is a military or a civilian. In the case of military superiors, the standard is that they were aware of or due to the context at the time should have been aware that their troops were perpetrating or were going to perpetrate crimes. Civilian superiors must have been aware or deliberately neglected information that evidently showed that the subordinates were perpetrating or going to perpetrate crimes. It has been doubted whether this differentiation between military and civilian superiors is supported by customary international law. The International Criminal Court has clarified that the notion that a superior should have been aware of the crime is one of negligence. This standard therefore departs from that of the International Criminal Tribunal for the former Yugoslavia.

Superiors can incur criminal liability if they fail or refuse to take needed and rational steps to avoid or punish the crimes of which the superior was or should have been aware. Thus, there are two types of liability here; liability arising from the failure to avoid, and from the failure to punish. If a person is liable for a failure to punish, then that person need not have been aware of the crimes before they happened. Likewise, that the superior punished the crimes can be no defence against the count that the superior did not take needed and rational steps to avoid the crimes. What such steps are should be determined with reference to the level of real control that the superior had over the subordinates. Thus a circumstantial investigation is needed. In Orić, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia made a few guidelines that are useful for determining whether a superior can be said to have failed to prevent crimes. Firstly, the steps not taken can be identified in relation to the level of real control that the superior had over the subordinates. Secondly, the steps must be made to avoid planning or preparation of the crime, not only the perpetration of the crime. Thirdly, the more severe and/or immediate the possible crimes of the subordinates seem, the more alert and speedier the superior should answer. Fourthly, it is not required that a superior does what is impossible. Significant acts are commanding specifically that international crimes may not be committed, and making sure that such commands are implemented. A Pre-Trial Chamber of the International Criminal Court has also made some suggestions pertaining to relevant measures in an armed conflict context. Firstly, the superior should make sure that their forces are sufficiently experienced in international humanitarian law. Secondly, the superior should acquire reports that military acts were performed with respect for international law. Thirdly, the superior should give orders that the important practices be made to respect international humanitarian law. Fourthly, the superior should discipline with the purpose of avoiding the perpetration of crimes by the superior's subordinates. With regard to the task to punish, the Trial Chamber in Orić observed that this task only arises when the perpetration of a crime by a subordinate can be rationally supposed.

As has been stated above, the International Criminal Court has invented the requirement of causation with respect to command responsibility. This means that the superior must have caused the commission of the crime by the subordinate. This requirement is awkward, however, because the causation can only be based on the superior's omission rather than act. Also, failure to punish a crime is logically unrelated to how that crime was caused. In Čelebići, the Trial Chamber stated that causation may not be a separate aspect of command responsibility, but that nonetheless causation can be required insofar as a subordinate would not have perpetrated a crime but for the superior's omissions. Still, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has repeatedly affirmed that there does not exist any causation demand. However, under the Rome Statute of the International Criminal Court no prosecutions can take place involving command responsibility without this causation. However, the International Criminal Court has explained that this is a relatively low standard, referring to a heightening of the chance that the subordinate would perpetrate a crime.

It is still partially unclear what the character of the liability mode of superior responsibility is. In some domestic legal systems, as in the Rome Statute of the International Criminal Court, superior responsibility is a kind of accomplice liability. In other systems it is a separate crime of omission. These latter systems, including Canada and Germany, have constructed superior responsibility like this because it would not be fair to convict someone on the basis of another person's perpetration of a crime with a low mens rea requirement. Judge Shahabuddeen in Hadžihasanović argued that the perpetration of a crime by a subordinate does not automatically make the subordinate's superior party to that crime. Thus, according to him, command responsibility is not a kind of accomplice liability. Depending partly on this suggestion, the Trial Chamber in Halilović affirmed that superior responsibility entails responsibility for an omission. The superior has responsibility not because it is argued that in fact the superior committed the crime themselves, but rather because they violated their positive duty to act. These views received more support in subsequent cases before the International Criminal Tribunal for the former Yugoslavia. However, the Rome Statute of the International Criminal Court appears to treat superior responsibility as a form of accomplice liability. In any case, superior responsibility includes many separate kinds of liability, from negligent failure to act on one's duty to conscious failures to interfere. By including this variety of liability forms, superior responsibility could be criticised from a perspective of fair categorising, like joint criminal enterprise. Also, convictions for genocide under the header of superior responsibility has made some fear that the gravity of the label of genocide is undermined by such convictions.

Defences, or grounds for omitting criminal responsibility - Chapter 16

 

Preliminary remarks

Defences are often a less appreciated part of international criminal law. In the Rome Statute they are included as grounds for omitting criminal responsibility. The existent international criminal courts and tribunals have not devoted much attention to defences in their case law. Multiple reasons can explain this situation. One is that there tends to be little compassion for the accused in international criminal law. Some have suggested that those who have committed barbarous crimes can use defences to escape punishment. Another reason is that prosecutors often opt to try only those who do not have likely claims of defences. Nevertheless, defences constitute a crucial part of (international) criminal law. This chapter only deals with the substantive international law relating to defences, and not procedural law (and thus excludes, for example, the ne bis in idem principle or immunity issues).

Some conceptual issues should be made clear at the beginning. In civil law systems a rigid distinction tends to be made between excuses and justifications. But in common law systems, these are grouped together as defences. Generally, justifications are claims that the act or omission of the accused was acceptable and therefore necessarily legal. An example of a justification is self-defence. Excuses, broadly speaking, do not aim to defend the act or omission but rather try to argue that the defendant is not culpable. The distinction between excuses and justifications has significant consequences (in domestic systems), but it is not always clear. For instance, a person can be convicted for aiding and abetting a justified act or omission, but not an excused act or omission. It is not certain whether the distinction between excuses and justifications was made at the Rome Conference. The Rome Statute of the International Criminal Court therefore does not speak of excuses, justifications or defences, but of grounds for excluding criminal responsibility.

There is a third type of defences. These defences argue that the prosecution has neglected to indicate a crucial element of the crime, and that therefore the defendant cannot be found responsible. These pleas often concern the mens rea. Some domestic systems do not cover such arguments as defences, but the Rome Statute of the International Criminal Court implicitly does. Grounds for omitting criminal responsibility are not mitigating factors. Mitigating factors influence the question of punishment, not responsibility.

The International Criminal Court and grounds for omitting responsibility

The Rome Statute of the International Criminal Court does not completely mirror customary international law pertaining to defences. Nevertheless, it is the first treaty that comprehensively discusses defences. Its Articles on defences constitute a compromise between delegates from common law systems and those from civil law systems. From a criminal law perspective, they are therefore not ideal. Article 31 mentions several defences, including intoxication, insanity or mental incapacity, self-defence (among which are defence of others or property), necessity and duress. Article 31(1) explains that Article 31 was not designed to be exhaustive. For example, Articles 32 and 33 deal with other defences. Importantly, Article 31(2) stipulates that the International Criminal Court must analyse the applicability of the grounds for omitting liability mentioned in the Rome Statute to the trial before it. One of the drafters of Article 31(2) has suggested that this particular provision means that the International Criminal Court has the discretion to not apply a defence even if the Rome Statute would demand it. A better interpretation of Article 31(2) would be that the International Criminal Court has the power to ascertain the factual relevance of a defence before it starts to discuss it in detail in the trial. Article 31(3), however, stipulates that in addition to the defences mentioned explicitly in the Rome Statute, the International Criminal Court may apply other defences based on applicable law, according to Article 21. There are several defences that defendants before the International Criminal Court could use that are not included in the Rome Statute, but are nonetheless based on subsidiary applicable law.

Insanity

In criminal law, the notion of insanity can be used interchangeably with mental incapacity. Frequently, this defence leads to a plea that there is a lack of evidence. This is not the same as the plea that a defendant is unable to plead. The Rome Statute of the International Criminal Court is the first statute of an international criminal court or tribunal in which insanity is expressly included. Article 31(1)(a) allows for a defence when the accused suffers from a mental illness or shortcoming that annihilates the accused's ability to be aware of the illegality of character of their conduct. It also permits a defence when the accused suffers from a mental illness or shortcoming that annihilates the accused's ability to control their conduct in accordance with the law. This provision is generally accepted. It includes three situations. One of these is a classic example of an insanity plea, when a defendant is not able to conceive the character of their conduct. An example frequently given here is of a person who cuts another person's throat supposing that it is a bread. Such a person would require treatment rather than imprisonment. Another situation covered by Article 31(1)(a) is where a person cannot conceive the illegality of their conduct. This is slightly different from the first situation. The third situation that falls under Article 31(1)(a) is that of an irrepressible urge, where a person conceives of the character and wrongfulness of the act or omission, but by a mental disease is unable to cease the conduct. This disease need not be permanent. Generally, pleas of insanity demand prove from experts. Importantly, Article 31(1)(a) does not demand damage, but destruction of the defendant's capacity to understand the illegality or wrongfulness of their conduct. This is a high threshold, but it accords with a majority of municipal laws on this matter. One flaw of Article 31(1)(a) is that unlike many domestic provisions it does not include a particular verdict for when someone is found not guilty due to insanity. Many domestic provisions stipulate that such persons must be subjected to psychiatric investigation and treatment.

Intoxication

There have been many cases in which persons who were intoxicated perpetrated international crimes. Examples include Sonderkommandos during the Second World War, drunken persons partaking in the Rwandan genocide and intoxicated child soldiers. It is not very likely that many persons who are most responsible for the commission of grave international crimes could rely on this defence. It is covered by Rome Statute Article 31(1)(b). This Article states that for the defence of intoxication to apply, that intoxication must have annihilated the defendant's ability to understand the illegality or character of their conduct, or ability to control their conduct in accordance with the law. An exception is where the defendant has voluntarily become intoxicated knowing or neglecting the risk that due to the intoxication they were likely to participate in conduct amount to a crime. Permanent alcoholism or a drugs addition can also count; the point must be that the defendant did not have the mens rea. The Article applies mainly to involuntary intoxication. Voluntary intoxication can also be a defence, but only when the defendant was not aware that they could participate in an act or omission forbidden by the Rome Statute of the International Criminal Court. Whether voluntary or involuntary, the intoxication must have annihilated the defendant's ability to conceive of the character or illegality of their conduct, or ability to act in accordance with the law. Substantial damage is not enough. It seems that Article 31(1)(b) does not permit a plea that the defendant simply did not understand their conduct due to the intoxication. Rather, the intoxication must have made the defendant incapable of understanding their own conduct. There are a few doubts about the scope of Article 31(1)(b), for example with regard to the question whether the word conduct also covers the significant contextual elements. It would be hard to envision that the International Criminal Court could acquit persons with reference to Article 31(1)(b). In common law States, intoxication can only be a defence with respect to some crimes. Voluntary intoxication usually does not amount to a defence in such cases.

Defence of oneself, another person and of property

It is entirely uncontroversial that persons are entitled to defend themselves. Self-defence is one of the most important justifications of conduct. In Kordić and Čerkez, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia uncontroversially observed that self-defence is a defence in customary international criminal law. It also asserted that the definition of self-defence found in Article 31(1)(c) of the Rome Statute of the International Criminal Court mirrors customary international law. This Article states that a defendant must be acquitted if they acted rationally to protect themselves or a second person or, with regard to war crimes, property. This property must be either crucial to the survival of the defendant or a second person, or crucial to the success of a mission of armed forces. The self-defence must be against an approaching and illegal use of force and be proportional to the level of danger to the defendant or the second person or property in question. If a defendant was engaged in a defensive military operation, then that shall not automatically lead to an acquittal on the basis of self-defence.

Of course, self-defence in this context must not be conflated with self-defence as conducted by States per Article 51 of the United Nations Charter. Also, this defence can only be used with respect to an approaching and illegal use of force. It is not entirely clear what the notion of an approaching attack entails, but it is not necessary that the defendant wait for the assailant to strike first. There are some doubts as to whether defence is permitted against those who are protected by Article 31, for example by their insanity. But the better view is that this is indeed permitted. During the Rome Conference, it was more controversial whether defence of property crucial to a military mission should become a ground for acquittal. Indeed, it has been suggested that its inclusion in the Rome Statute of the International Criminal Court evidently was not within lex lata. While such suggestions may be exaggerating, it can still be admitted that fears that this provision might become abused are legitimate.

It is also important to note that not any response to an attack falls under Article 31(1)(c). For this Article to apply it must be reasonable to use force, and the degree of that force must be proportional to the level of peril. Although judges should be conscious about the benefit of hindsight when ascertaining proportionality, multiple factors have to be taken into account. Examples include the questions whether the attacker possessed any weapon, and the character of the weapon used by the defendant. The proportionality must be determined in an objective way; the perspective of the defendant is not decisive here. Article 31(1)(c) suggests that the defendant must intend the self-defence.

Necessity and duress

Where international Crimes are committed, a multitude of persons is usually involved and there tends to be some degree of coercion between those involved. The defences of duress and necessity are undoubtedly controversial. Article 31(1)(d) of the Rome Statute of the International Criminal Court discusses them together. It is the first international codification of duress and necessity as defences. The Article stipulates that persons must be acquitted when the conduct underlying the crime was produced by duress that resulted from a risk of approaching death or of enduring or approaching severe bodily injury against the defendant or another person. Further, the defendant must have acted by necessity and rationally to circumvent this risk. The defendant may not have intended to produce a larger harm than the one that the defendant tried to circumvent. The risk may either have been made by other people or may have been formed by a context beyond the defendant's control. The defence of duress has been used at the International Military Tribunal at Nuremberg, where it constituted a test for superior orders. Several cases under Control Council Law No. 10 involved the defences of duress or necessity. In Erdemović, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia held that there existed a defence of duress in international criminal law, but that it could not be used where innocent people had been killed. However, this conclusion was controversial. The decision was not included in the Rome Statute of the International Criminal Court.

Thus it is required that there be a risk of approaching death or of enduring or approaching serious bodily injury. Blackmail, for example, is clearly excluded. The risks must be very grave. Also, the risk must be of an approaching danger. It is not at all clear that this is the same requirement as in Article 31(1)(c). The risk must exist objectively, and may be against the defendant or another person. It is not necessary that there exist any relationship between the defendant and the other person threatened. The risk must be outside the control of the accused.

If there is only pressure, this cannot defend any conduct. Rather, the conduct in question must have been both required and rational in the context to circumvent the risk. The logic here is similar to that used in the question of proportionality in the defence of self-defence. Also covered is the issue of whether a rational person would have reacted to the risk. It can be asked what may be demanded of soldiers, who are trained to defend others by facing harm themselves. Here, it might be better to reformulate the logic to what would be deemed needed and rational by someone with the position and experience of the accused.

Article 31(1)(d) explicitly demands that the risk caused the conduct. The defendant will not be able to use the defence of necessity or duress if they acted as they would have done in any case. It is not clear from Article 31(1)(d) whether the threat must have been the only cause of the conduct or whether there may have been multiple causes. This also implies that the International Criminal Court is not obliged to require that the threat was the only cause of the defendant's conduct.

The mens rea of necessity and duress can also be specified. It is clear from Article 31(1)(d) that the defendant seeking to make use of this defence must have intended to achieve the lesser of two evils. It is ambiguous whether the Rome Statute obliges the International Criminal Court to differentiate between the actions performed to circumvent the harm and the consequences of those actions. However, if there is such a differentiation, then unwilled and disproportionate consequences of the needed and rational conduct are not to be considered. If there is no differentiation between actions and consequences, then both must be needed and rational.

Mistake of law and mistake of fact

Mistakes of law and fact are often treated differently between civil law systems and common law systems. The latter tend to be less charitable with respect to mistakes of law. They often permit defences when there have been made considerable mistakes with respect to multiple aspects of crimes or defences. Traditionally, common law systems have only permitted mistakes to ground an excuse when they debase the mental element. Article 32 of the Rome Statute of the International Criminal Court seems to follow the common law strategy. Article 32(1) stipulates that mistakes of fact can only serve as a basis for omitting responsibility if they negate the mens rea demanded by the crime. Article 32(2) states that mistakes of law cannot serve as a ground to omit responsibility. Nevertheless, mistakes of law can serve as a ground to omit responsibility if it negates the mens rea demanded by a crime.

Thus, it is clear that before the International Criminal Court mistakes of fact are only significantly in terms of liability if they indicate that the accused did not have the required mental element. An example may be a situation in which a person attacks a civilian bunker thinking that it is an armed forces command centre. Article 32(1) notably does not explicitly demand that the mistake be reasonable. However, the defendant must prove that they were genuinely mistaken. Practically, the less rational an assumption or thought is, the smaller the chance that this defence will succeed. It appears that genuine mistakes of fact that would ground a defence are not covered by Article 32, because they are not linked to the mental element. Moreover, Article 28 of the Rome Statute concerning command responsibility disregards mistakes of fact where the superior should have been aware of the important facts.

As with mistakes of fact, mistakes of law can generally only apply when they negate the mental element. This defence excludes pleas regarding mistakes or lack of knowledge about whether or not particular acts or omissions are criminalised by the Rome Statute of the International Criminal Court, or whether there is a defence in law. Mistakes of law neither cover errors about the scope of defences. Rather, the sole permissible mistake under Article 32(2) is where an element of an offence demands a legal analysis, and the mistake is linked to this. An example is a situation in which a person seizes property mistakenly believing that they are the owner of the property. With reference to the discretion apparent in Article 32(2), it has been suggested that mistakes of law do not oblige the International Criminal Court to acquit someone.

Superior orders

Defences based on the argument of superior orders have existed for a long time and show a fundamental unease between the significance of international legal principles on the one hand and military principles on the other. Traditionally, it was acknowledged that orders added up to a defence for those who performed them. Therefore, only the person who ordered incurred liability. However, a complete superior orders defence (respondeat superior) was not evidently and entirely accepted. Around the First World War it become replaced by the doctrine that a superior orders defence could only apply where the orders were evidently illegal. Later, the International Military Tribunal at Nuremberg changed this doctrine by asserting that superior orders did not influence the question of liability, but could be used in the determination of punishment. The International Military Tribunal further stated that the actual test in this context is not the presence or otherwise of the orders, but whether it was possible to make a moral choice. Following this Judgement and United Nations General Assembly Resolution 95(I) it could have been suggested that superior orders could no longer amount to a defence in international criminal law. Nonetheless, the case law of the International Criminal Tribunal for the former Yugoslavia on this question has been quite ambiguous. Also, the four Geneva Conventions of 1949 and the Genocide Convention state nothing on the question of superior orders as a defence. However, the Rome Statute of the International Criminal Court in Article 33 uses the test of evident illegality. Irrespectively of whether the superior orders defence applies, the person who ordered the crimes to be perpetrated can nonetheless be found liable. Article 33 includes three requirements that all have to be fulfilled for a superior orders defence to apply. These three conditions are the following. Firstly, the person seeking the defence must have been legally obliged to follow orders of the superior or government in question. Secondly, the person was unaware that the order was illegal. Thirdly, the order was not evidently illegal. Article 33(2) states that for the purpose of that Article orders to perpetrate crimes against humanity or genocide are evidently illegal.

Thus, one of the requirements for a superior orders defence under the Rome Statute of the International Criminal Court is that the person following the orders must have a legal obligation thereto under municipal law. This goes for members of the military in all States. Things may differ for civilians per State. It has been submitted that that there must be a relationship between an ordering superior and an obeying subordinate. This is only the case to the extent that the defendant must legally follow orders. This demand is especially interesting in the context of orders issued by rebel superiors. Because there must a legal obligation, it would appear that such orders cannot lead to a defence of superior orders.

As suggested by Article 32(2), the character of the superior orders defence is an extended kind of a mistake of law defence. Thus, when someone is aware that an order is illegal, a superior orders defence cannot be used. This negates one suggested subordinates' dilemma, between the risk of being held criminally responsible and between facing discipline for disobedience. But it can be hard to ascertain what the defendant knew regarding the legality or otherwise of the order.

Nevertheless, unawareness of the illegality of the order per se is insufficient. It is also required that that unawareness be pardonable. Put differently, the subordinate may not be at fault in their unawareness about the illegality of the order. This is the rationale behind the manifest illegality requirement of Article 33. Thus, if orders are manifestly unlawful then a defence of superior orders is not permissible. However, not everyone can be expected to have immediate access to the rules of international criminal law, and there have been multiple attempts to define manifest illegality. It is still unclear to whom the illegality of the order must be manifest. For instance, it can be imagined that there are different standards for highly trained and experienced soldiers than for low-ranking soldiers. Determinations of manifest illegality could also be made on the basis of what can be considered common knowledge.

Article 33(2) was designed to make sure that the defence of superior orders cannot be pleaded in trials involving crimes against humanity or genocide. However, it is not ideal that it focuses on orders thereto instead of on the mental element of the perpetrator. Unfortunately it also implies that aggression or war crimes are less grave than crimes against humanity.

The presence of superior orders may lead to other defences, especially duress and mistake of fact. If the order includes a factual error, for example providing wrong coordinates for bombings, then this may give rise to a mistake of fact defence instead of a superior orders defence. There may also be duress when the orders are accompanied by threats to life or limb. In such cases, duress may be pleaded and the defence of superior orders becomes irrelevant.

Additional defences

As already mentioned, Article 31(3) of the Rome Statute of the International Criminal Court permits the application of defences not covered by the Rome Statute if and only if such defences are grounded in other applicable law. The three most important of such defences are reprisals, military necessity and consent. The first two are less accepted than consent. Consent is likely to be used especially in trials involving sexual crimes. In fact, the lack of consent is expressly included in the definitions of some international crimes. Any claims of consent must be thoroughly analysed, because the circumstances of international crimes are frequently coercive. The International Criminal Tribunal for the former Yugoslavia has been distrustful of claims of consent in contexts of international crimes, especially with regard to sexual crimes. The Appeals Chamber in Kunarac held that the contexts of most crimes against humanity or war crimes are virtually always coercive. In other words, genuine consent is impossible. The International Criminal Tribunal for Rwanda has held that non-consent can be deduced from background circumstances. It need not be proven that the defendant was unaware of the absence of consent. Rather, there must be proof that the defendant knew or had reason to know of the coercive context that weakened the possibility of true consent. The Elements of Crimes of the International Criminal Court includes an extensive list of circumstances in which the possibility of consent is limited. Because evidence (dis)proving consent can be very sensitive, the International Criminal Court has a particular regime that establishes when and in what ways the Court hears such evidence. The International Criminal Court has rejected a plea of consent relating to the count of the use of child soldiers.

Reprisals are reactions to breaches of international humanitarian law that would in any other situation constitute a violation of that law themselves. They are an indelicate and risky kind of law enforcement, but are still licit in some contexts, provided that certain strict demands are met. These have been defined by the International Criminal Tribunal for the former Yugoslavia as follows. The conduct in question must be a last resort in efforts to ensure that the adversary sticks to the law. This in itself involves a number of additional legal requirements. For a successful plea of reprisal, the defendant's conduct must have been in accordance with the obligation to take particular precautions before implementing the reprisal. This means that the reprisal must have been decided on by the highest military or political leaders. The principle of proportionality must be respected, as well as basic considerations of humanity. Reprisals may not be taken against persons in occupied territories, the sick, shipwrecked and wounded, prisoners of war or detained civilians. Additional Protocol I also forbids reprisals against civilians and cultural property, but it is less certain whether these provisions are also upheld by customary international law.

If military necessity was ever a general defence in international criminal law, then it has ceased to be. Military necessity can only be used as a specific defence when particular provisions explicitly allow it. An example is Article 8(2)(a)(iv) of the Rome Statute of the International Criminal Court. Although it is hard to theoretically define military necessity, it is evident that military advantage or political requisiteness are not in themselves sufficient.

Rules pertaining to investigations and prosecutions in international criminal law - Chapter 17

 

Preliminary remarks

Since the post-Second World War trials at Nuremberg it has been recognised that there is a need for a novel set of procedural rules for any international criminal court. This system would inevitably incorporate procedural elements from municipal systems, but simultaneously also be distanced from any single municipal system or legal doctrine. This chapter focuses on the procedures of the International Criminal Tribunals for Rwanda and the former Yugoslavia and the International Criminal Court.

There is an important differentiation to be made between civil law systems and common law systems in terms of procedures. It is often said that common law systems are accusatory, while civil law systems are more inquisitive. However, no domestic system belongs exclusively to either of these labels. There are also significant differences within the two traditions. The most important contrast between the procedural systems of civil law and common law systems is the role of the judges and the parties. The accusatory or adversarial system presupposes two antagonistic parties that each do their own investigations. Here, the judge is traditionally a sort of referee, focusing on ruling on procedural controversies raised by the parties. Here jury trials are suitable. However, inquisitive systems require that State organisations perform objective investigations and prosecutions. Fundamentally, only a single case is brought to the court. The interests of the accused are respected during the investigation and there exists judicial oversight. The police is directed by this examining judge and the prosecution. One dossier is compiled for the whole trial. The trial judge, who is not the examining judge, can read this dossier. The judge has a relatively industrious role, with the express duty to find the truth. All of these contrasts have resulted in different procedures.

It could be considered best if international criminal law were to combine elements from different procedural models, in order to establish a coherent whole. However, mixing these contrasting models can be problematic. Indeed, inquisitive and accusatory models can be incompatible with each other. Moreover, political interests often lead to compromises in the form of rules that have not been applied in practice, are too lenient or otherwise not ideal. In addition to the necessity of creating general acceptance of procedural rules, there are more grounds for seeking a blended model. Antagonistic rules are often appealing for the fair trial rights of the defendant, as stipulated in international human rights provisions. However, it can be very hard or even impossible for a defendant to perform their own investigations where the collaboration of States is essential. Also, if the goal of international criminal law to establish a veritable historical account is emphasised, then the emphasis on objective truth-seeking of inquisitorial systems can be attractive.

Particular procedural were established for the International Military Tribunals at Nuremberg and for the Far East. In their Charters were included essential clauses on inter alia the mandates of each Tribunal, sentences and several fair trial standards. Furthermore, the Charters of these Tribunals stipulated that Rules of Procedures be created. These procedures were based in part on municipal maxims, specifically those from the United States of America and the United Kingdom. Some adversarial characteristics included the right of the accused to an elaborate indictment, to do their own defence or to have a lawyer, and to bring evidence to the Tribunal. It were the parties who questioned the witnesses. Nevertheless, the trial before the International Military Tribunal at Nuremberg had some inquisitorial features as well. Among these were the possibility to have trials in absentia, the right of accused to speak out for themselves and lenient provisions on the admissibility of proof. For their time the procedures were largely fair, but this would not be the case today. The trials conducted under the Control Council Law No. 10 in Germany had procedures created by the commanders of the various occupied zones.

The Statutes of the two ad hoc Tribunals only have a few essential procedural clauses. Later elaborations on them in the Rules of Procedure and Evidence was up to the judges. Their task was to make rules that were broadly acknowledged as just and fair by the international community. In the case of the International Criminal Tribunal for the former Yugoslavia, the Rules of Procedure and Evidence were largely antagonistic rather than inquisitorial. They have been altered often, which has resulted in questions about legal fairness and certainty. Many amendments have made the Rules of Procedure and Evidence more inquisitorial.

The draft statute of the International Criminal Court produced by the International Law Commission is essentially antagonistic in nature. However, negotiations on the statute led to an increase in inquisitorial rules of procedure. Many attempts were made to reconcile the antagonistic and inquisitorial models, which has led inter alia to the establishment of the Pre-Trial Chambers. Unlike at the ad hoc Tribunals, in the case of the International Criminal Court the negotiating States decided to establish the Rules of Procedure and Evidence themselves. Nonetheless, the judges of the International Criminal Court were mandated to create Regulations of the Court. These also govern procedural issues.

The connections between international and municipal procedures in criminal law is complicated. The two ad hoc Tribunals and the International Criminal Court all combine elements from the inquisitorial and antagonistic traditions. To some degree, the traditional gap between the civil law and common law systems has been bridged. Nevertheless, the procedures are still mainly antagonistic in character. Each of the procedural models of the different international criminal tribunals and courts can be seen as unique. However, there are also uncertainties about their departures from the matured municipal systems. At the same time it cannot be the case that municipal legal doctrines and notions are simply imported into international trials without careful attention to how they would contribute to the aims of international trials. Moreover, there are so many different municipal procedures that it is frequently hard to assert that any particular procedural rule is part of custom. International criminal tribunals and courts often lack the resources and time to do enough research into this. The procedural models specific to the ad hoc Tribunals and the International Criminal Court were especially designed for being used in international trials, and such rules would not always work equally well on a municipal level.

Human rights in the context of international criminal trials

Of course, it should be assumed that international criminal proceedings respect internationally acknowledged human rights norms. This is a matter of principle. In addition, however, adhering to the rights of the accused is needed for permitting an international institution to conduct trials. This is because the principle of State sovereignty would otherwise place trials exclusively in the hands of domestic authorities. Moreover, States are bound to various human rights obligations, and therefore adherence to them can facilitate State collaboration with international criminal tribunals and courts. At the same time it should be borne in mind that international criminal tribunals and courts cannot be parties to international human rights treaties or jurisprudence. Therefore they are not formally bound by them. A few human rights principles have been included directly in the Statutes and rules of procedure and evidence of the various international criminal tribunals and courts. The two ad hoc Tribunals have often referred to international human rights jurisprudence and treaties. They have not, however, always rigidly adhered to such standards. This has been justified by the sui generis organisation, position and subject matter of the two ad hoc Tribunals. The Rome Statute of the International Criminal Court is quite different in this regard. It contains provisions mirroring human rights norms and stipulates that the Court must follow relevant treaties and international legal rules and principles as legal sources. Further, the Rome Statute states that the Court must adhere to internationally acknowledged human rights when it interprets and applies laws. The International Criminal Court has received praise for its attention to international human rights standards. However, it has also been criticised for its hesitancy to monitor domestic law and practice.

Neutral and independent courts and tribunals are needed for the application of human rights treaties. This is a general legal principle that is acknowledged by all legal traditions. It is also to ensure that the defendant's entitlement to a fair trial is respected. Independence demands an operational and institutional disconnection between the legislative and executive parts of governments and from the parties to a trial. One difficulty is that international criminal tribunals and courts necessarily rely on collaboration by States. An unfortunate example is when Rwanda temporarily ceased collaborating with the International Criminal Tribunal for Rwanda. In addition, for a court or tribunal to be neutral the judges must also be neutral on an institutional and personal level. There have been doubts regarding the impartiality of the two ad hoc Tribunals, because they were created by the United Nations Security Council. However, municipal trials are also dependent on the legislative and executive parts of government, for example in terms of their budget. These arrangements in themselves do not necessarily undermine independence. Indeed, the ad hoc Tribunals can be deemed independent from the United Nations Security Council insofar as the latter cannot intervene in specific trials. The ad hoc Tribunals have also dealt with the question of the legality of their establishment themselves. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Furundžija created norms for the evaluation of impartiality and bias. In the relatively complete Rome Statute of the International Criminal Court there are express provisions on the neutrality and independence of the judges and (Deputy) Prosecutor. The Rome Statute also contains provisions on the entitlements of the defendant to a fair and impartial trial. The connections between the International Criminal Court and the United Nations Security Council are fundamentally legal. Nevertheless, there are also fears concerning the power of the United Nations Security Council to ask for a deferral of a trial or investigation. One way in which the International Criminal Court aims to guarantee its impartiality is in the fact that the terms of the prosecutors and judges cannot be renewed. The institutional and considerable legal autonomy of the Prosecutor of the International Criminal Court are antagonistic features. However, the neutrality enshrined in the Rome Statute is largely inquisitorial.

It is a cardinal principle of human rights norms and of many constitutions that the defendant must be assumed to be innocent until legally proven guilty. International human rights treaties as well as the Statutes of the ad hoc Tribunals restrict this principle to those who have been accused. However, a generally held view is that this principle should also apply during investigations. In fact, the Rome Statute of the International Criminal Court presumes that everyone is innocent until proven guilty. Although this provision is is included in the part of the Rome Statute discussing trials, it might be read as applying generally. The presumption of innocence should also be borne in mind when deciding who is considered a victim for the purpose of victim engagement in the trial. The presumption of innocence entails many things, for example the right to stay silent and the right not to admit guilt. As with the presumption of innocence, these rights apply to the accused at the ad hoc Tribunals and at the International Criminal Court to everyone. If an accused does not express their opinion regarding their innocence or guilt, this must be considered as not admitting guilt. The prosecution has the duty to prove the guilt of the accused. Where there is doubt about whether the prosecution has done this, the accused must be found innocent. This is the meaning of the principle in dubio pro reo. In antagonistic models, guilt must be proven beyond a reasonable doubt. In inquisitorial systems the guilt must be the judge's innermost belief. The former standard is used by the two ad hoc Tribunals as well as the International Criminal Court. However, the obligation to produce a defence is the accused's. The accused must solely present evidence that indicates a reasonable possibility that the accused is not guilty. The accused has the right to not have enforced on them any reversion of the onus of proof.

Another important principle is that hearings are generally public. If hearings are public they can be examined by anyone, which facilitates fair and just proceedings. The principle of public hearings is adhered to by the ad hoc Tribunals and the International Criminal Court. The Statutes of these institutions also stipulate that judgements must be delivered publicly. Nevertheless, their Rules of Procedure and Evidence also provide for several exceptions. For the ad hoc Tribunals, closed sessions are permitted in the interest of safety, security or non-exposure of the identity of certain witnesses or victims, public morality or order, and justice. The Rome Statute of the International Criminal Court includes two cases in which closed sessions are allowed: when sensitive or confidential proof must be shielded, or when witnesses, accused or victims must be protected. It has been suggested that these provisions should be viewed in rigid accordance with human rights principles.

Stipulating that trials must be fair is a crucial aim for any procedures governing criminal trials. Indeed, the principle of fair trials is acknowledged as a general one of international law. Nonetheless, it can be viewed in different ways. Thus, the fact that standards pertaining to fair trials are worded in rather broad terms means that they can be and are enforced in different ways municipally. One important aspect of fair trials is the principle of equality of arms. This is not the same as non-discrimination or the equality principle. The principle of equality of arms is more important in antagonistic trials. It demands chances for each party to organise their and bring forward their cases with regard to the facts and the law, and to react to the arguments of the other party. It must be guaranteed that none of the parties is disadvantaged when bringing forward their case. However, the principle of equality of arms is less important regarding preparations. Here, the focus is on making sure that the defence does not have a significant disadvantage with respect to the preparations of the Prosecution. Nevertheless, this does not suggest exact equality of resources among the parties. The International Criminal Court could adopt a resembling approach, but there have been taken steps to avoid situations in which one party has more resources than another.

In addition to some equality of resources, the principle of equality of arms also covers the defendant's entitlements to swift and elaborate information concerning the charges, to access to the proof of the Prosecution, to a lawyer, to scrutinise testifiers against the defendant, and to call testifiers in equal circumstances. In the case of the ad hoc Tribunals, this last entitlement has been viewed as entailing a positive task for the Tribunals to help the defendant with measures needed for acquiring the testimony. Furthermore, the Statutes of the two ad hoc Tribunals and the International Criminal Court entitle the defendant to be prosecuted without undue postponements. This principle is also enshrined in major human rights treaties. The ad hoc Tribunals and already the International Criminal Court have been challenged for having too long trials. The International Criminal Tribunals for the former Yugoslavia and Rwanda have reacted by adjusting their rules and practice, but a majority of cases remains very lengthy. Factors that help explain the length of these trials are a shortage of resources and the political, legal and factual complexity of international trials and investigations.

Organs of international criminal trials

The organs of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court are all ordered in comparable ways. Their mandates are defined in their respective Statutes and Rules of Procedure and Evidence.

The function of the judges at the ad hoc Tribunals has been inspired by the antagonistic model of proceedings. Thus they function as referees or arbiters. However, their position becomes more industrious with respect to certain provisions. For instance, they can require the parties to submit more evidence or to bring forward a testifier. Gradually, the judges have generally become more industrious in supervising all parts of the proceedings instead of only the trial. An example here is the establishment of pre-trial judges at the International Criminal Tribunal for the former Yugoslavia.

When compared to the judges of the ad hoc Tribunals, those of the International Criminal Court are more active. They are involved in preparations and the presentation of evidence. Beyond that, however, the part of judges is restrained. Judges thus participate relatively early by guaranteeing the entitlements of the suspect or accused and defending other interests, including those of States or victims. In the earliest cases before the International Criminal Court, the judges and prosecution have been at unease with each other.

In line with antagonistic models, international prosecutors have relatively much autonomy. Still, there are different levels of judicial control. Judicial control is larger in the International Criminal Court than in the International Criminal Tribunals for the former Yugoslavia and Rwanda. One very important difference between the International Criminal Court and the ad hoc Tribunals is in the degree of the mandate of their respective Prosecutors in terms of temporal and geographical jurisdiction. Every Prosecutor determines the start (or otherwise) of investigations, the ways in which the investigations take place and any trial of a crime. The burden of proof is with the Prosecutor. Nevertheless, the confines of investigation responsibilities are different. The responsibility of the Prosecutor to act in the interest of the public in trying those who have committed crimes is moderated at the International Criminal Court by the simultaneous task to seek the truth. The Prosecutor of an international criminal tribunal or court has a very multidimensional and therefore complex role to play.

Another actor in (international) criminal proceedings is the defendant, and their counsel. Before the ad hoc Tribunals, a person is a suspect only before the issuance of an indictment. Before that, and on the basis of trustworthy information in the hands of the Prosecutor, it is deemed that the suspect may have perpetrated a crime that falls in the jurisdiction of the Tribunal. After the indictment is issued, the person is no longer a suspect but rather an accused. The Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court do not employ the word suspect. An accused is a person against whom counts have been asserted. The Statutes of the ad hoc Tribunals and the International Criminal Court as well as the respective Rules of Procedure and Evidence include some essential entitlements for persons who are suspected or accused of having perpetrated a crime. They include the right to remain silent, to legal aid at the time of questioning and interpretation. Accused persons have more rights than suspects, including particular human rights. The antagonistic character of proceedings before the ad hoc Tribunals assumes that the accused may present their own case. This demands a distinct investigation by the defendant. In Tadić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia emphasised the significance of equality of arms and explained that this principle should not be viewed very rigidly because of the hardships in collecting evidence. In this context, the help of a defence counsel is especially needed. Virtually all accused before the ad hoc Tribunals were or are helped by lawyers, usually chosen and renumerated by the respective Tribunal. Nevertheless, two political protagonists who were accused before the International Criminal Tribunal for the former Yugoslavia requested to defend themselves without counsel. This has stressed the question whether such help may be assigned to the accused against their will. The International Criminal Tribunal for the former Yugoslavia has ultimately held that the right to represent oneself is not unlimited, and has indeed assigned counsel against the will of the accused. However, a few years ago the Tribunal did permit the accused to represent themselves, although later imposed counsel to one of them. Likewise, the International Criminal Court acknowledges the entitlement of the accused or suspect to select their own counsel, if needed without costs.

Especially at the International Criminal Court, victims are granted a relatively significant role. This covers an autonomous entitlement to engage in the proceedings and to seek reparations. Victims are also brought forward as witnesses before the International Criminal Court and the ad hoc Tribunals. However, expert witnesses are not victims. The inquisitorial and antagonistic models tend to interpret witnesses' roles in varying ways. The ad hoc Tribunals lean towards the adversarial model, in which mainly the parties are responsible for proof. All parties can bring forward witnesses. These are thus either defence witnesses or prosecution witnesses. One inquisitorial aspect is that judges may also call witnesses or require their presence. Sometimes these are named court witnesses. The International Criminal Court has resembling provisions. The accused can testify as well, but solely as part of their defence. A witness who testifies under oath must tell the truth. If they do not, they are criminally liable. Witnesses have some privileges. Before the ad hoc Tribunals and the International Criminal Court witnesses and victims are well-protected.

The last category of actors in the context of international criminal proceedings, finally, includes inter alia States and international organisations. Decisions of international courts invariably have a bearing on the interests of States. Thus, States have some ways of interfering in proceedings. For example, before the International Criminal Tribunal for the former Yugoslavia States that are immediately influenced by decisions are entitled to ask for a review. This entitlement has been applied in the context of, for instance, a State asking for documents and calls for arrest and capitulation. The International Criminal Tribunals for the former Yugoslavia and Rwanda have special connections to the United Nations Security Council because they were created by it. The Tribunals send reports to the United Nations Security Council, but the latter is not permitted to interfere in the former. The ad hoc Tribunals have several times issued binding instructions to other international organisations. However, the Tribunals have also observed that such organisations are not technically forced to collaborate. International organisations can also ask for reviews. The International Committee for the Red Cross has particular privileges. States have more influence before the International Criminal Court. This is partly because of the principle of complementarity, explained above. The United Nations Security Council as well as individual States can ask for a review of a decision by the Prosecutor not to try or investigate. Some decisions by the International Criminal Court may be appealed by influenced States. In addition, States can ask for a decision on the (il)legality of a demand for collaboration and interfere in procedures concerning non-collaboration. The International Criminal Court as well as the ad hoc Tribunals can permit States, persons and organisations to file amicus curiae submissions.

Jurisdictional issues and procedures concerning the admissibility of a case

The ad hoc Tribunals have submitted that they can decide on the legality of their establishment. Contestations of the jurisdiction of one of the ad hoc Courts have been discussed as preliminary motions and bear an entitlement to appeal before the final decision. The procedures for deciding on jurisdiction and admissibility were a significant part of the negotiations on the Rome Statute of the International Criminal Court. Importantly, the International Criminal Court must decide itself that it possesses jurisdiction and it can additionally ascertain the admissibility or otherwise of a case. Such issues are not important in all steps of the proceedings. The discretion to use the proprio motu card has been exercised repeatedly, including in situations when there were indications that domestic authorities were willing to prosecute. Except when the United Nations Security Council has brought a situation to the International Criminal Court, the Prosecutor must communicate to all States with jurisdiction when an investigation has been started. The aim of this is that these States may ask for the investigation to be deferred while domestic proceedings are under way. The jurisdiction or admissibility of a case may be questioned before the trial begins at the International Criminal Court, and sometimes after this point. Three actors are entitled to challenge the jurisdiction or admissibility. These are: accused, indicted or summoned persons; States with jurisdiction, in which investigations or a trial over the same crime has begun; and any State that has to acknowledge jurisdiction. There are regulations to manage these challenges and the possibility to raise them. The Prosecutor may ask for a review of a declaration that a case is not admissible. It is not yet clear who has to prove whether a State is (un)willing or (un)able to prosecute.

Beginnings and endings of investigations

The ad hoc Tribunals have lucidly defined powers concerning their substantive, personal, temporal and territorial jurisdiction. Within these restraints, the Prosecutor begins investigations by right of office. The Prosecutor can also, building on any information, evaluate that information and determine whether there is an adequate reason to continue. The Prosecutor does not need permission from the judges in deciding whether or not to begin an investigation. This situation means that the Prosecutor does not have the duty to always begin investigations where the jurisdictional requirements are satisfied. Both ad hoc Tribunals started their existence prosecuting low-ranking perpetrators, but later switched to focusing on higher-level perpetrators.

It is more complicated to begin an investigation at the International Criminal Court. This is partly because the International Criminal Court has, in potential, worldwide jurisdiction, but can only prosecute a limited number of cases. In addition to getting a case through one of the trigger mechanisms, the Prosecutor must establish whether an investigation can be begun according to the following requirements: a reasonable suggestion that a crime is under the jurisdiction of the International Criminal Court, the admissibility of the trial with respect to the maxim of complementarity and the demand of adequate seriousness, and an evaluation of whether a trial would serve justice. Thus, before the investigation can be commenced information must be collected and analyses made. When a situation is referred to the Court, the Prosecutor can decide without judicial influence whether or not to begin an investigation. However, if the Prosecutor decides not to investigate then that decision may be reviewed by a Pre-Trial Chamber. If a situation has not been referred, the investigation must be approved by a Pre-Trial Chamber anyway. It has been suggested that this system does still not provide for enough checks and balances. The Rome Statute of the International Criminal Court indicates that there is a positive duty to commence investigations, in practice there is much discretion. This means that the International Criminal Court can focus its approaches and resources. However, the exercise of prosecutorial discretion is inevitably subject to criticism. Especially the requirement that an investigation be in the interests of justice is complicated and ill-defined. However, given the suggestion of a positive duty to prosecute the requirement of interests of justice should not often be a stumbling block.

Criminal investigations

The Prosecutor heads investigations, at the International Criminal Tribunals for the former Yugoslavia and Rwanda as well as at the International Criminal Court. Inter alia lawyers, analysts and investigators are involved in the investigations. All Prosecutors generally are mandated to take needed steps during the investigations. At the International Criminal Court but not at the ad hoc Tribunals, there are Pre-Trial Chambers, which are engage with the investigations. They can take steps to enhance the success and integrity of the proceedings and defend the entitlements of the accused. The Prosecutors of the ad hoc Tribunals are not obliged to gather exonerating evidence. However, the Prosecutor of the International Criminal Court is required to investigate both incriminating and exonerating proof. It has been suggested that if the Prosecutor acts on this principle of objectivity, then the scope, including the number of counts and maybe the length, of the trial will be reduced. Also, the conventional division between the prosecution arguments and defence arguments could be made smaller.

Investigations involve gathering material and questioning persons, including inter alia victims, suspects, testifiers and experts. Sometimes forensic steps need to be taken, for example exhuming mass graves. Because there is no such thing as a worldwide police force, successful investigations rely for a large part on the willingness of States and other entities to collaborate. The Prosecutor can ask for their collaboration. However, one of the Chambers can do this as well, in the form of warrants and orders. The investigators belonging to the International Criminal Court conduct as many parts of the investigation as possible. This is with the aim of guaranteeing certain rights as well as the collaboration and confidence of testifiers and victims. The Prosecutors of the ad hoc Tribunals have by their respective Statutes the entitlement to do investigations on the crime scenes. However, the right of the Prosecutor of the International Criminal Court to do this is restrained by particular circumstances. The Prosecutor may only exercise this right in non-coercive ways. Nevertheless, the Prosecutor may in exceptional cases with the authorisation of a Pre-Trial Chamber also investigate on the territory of a State without that State's approval. This demands the partial or entire disintegration of the particular State.

Suspects who are questioned are entitled to receive particular information, to remain silent and have legal aid and translation. These International Criminal Court provisions also apply when domestic authorities are questioning persons for the Court. Furthermore, the Rome Statute of the International Criminal Court grants some essential rights to persons, regarding for example duress and intimidation, self-incrimination, coercion and the taking away of freedom. These provisions mirror universally recognised human rights standards.

Up to now, the International Criminal Court has begin investigations concerning complete situations rather than just cases. This means that officially the focus of the investigations is very wide. However, in reality they are much more focused and narrower. After an investigation into the situation come cases, but it is not entirely clear when this point arrives. Nevertheless, it has been suggested that there are cases when arrest warrants or summons are issued. Decisively answering the question when cases arrive is essential for issues of admissibility, also with respect to the complementarity principle.

Forcible steps

Forcible measures must be possible in the context of all criminal investigations and other stages of proceedings. Because of the connections between international criminal tribunals and courts on the one hand and domestic authorities on the other it is necessary for international prosecutors to seek the collaboration of States, or additional organs such as peacekeeping units. According to the Rome Statute of the International Criminal Court, the Prosecutor may only take non-forcible on-site steps. An exception is where Pre-Trial Chambers may authorise forcible measures in the context of a (partially) disintegrated State. The mandates of the Prosecutors of the ad hoc Tribunals to investigate on-site are phrased more generally. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia decided in Blaškić that the Prosecutor may take forcible steps immediately on a State's territory if empowered by domestic laws or a particular agreement. In municipal systems, forcible steps that affect the entitlements and liberty of persons are broadly reviewed by judges. This can happen before or after the step is taken. The Chambers of the ad hoc Tribunals and the International Criminal Court are expressly mandated to confirm orders and warrants, including forcible steps. The ad hoc Tribunals have investigated on-site without the facilitation of domestic authorities. It is controversial whether or not international warrants can or should be confirmed when linked to a request for collaboration. Evidence brought before the International Criminal Court that offends the Rome Statute or internationally acknowledged human rights can be announced inadmissible.

Dispossession or limitation of freedom affects the essential entitlements of the person in question. Simultaneously, however, it is crucial for the successful functioning of international criminal tribunals and courts. Thus there are multiple regulations in place governing this issue. In the case of the ad hoc Tribunals, a judge must first approve an indictment partially or entirely before the warrant can be issued. The warrant with the indictment must contain an overview of the entitlements of the accused. Copies must be sent to States for the carrying out of the warrant and indictment. On the basis of the warrant the accused has to be arrested and delivered to the relevant Tribunal. In pressing situations the Prosecutor can ask States to arrest the accused in a provisory way with the warrant lacking. The ad hoc Tribunals have laws governing the accused's obligatory detention in their transferral to the relevant Tribunal. On the other side of this pre-trial rule are clauses on provisional release. Provisional release may be decided on by the Trial Chamber if it believes that the accused will return for their trial and would not constitute a threat to anyone. However, provisional release is based on discretion; the Trial Chamber is not obliged to release a person provisionally even if all the requirements have been met. The International Criminal Tribunal for the former Yugoslavia has released multiple suspects, but as of January 2010 the International Criminal Tribunal for Rwanda had not done so yet.

The Rome Statute of the International Criminal Court works in a quite different way in terms of arrests and releases. All demands for the arrest of a suspect have to be grounded in an arrest warrant confirmed by the Pre-Trial Chamber. There is a distinct procedure for issuing such warrants. They are separate from and usually come earlier than indictments. Before a warrant can be confirmed, certain requirements have to be fulfilled. For example, there must be a reasonable underpinning to hold that the individual in question has perpetrated a crime. There are more requirements concerning the possibility that the suspect would somehow hinder the investigation or other stages of the proceedings or would continue to perpetrate the same crime or another crime. These same criteria are relevant when the International Criminal Court chooses to (not) provisionally release a person. Rather than the ad hoc Tribunals the International Criminal Court may also confirm a summons to come to the Court instead of through a warrant. The requirements that have to be fulfilled to detain a person are stricter at the International Criminal Court than at the ad hoc Tribunals. Among the requirements for provisional release at the ad hoc Tribunals is no evaluation of the fortitude of the suspicion. Practically, the accused cannot question the legality of the arrest concerning the demand of a reasonable ground to believe that the accused has committed a crime.

Thus, some Trial Chambers at the International Criminal Tribunal for the former Yugoslavia have permitted a re-evaluation of the proof with the purpose of determining whether the suspect's detention is still legal. Contrarily, at the International Criminal Court the prosecution has to provide evidence even when the confirmation of the arrest warrant is being deliberated on. Moreover, the Pre-Trial Chamber of the International Criminal Court must periodically re-evaluate its decisions on detention or release. The Prosecutor has the continuous responsibility to indicate that the requirements for the arrest warrant continue to be satisfied. The detention may not last excessively long as a result of an unjustifiable delay by the Prosecutor. The first provisional release at the International Criminal Court was confirmed in Bemba Gombo. Unlike the Statutes of the ad hoc Tribunals, the Rome Statute of the International Criminal Court grant reparations to persons who have been wrongly arrested or found guilty. Granting such reparations is viewed differently by various municipal legal systems and international human rights documents.

None of the Statutes of the ad hoc Tribunals or of the International Criminal Court have express rules for challenges to the lawfulness of detention, that is found in common law systems in the doctrine of habeas corpus. However, the Appeals Chamber of the International Criminal Tribunal for Rwanda in Barayagwiza has held that a person in detention can only challenge the legality of their detention at a court. The Appeals Chamber considered that this view is supported by the Statute and Rules of Procedure and Evidence of the Tribunal as well as certain human rights documents. Challenges can also be made with respect to the entitlements to be swiftly informed about the grounds of the arrest. Such challenges have to be heard and decided on without postponements. If the violation of the entitlements of the accused is deemed severe and outrageous, according to the Appeals Chamber in Barayagwiza, there exists the option to reject the carrying out of jurisdiction and thus to terminate the case. However, this would be peculiar, and more moderate steps could be reparations upon acquittal or lessening the sentence.

The arrest engages both international and municipal jurisdictions. It is not clear to what extent the international tribunal or court should evaluate the lawfulness of municipal steps, nor what legal norms should be used in such an evaluation. Moreover, if abductions take place this may not only breach the entitlements of individual persons, but also those of States, and violate international law. There are different suggestions as to what such violations should entail for the continuation of the proceedings. When potential violations could be attributed to one of the ad hoc Tribunals, that Tribunal has also applied its own legal demands and human rights norms to domestic steps taken. The Tribunals cannot decide on the responsibility of any State for any violation, but can state whether or not the entitlements of an accused have been breached when such breaches were partly to be attributed to a State. Also, the International Criminal Tribunal for the former Yugoslavia has had to deal with these questions in proceedings in which the accused had been indicted on the basis of a sealed indictment and arrested with irregular acts by the prosecution. In Nikolić, the Appeals Chamber dealt with the question whether jurisdiction should not be exercised due to a breach of State sovereignty. It found that there must be a balance between human rights and sovereign rights on the one hand and the importance of trying the perpetrators of international crimes. In any case, a minor breach of an entitlement would not amount to a reason to decline jurisdiction. The Appeals Chamber suggested that abductions performed by private persons without interference from States or international organisations would not breach State sovereignty at all. The Rome Statute of the International Criminal Court has Articles specifically dealing with challenges and re-evaluations on a proprio motu base. Challenges may be made following the suspect's arrest but preceding the surrender to the International Criminal Court. The Appeals Chamber of the International Criminal Court has held that the principle of abuse of process applies, on the basis of universally acknowledged human rights standards. The International Criminal Court has also held that a provisional stay of the proceedings can be a fitting remedy when exonerating proof cannot be disclosed.

Indicting and trying an accused

Before a person is prosecuted before an (international) court, a decision thereto first had to be taken. This decision is based on antagonistic principles. This is because the Prosecutor is the sole actor who can begin a prosecution by issuing an indictment. This cannot be done by victims or judges. Moreover, the end responsibility for what the indictment contains is the Prosecutor's. Nevertheless there exist several kinds of judicial re-evaluations. One such kind that appears in all international jurisdictions is the approval of the indictment. At the ad hoc Tribunals, the Prosecutor begins an indictment and sends it to a Trial Chamber judge on the conviction that a prima facie argument exists. However, this has not been viewed as a responsibility to prosecute. The practice of judicial assessment of novel indictments has been established as a component of the completion strategy of the International Criminal Tribunal for the former Yugoslavia.

At the International Criminal Court, there are different rulings on decisions to prosecute. The Rome Statute mentions the circumstances in which no prosecutions can be undertaken. These circumstances relate to the interests of justice, issues of admissibility and grounds for believing that a crime has been perpetrated. As decisions not to investigate, decisions not to prosecute are evaluated by the Pre-Trial Chamber. After having decided not to prosecute, the Prosecutor can overturn that decision. Thus, rather than having an obligation to prosecute the Prosecutor rather has discretion in these questions. This prosecutorial discretion is not uncontroversial. The issue has also been raised before the International Criminal Tribunal for the former Yugoslavia. However, it was not proven that the Prosecutor possessed any illegal or unsuitable motive such as discrimination. Therefore the challenge was rejected. At the International Criminal Court, the Pre-Trial Chambers have interfered in several situations, but without substantively influencing the ways in which the Prosecutor chooses situations and prosecutions.

Like municipal indictments, international indictments can be changed or canceled. At the ad hoc Tribunals and the International Criminal Court, these powers are generally exclusive to the Prosecutor. At the ad hoc Tribunals, amendments and elucidations are usual. The most important question here tends to be whether the amendment will produce unfair bias towards the defendant. A charge that is added to the existent ones must be approved like the previous charges and has to be grounded in proof. At the International Criminal Court, after the confirmation of the indictment the Prosecutor can only amend the counts after approval of the Pre-Trial Chamber. A new indictment confirmation is required when the Prosecutor wants to include more charges, or make the existent ones graver. However, this last situation is somewhat problematic, as there is no official hierarchy of crimes. It is not clear whether the indictment can be amended after the trial has commenced. Different interpretations can be had. If no amendments are possible at all during the trial then the chances that the defendant is found not guilty for technical reasons increase.

Unlike in municipal systems, drafting an indictment is often not easy in international criminal proceedings. Indictments tend to include more than one alleged criminal and occurrence. Also, crimes and additional demands for liability tend to be ill-defined. The link between the charges and a later judgement differ between various municipal systems. Thus, there has been much confusion over the composition of and maxims for the indictment, especially at the ad hoc Tribunals. Nevertheless, a consistent practice has emerged that is significant for the International Criminal Court as well. The composition of the indictment is significant inter alia for the purpose of respecting the entitlements of the accused to a fair trial and being swiftly and elaborately informed about the nature of charges. The nature of a charge means the legal description of a charge. This includes the alleged crime and relevant mode of liability and the facts. The Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia do not say much regarding the content of indictments. Rather, case law has dealt extensively with this topic. The indictment has to cover the material facts relating to the charges, but not the proof underpinning the material facts. They have to be provided in sufficient elaboration, so that the accused knows them clearly and can organise the defence. However, multiple factors, such as specificity and the character of the case, determine what a material fact is. For example, more specificity is demanded when a charge involves principal perpetratorship than for accomplice liability such as aiding and abetting.

It must also be discussed how charges relate to the eventual judgement. In fact, the indictment constitutes the most important way in which a person is accused and it creates the construction for the trial. Only facts that are well charged can result in a finding of guilt. Therefore the judges of the ad hoc Tribunals and the International Criminal Court must ascertain, evaluate and decide on all charges contained in the indictment. The Rome Statute of the International Criminal Court states that the judgement cannot cover more than the context and facts contained in the charges or any amendments thereto. Another issue is the question in what ways the legal descriptions of the facts should be interpreted and how the Trial Chambers should respond to wrongful legal descriptions. None of the Statutes or Rules of Procedure and Evidence of the ad hoc Tribunals or the International Criminal Court state anything about this. There is not one general international legal principle here; common law and civil law traditions have different answers. At the International Criminal Court, Chambers can alter the legal descriptions of a fact. This means that on the basis of the same facts different crimes can be constructed from those chosen by the Prosecutor. This was done very problematically in Lubanga, when the Pre-Trial Chamber modified the characterisation of war crimes conduct from a non-international armed conflict to an international armed conflict. The Appeals Chamber of the International Criminal Court has considered that the modification provisions cannot be employed to surpass the facts.

International crimes are distinct from municipal crimes inter alia because they tend to be more complicated. Frequently international crimes involve numerous acts or omissions by a large amount of perpetrators spread over a considerable period of time. Crimes may overlap insofar as one act may constitute a war crime, a crime against humanity or genocide, depending on the context. This is called a concurrence of crimes. The ad hoc Tribunals have tended to acknowledge cumulative counts. At the same time, it is also the case that only separate crimes can give rise to more than one conviction. Concurrence of crimes is allowed when different charges for the same conduct are based on different statutory provisions, one of which does not have the same material elements as the other, and vice versa. If cumulative counts and convictions are permitted, other charges are not really needed. Nevertheless, it is not possible to find multiple kinds of criminal liability for the same act or omission. The question of cumulative or alternative charges before the International Criminal Court is linked to the powers of the Trial Chamber to alter the legal description of the facts.

Proceedings before the start of the trial

At the ad hoc Tribunals and at the International Criminal Court, an official fist hearing is conducted as soon as the defendant has come to the Court or Tribunal. This is the same for many municipal jurisdictions. The Chamber must ascertain that the defendant has been offered the indictment (in the case of the ad hoc Tribunals) or the arrest warrant (in the case of the International Criminal Court). The ad hoc Tribunals would accuse the person officially and permit them to reply with a plea to the counts. A guilty plea would result in simpler proceedings, but a not guilty plea would lead to the determination of a date for trial. However, at the International Criminal Court the defendant is not formally charged. At the International Criminal Court and the ad hoc Tribunals judges must confirm the indictment, for the protection of the defendant. Rather than is the case with the Tribunals, the International Criminal Court has pre-trial hearings with the defence and prosecution. Defendants at the International Criminal Court are permitted to challenge the proof of the Prosecutor. The Tribunals demand a prima facie criterion, and the Rome Statute of the International Criminal Court requires that there be substantial reasons to hold that the person has in fact perpetrated crimes. The Chambers must deliberate all counts and confirm or reject them. After confirmation at the International Criminal Court the case is brought from the Pre-Trial Chamber to the Trial Chamber. In the case of the ad hoc Tribunals, the approval of the indictment comes before the person's arrest and surrender. The opposite sequence is applied at the International Criminal Court. However, the real surrender of a person is often very difficult to acquire. Therefore confirmation hearings in absentia of the accused are allowed. However, entire trials in absentia cannot result in findings of guilt or innocence. At the ad hoc Tribunals but not at the International Criminal Court indictments are generally published.

The trial preparations encompass solving a large number of legal questions, inter alia challenges to jurisdiction, questions of proof and a case's (in)admissibility. It is not very clear whether the Prosecutor and defence can prepare testifiers preceding the presentation of evidence. However, familiarising with witnesses is uncontroversial. The ad hoc Tribunals and the International Criminal Court have all developed (partially) different pre-trial procedures so as to make the pre-trial stage more efficient. At all three institutions, this has meant that the judges have become more industrious.

As has been stated, one essential characteristic of a just trial and a demonstration of equality of arms is that the Prosecutor discloses their evidence to the defendant. This allows the defendant to prepare for the rest of the proceedings. Generally, this is easier in inquisitorial than in adversarial systems. The International Criminal Tribunals for Rwanda and the former Yugoslavia follow the adversarial system in regulating the disclosure of evidence. The Prosecutors of these Tribunals have elaborate responsibilities regarding the disclosure of evidence before the start of the trial. The defence must be allowed to view the evidence of the Prosecutor. On their part, the defence must disclose materials relating to alibis or any special defences. In the case of the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber has some control over the disclosure of evidence. Nevertheless, it is not clear whether the Prosecutor must disclose evidence to the Trial Chamber. The Rome Statute briefly and the Rules of Procedure and Evidence more elaborately discuss disclosure of evidence. However, it is unresolved whether entire disclosure of the proof must happen preceding or following the confirmation hearing, and whether the Chambers must be able to use a dossier, as in the inquisitorial system. Clearly, however, the confirmation hearing and the trial have differing goals. And, in any case, the Chambers of the International Criminal Court have an important influence on the procedure of disclosure. They have the discretion to ordain disclosure in the context of the charges confirmation. Disclosure occurs between the defence and prosecution and is thus not part of any comprehensive dossier. The Rome Statute of the International Criminal Court emphasises that the Prosecutor must disclose proof that exculpates, moderates or possibly influences the trustworthiness of the proof of the prosecution.

Rules on proof

Evidentiary rules at the ad hoc Tribunals and the International Criminal Court are within the antagonistic tradition insofar as the prosecution and defence have the main task of bringing proof to the respective Tribunal or Court. Still, the judges can offer more proof. These institutions have high evidentiary thresholds. Nevertheless, the ad hoc Tribunals have been elastic in this regard and have not always attached great value to technical provisions on evidence. At the International Criminal Court as well, sizable amounts of proof and hardships in gathering it are grounds for permitting a liberal attitude towards the admissibility of evidence. At the same time, this may have implications for the justness and success of the trial. The Tribunals have only some rules on evidence, but a relatively much case law. This has affected the law of the International Criminal Court on evidence. The Trial Chambers of these three institutions cannot be obliged by municipal evidentiary rules. Rather, the Tribunals must use the fairest rules and are consistent with the essence of their respective Statutes. The Tribunals may therefore admit any proof that is probative and relevant. Therefore the proof has to be reliable, a condition that relies on many contexts. Proof that could influence the fairness of the trial or because it was acquired in a particular way can therefore be declared inadmissible before the ad hoc Tribunals and the International Criminal Court. However, there is a presupposition favouring the admission of evidence. This is not the case with proof of sexual assault. Here, there is a presumption of non-consent. Consent cannot therefore be deduced from silence, for example. An additional unsettled question is the utilisation of written testimonies instead of oral testimonies. This is currently permitted at the ad hoc Tribunals, in specified circumstances. It is not clear yet how the International Criminal Court is going to deal with materials and facts on which there has already been a judgement, but it may allow recorded testimonies and scripted transcripts.

Confessing guilt or pleading guilt, plea settlements

The ad hoc Tribunals follow the common law perspective on guilty pleas, formally evaluating the guilty plea. If the Chamber recognises the plea, then the defendant is found guilty and a hearing takes place to determine sentencing. The factual grounds for guilty pleas are frequently not so strong, and the Chambers are hesitant to order more proof. This strategy allows for settlements between the parties in terms of guilt and punishment. The rationale is that the parties may conclude the dispute in this way. The ad hoc Tribunals have for a considerable time allowed plea bargaining. The appeal of the approach is in part due to the idea that the punishment of the defendant would be lowered. This is indeed the practice, but it is not guaranteed. The approach of the International Criminal Court to pleas of guilt resembles the civil law approach. Here, a confession is just one piece of proof. In the evaluation of the admissibility of guilt, the International Criminal Court focuses more on the facts and any proof. Plea bargaining is allowed, but the result is not binding on the Court.

Trial and judgement

Many of the trials at the ad hoc Tribunals have taken much time to complete. This is partly because trials are of an adversarial character, and the defence and prosecution thus prepare and bring forward their own, separate cases. The parties have been permitted to change their arguments and proof, depending on the trial's course. However, this practice is allowed decreasingly. While the confirmation hearings can be done in absentia, this is not the case for the actual trial. Trials are mostly public, but for reasons mentioned above there can also be closed sessions. Trials at the ad hoc Tribunals and the International Criminal Court proceed according to a clear plan: opening arguments, the exposition of proof, closing statements, discussion and finally the judgement. The International Criminal Tribunals for the former Yugoslavia and Rwanda adhere to the two-case structure, but the International Criminal Court may go about things differently, due to the broad mandate of judges to steer the proceedings. The exposition of proof at the ad hoc Tribunals follows the adversarial plan: prosecution proof, defence proof, prosecution proof in refutation, defence proof in reply, proof ordained by the Chamber, and lastly proof concerning punishment. During all of these stages, judges can pose questions and direct examination, cross-examination and additional examinations are permitted. The International Criminal Court, however, does not distinguish as rigidly between the testifiers of the parties, and a more liberal structure. Both the ad hoc Tribunals and the International Criminal Court permit the accused to testify in their own defence. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Court also permit the defendant to make statements not under oath. The ad hoc Tribunals and possibly also the International Criminal Court allow for the possibility of a mid-trial acquittal, resulting from a judgement after the exhibition of the prosecution argument. This can only be done if no proof has been presented that might lead to a finding of guilt.

Proceedings before Appeals Chambers

The International Military Tribunals at Nuremberg and for the Far East did not grant defendants the possibility of appealing their trial judgement. However, currently any person found guilty has the right to have the conviction reassessed by a higher tribunal or court. Convictions and sentences but also acquittals can be appealed at the ad hoc Tribunals, the International Criminal Court and elsewhere. Appeals Chambers can approve, change or nullify the Trial Chamber's decision. They can also arrange for an entirely new trial, undertaken by another Trial Chamber.

Before the ad hoc Tribunals, appeals have a corrective nature and cannot lead to new trials. Thus appeals here focus on rectifying mistakes of fact and of law. However, the requirements for allowing a correction of a mistake of fact are high. The Appeals Chambers of the ad hoc Tribunals have created their own discretionary power to rectify a factual mistake on their own motion. Parties have to explain how the perceived error undermines the Trial Chamber decision. At first, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia often referred a case back to a Trial Chamber when a factual mistake had been identified, but to spare resources and cut on trials' lengths it began to correct such mistakes itself. The Appeals Chambers of the ad hoc Tribunals have been reluctant to alter sentences. The Rome Statute of the International Criminal Court includes the following grounds of appeal: legal mistakes, factual mistakes, procedural mistakes and, as another option in the case of a conviction, anything else that influences the justness or trustworthiness of the decision or proceedings. The most important reason to appeal a sentence is when it is excessive in relation to the crime perpetrated. However, if the Appeals Chamber of the International Criminal Court is to change the decision or sentence or order that a Trial Chamber must hold a new trial, an additional requirement applies. This is that the proceedings were unjust in a manner that influenced the trustworthiness of the sentence or decision. Or a procedural, factual or legal error materially influenced the sentence or decision. The Appeals Chamber of the International Criminal Court has much discretion and may examine new proof.

Interlocutory appeals are appeals that are not definitive, but rather made during the proceedings. They are allowed at the ad hoc Tribunals per their respective Rules of Procedure and Evidence and also at the International Criminal Court. Interlocutory appeals can involve jurisdictional decisions and questions of admissibility, provisional release or particular steps taken by the Pre-Trial Chamber. All different decisions demand leave of appeal confirmed by the Chamber that is issuing the challenged decision. Leaves to appeal demand that the decision concerns something that would substantially influence just and swift proceedings or the conclusion of the trial. It is also required that the Appeals Chamber would be able to substantially improve the proceedings. The ad hoc Tribunals have been hesitant with regard to reviews of the carrying out of the Trial Chambers' optional powers. Decisions taken in interlocutory appeals can be reviewed only if an evident reasoning mistake has been pointed out or if this needs to be done in the interests of justice. At the International Criminal Court, the norm for reconsiderations is not yet very clear.

Review

Revision of proceedings is allowed by the Statutes of the ad hoc Tribunals and the International Criminal Court. However, this is only permitted as an exceptional correction against against a failure of justice. This goes beyond simple legal or factual mistakes. At the ad hoc Tribunals, both parties can seek review. The Prosecutor can thus seek review of an acquittal. This is not the case at the International Criminal Court, where review can only be sought in relation to a sentence or conviction. The ad hoc Tribunals have four requirements that have to be satisfied for a successful application of review. Firstly, there must be a novel fact. Secondly, the party applying for review was unaware of this fact during the original proceedings. Thirdly, it is not because of the applicant's neglect of due diligence that the fact was not revealed earlier. Fourthly, the novel fact might have decisively influenced the original decision. These requirements are very similar to those employed at the International Criminal Court for reviews. The ad hoc Tribunals on the one hand and the International Criminal Court on the other have somewhat different rules governing exceptions to these requirements.

Crimes against the administration of justice

The two ad hoc Tribunals and the International Criminal Court have the power to try and sentence those who commit offences targeting the administration of justice. In the case of the International Criminal Court, provisions on crimes against the administration are expressly included in its Statute. Here, a differentiation is made between crimes targeting the administration of justice and less grave misbehaviour before the Court. The former may lead to imprisonment and/or a fine, the latter to a fine and additional steps. The rules of the ad hoc Tribunals only treat contempt of court.

Concluding remarks on international criminal procedures

It is not possible for the present text to deal with all aspects of international criminal procedures. Many of the assessments here originate from the traditional dichotomy between the various legal systems, or antagonistic and inquisitorial aspects. These paradigms inform perspectives on the various questions of international criminal procedures. International human rights norms can also be interpreted in varying ways, as can the specific contexts and challenges. International criminal procedures will therefore always be the subject of criticism. While the ad hoc Tribunals started with very little supervision, they developed proceedings that respect demanding human rights norms and procedural standards. One significant problem, nonetheless, is the time that proceedings tend to take. Victims have a marginal role at the ad hoc Tribunals. From its beginnings, the International Criminal Court has differed from the ad hoc Tribunals in its attention for victims and its more inquisitorial approach. Certain questions have not yet been answered decisively, such as the ideal relationship between the judges and the prosecution and what the exact difference is between a case and a situation. The pre-trial processes and particularly the confirmation process are lengthy undertakings. This has especially been the case in the Lubanga pre-trial stages.

The role of victims in international trials - Chapter 18

 

Preliminary remarks

Conventionally, the defendant is at the core of the criminal proceedings. The other party is the prosecution. Victims, however, also without doubt have an interest in the criminal proceedings. At the municipal level, the question of the role of victims as victims (instead of as witnesses) in proceedings is answered in different ways. The antagonistic model, which focuses on the separate cases of the prosecution and defendant, often does not provide victims the opportunity to participate independently in the trial. However, in the inquisitorial model, where the judge is more powerful and the prosecution-defence dichotomy less important, victims can participate in proceedings easier. Irrespective of whether victims can participate in a trial as victims, they often get involved as witnesses. Most of the times, but not always, the entitlement of a victim to reparations for the crime is treated in another, civil process.

At the international level there is increasing attention for the role of victims in trials. However, stances on what the appropriate role of victims is vary. In the past decades international organisations have undertaken various efforts to better protect the victims of serious violations of international human rights norms and international humanitarian law. One of the reasons behind the creation of multiple international criminal jurisdictions was to offer a sort of compensation for victims. However, this can be done in various ways, not just through international criminal proceedings. The influence of victims on trials before the International Criminal Tribunals for the former Yugoslavia and Rwanda has been very limited. This situation has been condemned as unsuccessful. The Rome Statute of the International Criminal Court, on the contrary, has relatively extensive provisions on victims, providing for protection, engagement and compensations. Many of the victim-related issues during the negotiations on the Rome Statute were problematic, however. On the one hand, these novelties in the statute of an international criminal jurisdiction have been lauded as a move away from entirely punishment-oriented proceedings. On the other, it has been suggested the victims' entitlement to participate is a possibly damaging experiment. Indeed, the International Criminal Court should not aim to repair the self-respect of every single victim of an international crime. This would be unrealistic. Still, there are structures in addition to the International Criminal Court that can arrange for reparations, such as national governments. Neither are criminal proceedings the best context to create a historical account or advocate reconciliation. The International Criminal Court has created an approach for outreach acts and is developing a complete strategy with regard to victims. The rights of victims have also been acknowledged by later hybrid courts, such as the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon.

Defining victims

The Rules of Procedure and Evidence of the International Criminal Court define victims. This definition is partly based on the United Nations Victims Declaration of 1985. The definition is valid for goals of protection, engagement and compensation. There is a distinction between natural persons and legal persons. Perhaps rather vaguely, a victim is a person who has suffered harm. The Van Boven/Bassiouni Principles and international human rights jurisprudence have helped the International Criminal Court define harm. It includes injury, damage and hurt and covers psychological, physical and material harm. The harm must be personal, but this can also be indirect, for example when someone is a relative of a child soldier. The harm suffered must be linked to the crime in question temporally, territorially and substantively. Legal persons can be victims if the harm they have suffered is direct and if the harm is linked to particular property, including schools or hospitals.

Protecting witnesses and victims

Caring for witnesses and victims is not an easy task, especially for international criminal tribunals and courts. They largely depend on live proof, and the wide publications of international trials and the character of international crimes merit the establishment of comprehensive care for witnesses and victims. Such care becomes even more needed when investigations and proceedings happen while crimes are still being committed. Unlike municipal authorities, international criminal jurisdictions do not own police forces. Rather, they depend inter alia on the collaboration of States and peacebuilding forces. Much case law has dealt with the protection of witnesses and victims. At the ad hoc Tribunals, this is mainly the task of the Chambers. At the International Criminal Court, however, this responsibility is shared by the Prosecutor, the Chambers, the Registrar and the Registry. The vulnerability of a victim can be influenced by their health, gender, age, and the character of the crime, especially sexual crimes. Protective measures may be necessary to ensure that victims and witnesses are willing to cooperate. Such protection can be grounded in reasons of privacy or security. There are only a few protective measures that can be used outside of the court, such as relocation, but they should be opted for hesitantly. It is also possible, and cheaper, to conduct prosecutorial investigations in such a way that contact with victims is minimalised. During the trial or other stages, steps can be taken to avoid disclosure to the general public. Sessions may be closed, disclosure may be delayed and witnesses may appear in court only by video. The protection steps are also for guiltless third parties and the staff of the court. Protection regimes can be accessible to the defence and prosecutor, and should be deemed as impartial.

Of course, these steps undermine significant just trial norms. Therefore, interests must be balanced against each other. When a person is not identified publicly, this goes against the maxim of a public trial. This is even more so when the identity is not made known to the accused, for whom it then may become more difficult to prepare their defence. Nevertheless, this is allowed at the International Criminal Court. It is not clearly established whether witnesses at the International Criminal Court can be anonymous, that is, not known to either the defence or prosecution. But it would be better to argue that this is only possible before the beginning of the trial.

The participation of victims in proceedings before the International Criminal Court

Unlike at the ad hoc Tribunals, victims are allowed to participate in proceedings for their own interests at the International Criminal Court, both in general and in particular instances. The performance of this entitlement – in what ways, when and where – is strictly controlled by the significant Chamber. This Chamber must therefore avoid that participating victims become like an additional prosecution team, to the disadvantage of the actual prosecution and the defence. With regard to protective steps and reparations, victims can begin proceedings themselves and are thus parties, being entitlement to appeal. With regard to other matters, victims are not deemed parties. The earliest activities with respect to the participation of victims before the International Criminal Court mainly concerned the participation of victims in the investigation and the pre-trial phases. In the Lubanga case, decisions on victim engagement, being interlocutory issues, demanded leave for appeal. This has restricted much elaboration on questions relating to the participation of victims.

Victim participation at the International Criminal Court has several goals, although these are not included in the Rome Statute. The International Criminal Court must therefore (still) identify these goals itself. These goals could steer the location, time and ways of victim participation. Clear suggestions would be to help the prosecution and acquire compensation, and multiple kinds of satisfaction. Additional goals could be doing justice to the victim, evading victim estrangement, dealing with victims with respect, making sure that the truth is disclosed and that a fair sentence is issued. More generally, reconcilement and restoration could be facilitated.

Per the Rome Statute, victims are entitled to participate before the International Criminal Court. However, the Chambers of the International Criminal Court can to a great extent choose when to allow this. There are four questions to be asked. Firstly, are those wishing to get involved in particular proceedings victims? Secondly, are their individual interests influenced? Thirdly, is the involvement of the victims suitable? Fourthly, is the way of involvement in accordance with the entitlement of the defendant to a just and neutral trial? Ensuring actual victim participation has proven a burdensome process. Further, the victim must be a victim in the terms of the definition given above. In the case of sought participation in a case (rather than a situation), the harm they have undergone must also be causally connected with the crime of which the defendant is accused. This causal link may be hard to prove. The idea of individual interests is crucial for decisions on victim engagement, and should be tightly connected with the reasons behind the participation structure per se. However, no advice is provided on the way in which the notion of individual interests must be interpreted. Also, such interests could change while the proceedings are ongoing. In the 'situation' phase, interests are linked to the investigation of crimes and the identification of the perpetrator. Interests can also be linked to compensations and sentencing. Engagement of victims must also be suitable. This can be determined with reference to the aims of participation, but also the context and the way in which participation would take place. The manner of participation has to be balanced against the entitlement of the accused to a fair trial without unjustifiable delay. Legal representation of victims is especially desirable when there are many victims, and when they are seeking comprehensive participation.

Victims can participate in any phase of the proceedings, although with different substantive effects. Victims can offer the Prosecutor with documentation for the goal of an investigation, but this does not necessarily lead to an investigation. Victims can also seek to get involved in any reconsideration of the Prosecutor's determination not to try or investigate. However, they cannot seek such a review themselves. Before the beginning of the proceedings, victims can thus participate through judicial proceedings relating to the investigation. Rather than broadly permitting engagement in the investigation phase, it would be better to restrict victim participation to specific procedural processes. The Pre-Trial Chambers have suggested that pre-trial victim participation can materialise in very extensive forms. However, this is not in accordance with the Rome Statute of the International Criminal Court nor Appeals Chambers decisions.

When a case has been created on the basis of a situation, things become clearer. As stated above, during a case victim participation requires a link between their harm and the charged crime. Such engagement is ongoing, but the International Criminal Court tends to demand discrete requests for engagement in particular procedural processes. This can happen especially during arrest proceedings, hearings pertaining to the confirmation of the arrest warrant, and the trial itself. The Rules of Evidence and Procedure of the International Criminal Court say little on victims' entitlements to participate. It is presumed that victims without legal counsel have fewer rights than those with legal representatives. Witnesses can be questioned and examined. Controversially, the Trial Chamber in Lubanga approved a victim representatives application to deliberate a legal redefinition of the charges. The Appeal Chamber later disagreed with the Trial Chamber's actions. Victims may appeal findings on issues that they can begin, for example reparation and maybe protective steps.

Reparations

The Statutes of the ad hoc Tribunals do not offer reparations to victims. However, the International Criminal Court may order reparations immediately to victims or in their respect. This can cover restorations, indemnifications and rehabilitation. The judges must find what the scope of the harm is. These matters are of a civil character. Nevertheless, after an application to reparations an order will usually come. Both personal and collective reparations can be made. For collective reparations, a trust fund will be established. Whether reparations are granted is a matter for different proceedings, covering appeals. The International Criminal Court is able to ask States to block assets, so that future reparations are provided for.

Evaluating victims' participation in international criminal trials

The International Criminal Court and the hybrid courts focus much more on victims than do the International Criminal Tribunals for the former Yugoslavia and Rwanda. If it is asked whether this development is desirable or unwanted, the aims of international criminal justice have to be referred to. These aims may be said to include corrective justice. Victim participation can add to the legitimacy of international criminal jurisdictions. However, such participation does need to be balanced against the entitlements of the defendant. It must also be considered that not all victims have matching interests. Not all of them may favour a trial. The victim engagement strategy at the International Criminal Court is new in international criminal law and must be improved slowly. This is a complicated task, requiring large amounts of resources. Victims are many, application demands are detailed, and there have been several decisions, sometimes theoretical, in the same case or situation. Especially the Pre-Trial and Trial Chambers have been enthusiastic in engaging victims. However, as has been discussed above, various problems have emerged in this early practice. It cannot yet be concluded whether the victim participation strategy at the International Criminal Court contributes to restorative justice. While it still needs to be developed further, it has also been praised. However, the resources for reparations will plausibly be very limited.

Punishments - Chapter 19

 

Crime and punishment

There are many treaties of international criminal law and international humanitarian law that criminalise certain conduct. However, there is almost nothing in treaty law on sentencing matters, such as punishments. Still, the principle of legality also demands that a person cannot be retroactively punished – nulla poena sine lege. Therefore international criminal tribunals and courts must also provide for punishments. This is not easy, however, because States have contrasting opinions about punishments. Due to this situation international clauses on punishments are quite broad. The International Military Tribunals at Nuremberg and for the Far East could sentence persons to death or alternative punishments as they considered just. The subsequent military tribunals acting under Control Council Law No. 10 and elsewhere possessed the same sentencing mandates. Due to fears concerning retroactive punishments, they were deemed grounded in customary international law. None of these institutions established any punishment advice that would prove valuable to the later international criminal jurisdictions. In the context of sentencing, it is important that the International Criminal Tribunals for the former Yugoslavia and Rwanda were established during a proliferation of international human rights standards and the eventual global refusal of the death penalty. Currently there is no globally recognised interdiction of the death penalty. At the ad hoc Tribunals, the sole punishment for the most important crimes is imprisonment, either for the rest of the convict's life or for a time specified in years. With reference to the principle of legality, the Tribunals must, according to their respective Statutes, use the broad domestic practice regarding punishments in Rwanda and the former Yugoslavia. The Tribunals have held that this does not mean that they must strictly follow the relevant domestic practice, but solely to bear it in mind and justify any non-adherence.

The question of which punishments to impose was also asked during the negotiations on the Rome Statute of the International Criminal Court. Several States stuck to the idea of including capital punishment. But many States were unwilling to agree to this, inter alia because of treaty obligations. A few States would also have constitutional problems with life imprisonment. Therefore life imprisonment is only possible if someone has committed an extremely serious crime and particular individual contexts are satisfied. Otherwise the maximum sentence is thirty years. Also, the International Criminal Court can order fines and confiscation of property, assets and proceeds obtained immediately or indirectly from the crime. The instruments of the particular crime cannot be confiscated.

Aims of punishment

The aims of punishment in international criminal law have not clearly been spelled out. In domestic criminal law, traditional aims of punishment are incapacitation, retribution, rehabilitation, deterrence and social consolidation of the convict. As already mentioned above, the aims of discipline at large and in the context of international criminal jurisdictions specifically are controversial. One argument is that retribution is the most suitable reason for international criminal punishment. Another argument is that punishment should be oriented towards reconciliation and the strengthening of peace. It is not easy to accomplish less specific goals such as social consolidation and rehabilitation. Because there is no general agreement on the purposes of punishment in the realm of international criminal justice, the ad hoc Tribunals and the International Criminal Court cannot be given much advice in this regard. Nevertheless, the ad hoc Tribunals have always stated that general prevention and retribution are the main aims of punishment. Other recognised aims include rehabilitation, special prevention (relating especially to the convict), reconcilement, and condemnation and denouncement of crimes. Sentencing practice has been incoherent. This indicates that there is no set of generally accepted principles. The reasons behind plea settlements at the ad hoc Tribunals also contradict possible aims of punishment. It has been suggested that punishments imposed at the ad hoc Tribunals are charitable in comparison with municipal punishments for crime.

The application of sentencing

The ad hoc Tribunals have stressed that punishment is a fundamentally discretionary task, due to the lack of guidelines linking particular crimes with specified lengths of imprisonment. The ad hoc Tribunals have acknowledged the importance of consistent treatment. However, there is often not much use in comparing sentences from different cases with each other. The most crucial aspect for the determination of punishment is the seriousness of the crime. This covers the kind and degree of involvement of the convict in the crime. The ad hoc Tribunals have tended to determine the appropriate amount of punishment in each case individually. Genocide is deemed more severe than war crimes or crimes against humanity. The ad hoc Tribunals have considered that crimes against humanity and war crimes are comparably severe. The possibility of cumulative convictions at the ad hoc Tribunals, described above, minimalises the question of what crimes are more serious than others. However, the exact time of imprisonment always relies on the facts of the case. The ad hoc Tribunals must consider the individual context of the defendant and deduct from the sentence time already served. This is more or less the same at the International Criminal Court. It has been found that the International Criminal Tribunal for the former Yugoslavia imposes higher sentences on higher-level perpetrators and for more elaborate crimes.

An important aspect of the practice of sentencing are extenuating and exacerbating circumstances. The ad hoc Tribunals and the International Criminal Court must take these into account. At the International Criminal Court, the threshold above which the Prosecutor must prove exacerbating circumstances is higher than the threshold above which the defendant establishes extenuating circumstances. According to the case law of the ad hoc Tribunals, exacerbating circumstances are inter alia the length of time during which the crime was perpetrated, the crime's scale, the harm done to the victims as well as their amount and age, the character of the engagement of the perpetrator, preparation and discriminatory intent, misuse of power and having a high function in a hierarchy. These circumstances must be linked to the crime in order to be deemed exacerbating. However, if they are part of the crime itself or have been deliberated in the context of the seriousness of the crime, then they cannot count double. The International Criminal Court has similar instances of exacerbating circumstances. At the ad hoc Tribunals, the only extenuating circumstance included in their Rules of Procedure and Evidence is significant collaboration with the Prosecutor. Generally, guilty pleas lead to a reduced sentence. Additional extenuating circumstances can be a statement of regret, voluntary capitulation, aid to victims or detainees, a good personal nature, age, good behaviour while detained, certain family contexts, and especially poor health. Extenuating circumstances immediately linked to the crime include limitedness of a person's participation in the crime and circumstances that are significant for but do not constitute grounds for omitting liability. It is unclear whether the motive of the defendant can affect the punishment.

As mentioned above, the ad hoc Tribunals permit cumulative counts and findings of guilt on the basis of the same act or omission. However, this should not negative affect the defendant in terms of punishment. Nevertheless, practice on this issue is inconsistent. The Rome Statute stipulates that the International Criminal Court must pronounce individual sentences for the individual crimes plus a joint sentence stating the total time to be served. This total time must be at least the length of the highest single punishment, but cannot be more than the highest sentence provided for in the Rome Statute.

Punishment procedures

The ad hoc Tribunals can treat the questions of guilt and punishment in one judgement. This is also what the Rome Statute of the International Criminal Court stipulates. However, findings of guilt and punishment can be split in separate judgements if either of the parties so asks. If a defendant pleads guilty at either of these three jurisdictions, the case will be taken to a hearing concerning punishment. Punishments can be appealed per se at the ad hoc Tribunals and the International Criminal Court. At the ad hoc Tribunals, the usual question asked in such situations is whether the relevant Trial Chamber has made a tangible mistake. However, at the International Criminal Court appeals concerning sentencing revolve around the question whether the punishment is excessive in relation to the crime.

Punishment commutation, pardon and early exemption

Prisoners may be released early, be pardoned or have their sentence reduced. While prisoners tend to be transferred to other States than those hosting the ad hoc Tribunals, these Tribunals still retain decisive powers on these issues. Criteria relevant for early release, pardon and a reduction of sentence are similar to the post-crime extenuating circumstances mentioned above. In the case of the International Criminal Court, punishments must be reconsidered automatically after the convict has served two-thirds of their sentence, or, in cases of life imprisonment, after twenty-five years.

Execution of the sentence

States can state that they are willing to execute sentences ordered by the ad hoc Tribunals or the International Criminal Court. Thus convicts serve their sentences in these States. States do this voluntarily and may require the satisfaction of certain conditions. The President of the relevant ad hoc Tribunal or the entire International Criminal Court Presidency chooses in which State a specific convict will serve their sentence. This State has no say over the length of the imprisonment period. The circumstances of imprisonment must respect municipal laws under the control of the International Criminal Court or the relevant Tribunal. The International Criminal Court also demands that generally recognised treaties on the handling of prisoners are respected. Similar provisions apply in the case of fines, confiscations and reparations.

Collaboration of States with international criminal jurisdictions - Chapter 20

 

Features of collaboration regimes

There are important differences between inter-State collaboration in criminal issues on the one hand and collaboration between States and the International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court on the other hand. Responsibilities that States have towards international criminal tribunals and courts are more extensive. This is because these institutions have jurisdiction over the gravest crimes with which the international community is concerned. The ad hoc Tribunals and situation referrals by the United Nations Security Council to the International Criminal Court are also express policies to reconstruct or maintain international peace and security. Traditional hindrances of collaboration often cannot be applied anymore, because of high procedural norms and the protection of personal rights. International criminal jurisdictions are effectively dependent on the collaboration of States, because they legally and practically cannot enforce their own decisions. Collaboration between States is seen as horizontal, while collaboration between international criminal jurisdictions and States is vertical. The responsibility to collaborate with the ad hoc Tribunals is binding on States. The collaboration scheme of the International Criminal Court is a mixture of binding responsibilities and voluntary collaboration.

The responsibility to collaborate

As accessory bodies of the United Nations Security Council, the ad hoc Tribunals can according to their Statutes impose binding decisions on States. In this context, it is relevant that the ad hoc Tribunals have precedence over municipal courts. The responsibility to collaborate only exists for Member States of the United Nations, although the International Criminal Tribunal for the former Yugoslavia has held that other governmental units also have this duty. The Statutes of the ad hoc Tribunals have non-exhaustive overviews of forms of State collaboration. Traditional reasons to reject inter-State collaboration are not allowed in this context. Thus the ad hoc Tribunals can issue binding orders on States. In contrast to the ad hoc Tribunals, the International Criminal Court is an autonomous and self-governing inter-State organisation, with the capacity to ask for collaboration from the States Parties. The Rome Statute of the International Criminal Court expressly orders that all States Parties collaborate entirely with the Court. This collaboration is restricted to what is mentioned in the Rome Statute. States can offer more collaboration on a voluntary basis. They are required to amend any domestic legislation so that this will not hinder their collaboration with the International Criminal Court. It has been suggested that the responsibility to collaborate with the International Criminal Court becomes activated when an investigation officially begins.

It may be the case that the duty of a State to collaborate with the ad hoc Tribunals or the International Criminal Court conflicts with other international responsibilities of that State. The ad hoc Tribunals find their legal force in the United Nations Charter. Therefore orders they issue will usually trump other international obligations of States. Things are not so clearcut in the case of the International Criminal Court. When the United Nations Security Council, acting under Chapter VII of the United Nations Charter, orders collaboration responsibilities in its referral of a situation to the International Criminal Court, then such orders have primacy. In other cases, broad principles apply. For example, the more specific or more recent treaties trump more general or older treaties. The Rome Statute of the International Criminal Court includes specific provisions on contradictory requests for collaboration, and other issues such as immunities. In the context of immunities, Article 98 of the Rome Statute provides that the International Criminal Court can only continue with a demand for surrender if consent or a waiver of immunity has been acquired. Still, if the International Criminal Court sticks to its request, then conflicting obligations cannot found a rejection of the request.

Several times, the ad hoc Tribunals have confirmed binding instructions to individual persons rather than States, to come to the respective Tribunal and give proof. If persons do not adhere to such instructions, they are potentially criminally liable for contempt of the Tribunal. These orders must be implemented by domestic authorities. Solely a few States have passed laws on forced delivery of witnesses to either of the ad hoc Tribunals. The Tribunals are not allowed to issue binding instructions directly to State servants acting in their formal capacity, but must do so to the State concerned. The orders may be directed to officials as private individuals. But the ad hoc Tribunals nonetheless tend to address States rather than individuals. There are immunities in this regard, but they have conditions attached. It is unclear whether the Rome Statute enables the International Criminal Court to force a person to collaborate. The better view appears to be that the International Criminal Court may be allowed to instruct a witness to come to the Court, but that it is not permitted to require that a State transfer a witness who does not conform themselves. Only if no existent, crucial and broadly applicable principle of law would be breached can the International Criminal Court ask for a non-voluntary delivery of a witness. The ad hoc Tribunals or the International Criminal Court can ordain the temporary delivery of a witness who is already in custody instead of compelling individuals to come to the Tribunal or Court

International criminal jurisdictions, intergovernmental organisations and States not members of the United Nations

Collaboration of non-States Parties, in other words States without United Nations membership, has not been a significant issue for the ad hoc Tribunals. The fact that the States of the former Yugoslavia were not immediately United Nations Member States when they seceded from Yugoslavia has not caused problems. The International Criminal Court may request non-States Parties to collaborate, on specially agreed terms. Non-States Parties that recognise the jurisdiction of the International Criminal Court in single cases are obliged to collaborate under Part 9 of the Rome Statute. The United Nations Security Council can order United Nations Members States to collaborate with the International Criminal Court even when they are not parties to the Rome Statute. It has proven essential that non-State entities collaborate with international criminal jurisdictions. An example is when international armed forces arrest persons indicted by one of the ad hoc Tribunals. The International Criminal Tribunal for the former Yugoslavia has indicated that it can permit arrests by non-State actors, but that they do not have a duty thereto. A few times, indictments have been confirmed directly to non-State actors rather than States. The mandate of the United Nations peacebuilding mission to the Democratic Republic of the Congo does not mention the International Criminal Court. However, in 2004 and 2008 the mission was expressly ordered to collaborate with international attempts to prosecute perpetrators. Apart from peacekeeping missions, the International Criminal Tribunal for the former Yugoslavia has held that it can confirm binding instructions to international organisations, with international legal personality. The International Criminal Tribunal for the former Yugoslavia has done this several times. Contrarily, at the International Criminal Court collaboration with intergovernmental organisations occurs on a voluntary basis. There is a particular relationship agreement between the International Criminal Court and the United Nations. One issue in the context of collaboration with intergovernmental organisations is how to treat confidentiality. The International Committee of the Red Cross can prevent disclosure of witness statements or information by its current and former staff.

Non-adherence

The Statutes of the ad hoc Tribunals do not deal with the issue of non-adherence to the responsibility to collaborate. Nevertheless, in Blaškić the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia found that it can judicially determine anything required for the performance of its primary jurisdiction. This includes determining a situation of non-adherence and communicating this to the United Nations Security Council. The International Criminal Court may do the same when the relevant situation before it was referred to it by the United Nations Security Council. Otherwise, it can communicate the issue to the Assembly of States Parties. Violations of binding instructions by a non-State Party can also be communicated. The consequences of such findings are not clear. Various measures could be taken, including economic sanctions, but potentially at the cost of the support for the relevant international criminal jurisdiction. In reality the United Nations Security Council has not reacted successfully to communications of non-adherence by the International Criminal Tribunal for the former Yugoslavia. On the contrary, however, the United Nations Security Council acted successfully in realising the arrest of Charles Taylor. Actions performed by a number of States together have been more effective.

State collaboration and complementarity at the International Criminal Court

As described above, a crucial principle for the International Criminal Court is that municipal investigations and trials have precedence. Concrete examples of the complementarity principle include the ne bis in idem maxim and regulations of conflicting legal obligations. States can challenge the complementarity of a situation. As a consequence of this, the Prosecutor has to postpone the investigation. Still, States must collaborate until the International Criminal Court instructs otherwise. Also, arrest warrants remain in force until the International Criminal Court decides that this is not the case anymore. The Rome Statute states that the International Criminal Court can give States a limited amount of assistance. Also, the International Criminal Court can deliver the defendant to a State that has successfully challenged admissibility, with the consent of the State that surrendered in the beginning. When two or more States are willing and able to exercise jurisdiction over a particular case, collaboration between them is especially important.

Power to request collaboration and defence entitlements

Some inequality exists between the capacities of the prosecutor and the defence counsel to ask for collaboration. This situation has been criticised. The Prosecutor can ask for collaboration autonomously in the name of the relevant international criminal tribunal or court. This includes tentative arrest and confiscation of proof in compelling cases. However, the defence can only ask for these actions through a judge. This difference is more pronounced in adversarial models than in inquisitorial models. Prosecutors at the ad hoc Tribunals and the International Criminal Court may request the relevant Chamber to allow or authorise the required instructions or arrest warrants. It can also be asked to what degree domestic authorities should abide by just trial standards and other procedural norms when they act in the name of the relevant Tribunal or Court. Similarly, it may also be an issue to what remedies the defendant has access when such entitlements are breached.

Apprehension and surrender

There is an explicit duty to facilitate apprehension and surrender in the Statutes and Rules of Procedure and Evidence of the ad hoc Tribunals. Usually this duty is grounded in an arrest warrant, but in compelling cases the Prosecutor can ask for a tentative arrest. Arrest warrants can be connected with instructions to block the assets of the defendant. Although traditional reasons to refuse collaboration do not apply with regard to the ad hoc Tribunals, some States have nonetheless declined to collaborate in certain cases. Indeed, especially civil law systems have laws that forbid extradition in particular circumstances. Because of this, the Rome Statute of the International Criminal Court makes a distinction between extradition (which is to a State) and surrender (to the International Criminal Court). The Rome Statute also implicitly recognises that States can consider proof before surrendering a suspect. However, such municipal procedures should not be more troublesome than processes of extradition between States. By Article 89 of the Rome Statute, the International Criminal Court may fulfill any domestic demands regarding extradition arrangements before a suspect can be delivered. At the International Criminal Court, apprehension and surrender are always grounded on an arrest warrant confirmed by the Pre-Trial Chamber. Then domestic authorities implement the warrant by using domestic procedures, that do have to comply with the Rome Statute requirements on apprehension. The rule of specialty, described above, is included in Article 101 of the Rome Statute. Thus, if the charges change then the International Criminal Court then the surrendering State may have to grant the International Criminal Court a waiver. However, the ad hoc Tribunals have held that States may not decline surrender for any reason.

Additional kinds of legal aid

As described above, the ad hoc Tribunals are not limited to specific instances in their Statutes of legal assistance. They may determine what is needed in specific cases. Requests and instructions for multiple steps have been confirmed and the Tribunals have created a few broad principles. In the case of the International Criminal Court, however, there are a few statutorily defined kinds of assistance that must be offered. In addition, there is an open-ended provision that allows for additional kinds of assistance not explicitly mentioned.

With respect to the ad hoc Tribunals, as mentioned, there are no valid grounds for refusal to collaborate. Aside from the domestic security objection explained below the Rome Statute of the International Criminal Court only allows refusal when the demand is forbidden on the basis of an existent crucial principle of law of broad application. It can be argued that this provision should be interpreted rigidly. No other traditional reason, such as a possible violation of the double criminality demand, can ground a refusal to collaborate. However, the State in question can ask for consultation, adjustment or delay of the collaboration.

Demands or instructions targeting States or persons can lead to domestic security concerns. In such cases it can be asked whether any domestic law could impede the collaboration. Domestic security concerns can in any case undermine successful collaboration and the entitlements of the defendant. States will be reluctant to disclose information that is sensitive but at the same time (potentially) crucial to the criminal proceedings. The Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia and the Rome Statute of the International Criminal Court therefore include compromises balancing domestic interest and the importance of a fair trial. The International Criminal Tribunal for the former Yugoslavia has considered that a State cannot determine what its own domestic security concerns are. It has created several mechanisms that protect sensitive information. The Rome Statute of the International Criminal Court permits a State to refuse collaboration for reasons of domestic security. Whether such reasons exist can be observed by the State, which must nonetheless abide by provisions similar to the mechanisms devised by the International Criminal Tribunal for the former Yugoslavia. In any case, the International Criminal Court ultimately ascertains whether or not the State has respected its responsibility to collaborate. If the International Criminal Court finds that this has not been the case, then it may communicate the issue to the Assembly of States Parties or the United Nations Security Council. Both in the cases of the ad hoc Tribunals and in the case of the International Criminal Court, sensitive information can also be given with the requirement that it be utilised only to create novel evidence and therefore not be constrained by consent provisions.

Another realm of legal cooperation between international criminal jurisdictions and States is that of on-site investigations. These can be essential for the investigation at large, because they give a jurisdiction immediate access to victims, witnesses and crime scenes. Investigations by international rather than domestic authorities may make witnesses more willing to testify, and they are more likely to be undertaken with respect for international norms and procedures. The Prosecutors of the ad hoc Tribunals have statutory rights to undertake on-site investigations. Consent of the territorial State is often requested, but not legally necessary. The Prosecutor of the International Criminal Court can conduct particular non-compulsory measures on a territory without having sought permission from the territorial State. This capacity is quite controversial. In the case of a hybrid State that manifestly cannot carry out a request, the Pre-Trial Chamber can permit particular on-site steps without ensuring collaboration. Given the significance of on-site investigations, the breadth of the Rome Statute is very limited and mirrors the horizontal perspective on collaboration used by the International Criminal Court.

It is not settled whether the International Criminal Court can, or must, confirm an arrest warrant linked to a demand to domestic authorities for collaboration involving coercive steps. Fundamentally, the request must be carried out with respect for domestic laws in the requested State. Still, the procedures covered by the request also have to be adhered to. Usually municipal laws demand a judicial warrant or review for forcible steps. However, in some cases there may be no judicial control, or the review goes beyond human rights standards. Therefore it has been suggested that all forcible steps made in the name of an international criminal jurisdiction should be open to a warrant confirmed by that jurisdiction. No broad requirement concerning international reviews or warrants in the context of State collaboration have been devised.

Municipal enforcement

International law trumps municipal laws. Obligations under the latter can therefore not preclude the execution of obligations under the former. The International Criminal Court and the ad hoc Tribunals demand of States that they ensure that their domestic laws respect international laws. This is linked to the principle that requests be carried out with respect for municipal laws. In reality, solely a limited number of States has passed laws that facilitate collaboration. These laws concern apprehension and surrender, the execution of punishments, and collaboration in the realm of proof and witnesses. This scarcity of municipal laws providing for collaboration could lead to grave practical problems. This is due to the important distinctions between usual collaboration between States and collaboration between States and international criminal jurisdictions. Arguments have been made that the International Criminal Court should help States in passing laws that facilitate collaboration. Questions have been asked about the consonance between the Rome Statute of the International Criminal Court and domestic constitutions. Similar issues may be raised concerning the ad hoc Tribunals. Specific issues include constitutional immunities surrender of nationals, in the context of the responsibility to apprehend and deliver suspects. States cannot circumvent these issues by confirming reservations about their responsibilities to collaborate. However, it can be very burdensome to try to amend a State's constitution.

An evaluation

International criminal jurisdictions are greatly dependent on the collaboration of States. The ad hoc Tribunals adhere to a vertical perspective on collaboration, while the International Criminal Court works on the basis of relatively fewer binding and more voluntary provisions. However, in both instances compliance by States relies mainly on issues not linked to the judicial operations of the ad hoc Tribunals or the International Criminal Court. Due to the hardships in undertaking investigations and trials as well as a lack of possible sanctions in cases of non-collaboration, international criminal jurisdictions can only be successful if States are genuinely able and willing to help. The ad hoc Tribunals and the International Criminal Court have been confronted with cases of non-adherence or just enough collaboration. Problematically, the International Criminal Court functions in conflicts that are still on-going. Paradoxically, because of the complementarity principle the need for collaboration with the International Criminal Court is greatest when the State in question is unable or unwilling to collaborate. In reality, the international criminal jurisdictions are often hesitant to denounce States as disobliging. Informal ways of pressuring may be more successful than sanctions. The current collaboration framework of the International Criminal Court, the weakest part of its procedures, could gradually be improved, but will most likely not be replaced.

Inviolabilities - Chapter 21

 

Preliminary remarks

International legal immunities have existed for thousands of years. For purposes of conflict prevention and resolution and communication it was important that envoys would not be hindered. Municipal and international legal rules came to offer inviolabilities or immunities for the representatives of States, so that jurisdiction could not be exercised over them. However, immunities can also undermine trials for crimes. International law is increasingly emphasising individual responsibility, but this does not mean that laws on immunities are now irrelevant. Immunities can apply when a person is prosecuted for an international crime. One objection to immunities is that interdictions of international crimes are jus cogens, and that therefore immunities should not apply in international criminal law. However, multiple domestic and international courts have denied this argument. The International Court of Justice, for example, has considered that international law tries to reconcile efforts against impunity with immunities, which have their own aims. Distinctions need to be made between personal and functional immunities and between domestic and international jurisdictions. The links between international criminal law and inviolabilities have been said to be complicated and unclear.

Personal and functional immunities

In the context of inviolability from being tried, a crucial differentiation must be drawn between personal immunity or immunity ratione personae on the one hand and functional immunity or immunity ratione materiae on the other. The latter covers acts and omissions performed in the name of a State. It is based on the principle of sovereign equality before States; one State may not judge on the conduct of another State. Functional immunities do not cover acts or omissions performed by State servants in their capacity as private persons. However, personal immunity grants entire immunity of the individual. Much fewer persons have personal immunity than functional immunity. Personal immunity lasts as long as the protected person is in the relevant role. Functional immunity, on the other hand, continues after the person's relevant status has ceased, because it covers acts and omissions rather than people. The aim of functional immunity is to defend official conduct. The aim of personal immunity is to aid international relations. The existence of either means that other States cannot try an alleged perpetrator. The State concerned can waive immunities.

The most established area of inviolabilities is that of diplomatic immunity. Hundreds of years have shaped rules concerning diplomatic immunity. Such rules are enshrined in the 1961 Vienna Convention on Diplomatic Relations. Diplomats have personal immunity while on duty in another State, and while traveling between their own State and a host State. Such immunity means that their person is inviolable, they cannot be prosecuted for crimes and they cannot be apprehended or detained. If the host State suspects the diplomat of having perpetrated a grave crime, then it can ask for a waiver of immunity from the diplomat's State or affirm that that diplomat is persona non grata. After the end of the diplomat's functions and after a given period for departure has expired, the diplomat only has functional immunity. This means that the host State can try the diplomat for crimes perpetrated in their quality as a private person. Other persons belonging to diplomatic missions or consulates have less immunity. The scope of the immunity enjoyed by heads of State is less clear. There are no international instruments in this regard and there is only little State practice. Nonetheless, heads of State at least have the same immunities as diplomats, described above. The status of heads of government and additional ministers is less established. The International Court of Justice in Democratic Republic of the Congo v. Belgium held that foreign affairs ministers have personal immunity similar to that of heads of State. The head of government invariably also enjoys personal immunity. State agents traveling to intergovernmental organisations have immunities according to the relevant treaties. This is also usual for major events outside such organisations. Some officials of the International Criminal Court or the United Nations also enjoy immunities. In customary international law, States are generally not open to civil proceedings in courts of other States. There is a great number of exceptions to this rule, for example with respect to a State's commercial actions.

Several norms can be mentioned that ground immunities. Some of these are legal fictions. Attention for the status of the head of State or sending State has since long been important, as well as the ambition to circumvent problems with other States. However, neither this last reason nor political fictions nor the status of the head of State or sending State is currently a valid ground for immunity. In the context of functional immunity there persists only one reason, which is that one State cannot pronounce judgement on a second State. This is linked to the principle of sovereign equality. An exception may be where (certain) international crimes have been committed. The reason for personal immunity is that it encourages international relations. The International Court of Justice has stated that diplomatic immunity is essential to the peaceful maintenance of inter-State relations. However, personal immunity has also been greatly abused, States being unable to prosecute diplomats for crimes. Two solutions have been proposed to improve this situation. One is to hold that functional immunity does not cover international crimes. Another proposal is to establish international criminal jurisdictions that can leave immunities out of consideration.

Domestic jurisdictions and functional immunities

Domestic courts may treat the question of immunity for trials of international crimes in different manners. States can desire to try a current or past State representative of a second State, seek extradition or get an application for extradition itself. Domestic governments and jurisdictions tended to be very hesitant in raising such issues. However, this situation is changing. For example, Augusto Pinochet, past Chilean head of State, was apprehended in and by the United Kingdom when Spain asked for his extradition. This was on the basis of counts of, inter alia, torture and conspiracy thereto. Initially a British court agreed with Pinochet's argument that the warrant was invalid due to his personal immunity. The charges were held to relate to personal rather than official conduct. At a later hearing, however, it was determined that some grave international crimes were forbidden by jus cogens, and therefore could not be covered by international law as being part of one's official position. This was confirmed in a third hearing. However, it is not entirely clear what decided this case. The most conservative view follows the Torture Convention of 1984. This view holds that where official capacity is a required element of torture, immunity cannot shield perpetrators of torture. A second view is that international crimes cannot be part of any official quality and thus cannot trigger functional immunity. However, this view would go against the facts and the interpretation requiring official conduct for torture. A more subtle version of this view would be that international crimes are part of official conduct, but do not trigger functional immunity. Immunity covers some acts and omissions, but international law cannot simultaneously protect and prosecute the same conduct. It could be argued that this situation includes only torture and other international crimes requiring official conduct, or all international crimes in general. It is also not clear whether these conclusions come from custom, treaty or jus cogens. Neither was it elucidated whether a single act of torture suffices, or that the torture would have to amount to a crime against humanity.

The general finding in the Pinochet case that functional immunity does not inhibit trials for grave international crimes has been approved in many domestic and international trials, State practice and academic writings. However, the International Court of Justice has never acknowledged the principle. The Judgement at the International Military Tribunal at Nuremberg considered that there was no functional immunity for international crimes at all. It argued that international law would defeat itself in simultaneously protecting and criminalising the same conduct. Also, when all States acknowledge that certain conduct is an international crime, then States may not protest that their sovereignty is undermined. Moreover, State officials have international responsibilities that go beyond domestic tasks. Therefore they should be prosecuted if in violation of their international responsibilities. This has been approved by the International Law Commission and the United Nations General Assembly. Likewise, in Eichmann the Supreme Court of Israel denied that Eichmann could hide behind his official capacity, and held that international crimes, especially crimes against humanity, cannot admit the triggering of functional immunity. These findings were endorsed in Bouterse, Castro and Sharon, and in Blaškić and Furundžija before the International Criminal Tribunal for the former Yugoslavia.

Nevertheless, there are also some judgements that perhaps cast doubt over the tendency to not recognise functional immunity in the case of (certain) international crimes. Most significant in this regard is that the International Court of Justice did not recognise this principle in the Democratic Republic of the Congo v. Belgium. The International Court of Justice did state, as part of the obiter dicta, that conduct committed in a private capacity is not covered by immunities. Nevertheless, a majority of later municipal decisions have continued to state that functional immunities do not include international crimes. One exception is a prematurely ended French effort to try Donald Rumsfeld for torture.

International jurisdictions and functional immunities

With respect to functional immunities, international jurisdictions tend to reason as domestic jurisdictions; they provide no functional immunities for international crimes. Further, international criminal jurisdictions have some powers to leave immunities out of consideration.

Domestic jurisdictions and personal immunities

The application of functional immunities has been limited in various ways, but this is not the case for personal immunities, irrespectively of the crimes charged. The Pinochet decision confirmed that persons cannot be prosecuted, even for international crimes, when they enjoy personal immunity. The aim of personal immunity is to make impossible any intervention with a State official so as to facilitate relations between States that perhaps do not trust each other. Efforts to limit the scope of personal immunity have been made in urgent situations, but always unsuccessfully so. Many domestic courts have confirmed that personal immunity precludes prosecution.

A conspicuous case in this context is the Yerodia case before the International Court of Justice. In this case, the Democratic Republic of the Congo contended that Belgium had acted in violation of international laws by confirming an arrest warrant against Abdulaye Yerodia Ndombasi. Yerodia was the acting minister for foreign affairs of the Democratic Republic of the Congo. The International Court of Justice indeed held that Belgium had violated international law by disrespecting Yerodia's personal immunity. The International Court of Justice further argued that findings of non-immunity made by the International Military Tribunal at Nuremberg, the ad hoc Tribunals and the International Criminal Court did not apply in the case of domestic courts. Nevertheless, the International Court of Justice stressed that the non-permanent nature of personal immunity means that it does not guarantee impunity. This Judgement accords with those of domestic courts and State practice on this issue. However, some aspects of the Judgement have caused controversies. For example, the International Court of Justice stated that persons who have ceased being officials can be prosecuted for omissions committed in their private capacity. Also, some have objected that the Judgement inappropriately enlarges the scope of State immunity to include many ministers. Moreover, the Judgement holds that these ministers are protected by personal immunity if in private meetings, without referring to State practice on this issue. In any case, the International Court of Justice acknowledged personal immunity for heads of State and government and ministers of foreign affairs. It created a possibility that other ministers might enjoy personal immunity as well, but the exact boundaries are unclear.

The International Court of Justice in Yerodia stated that personal immunity also counts during private visits. The rationale is that the consequences for the person's engagement in international relations would be the same. However, it can be doubted whether this reasoning alone is supported by customary international law. Rather, State practice would not support this finding. Moreover, it could be suggested that if a State invites or agrees to a formal visit, it will accord full immunity. Where a State has not invited or agreed to a formal visit but the official enters without the host State knowing, then this State might not bestow complete immunity. Further, the International Court of Justice's argument that being arrested in a private visit impairs an official's ability to conduct international relations does not prove that they should be able to go anywhere for their own reasons and enjoy personal immunity. The International Court of Justice thus found the holidays of high-ranking State representatives more important than States' territorial jurisdiction. However, these considerations were part of the obiter dicta in Yerodia and the issue is still not settled.

International jurisdiction and personal immunities

As has been stated, municipal courts have persistently refused any limitation of personal immunities. Personal immunities can only be set aside if the State in question approves. A responsibility gap is thus created. However, there have been efforts to decrease this gap, by establishing international criminal jurisdictions that can set aside personal immunities. This has been the case with the International Military Tribunals at Nuremberg and for the Far East, the International Criminal Tribunals for Rwanda and the former Yugoslavia, and the International Criminal Court.

In Taylor, before the Special Court for Sierra Leone, another theory on personal immunities was established; rather than that international courts can legislate personal immunities away, immunities do not apply because of the international nature of such jurisdiction. Charles Taylor was, at the time of his arrest and the proceedings against him, the serving head of State of Liberia. The Special Court for Sierra Leone used parts of Yerodia and Pinochet to argue that personal immunities do not apply before international courts. The Special Court for Sierra Leone considered that it was itself international, because it had been established by the United Nations and Sierra Leone together. This argument has generated some support and much criticism. The Special Court for Sierra Leone acknowledged that personal immunity is grounded in the maxim that one State cannot judge on the acts or omissions of a second State (although, actually, this grounds functional, not personal immunity). However, it also argued that international jurisdictions are not parts of a State – rather, their mandate is based on the international community as such. However, it could be objected that international courts are established by States. And States cannot bestow powers that they do not have themselves. Those in favour of the Taylor decision argue that international jurisdictions are placed above States. Still, functioning in the name of the international community does not automatically create powers that States do not have. The Special Court for Sierra Leone also stressed that international jurisdictions have confined possibilities to act against abuses and that they decrease the possibly problematic consequences of unilateral actions. These are sound policy-related suggestions, but are not legal arguments. Thus, current international law seems to require that personal immunities do apply, but can be waived by States.

Another possibility is that the United Nations Security Council rejects personal immunity. This can be done under Chapter VII of the United Nations Charter. The United Nations Security Council determined that personal immunities would not apply before the ad hoc Tribunals. It instructed States to adhere to demands from the ad hoc Tribunals, including demands for surrender. Such requests under Chapter VII of the United Nations Charter have precedence over any other legal requirements. States thus have to deliver suspects even when they might enjoy personal immunities. This is also the case when the United Nations Security Council instructs States to collaborate with the International Criminal Court. Both ad hoc Tribunals have proceeded against high-ranking State representatives, for example past Prime Minister of Rwanda Jean Kambanda and Slobodan Milošević, who was a head of State when he was indicted. The International Criminal Tribunal for the former Yugoslavia in Karadžić determined that any agreement that a person would enjoy immunity if they retreated from public life would not apply in international law.

The Rome Statute of the International Criminal Court provides an alternative solution to the issue of personal immunity. States Parties of the International Criminal Court have the obligation to collaborate with the Court and to deliver persons according to the Rome Statute, whether or not they have immunities. Thus, per Article 27(2), immunities do not hinder prosecutions at the International Criminal Court. This Article has led many States to alter their constitutions and other laws before ratifying the Rome Statute of the International Criminal Court. Nevertheless, Article 98(1) inter alia states that the International Criminal Court cannot continue with demands for surrender when the person would be arrested by a State Party that has the obligation to respect the immunity granted to the person by a third State, that has not ratified the Rome Statute. An exception to this rule is where the third State waives the immunity of the person concerned. Also, because Article 98(1) explicitly concerns obligations arising from third States, the Article cannot be invoked when the Court requests the surrender of a national of a State that has ratified the Rome Statute. This situation only applies to personal immunities, because functional immunities never protect one from a prosecution for a core crime. When demands for extradition are linked to immunities granted by another State Party, then the person must be extradited anyway.

Another situation is where the United Nations Security Council functions under Chapter VII of the United Nations Charter to demand that a State not party to the Rome Statute collaborate with the International Criminal Court. This happened in the instance of Sudan and Omar al Bashir, the incumbent President of Sudan. Some have suggested that the Rome Statute is a treaty and therefore does not create obligations for non-member States. Also, the Rome Statute does not explicitly state that a referral of a situation by the United Nations Security Council leads to responsibilities for all United Nations Member States. This reasoning is correct in itself. But it fails to take into account that the responsibility to collaborate does not arise from the Rome Statute of the International Criminal Court, but the United Nations Charter, Chapter VII. It could be objected that the United Nations Security Council can only impose the invalidity of immunities in the context of jurisdictions that it has created itself. This would then not apply in the case of the International Criminal Court, only the ad hoc Tribunals. However, this objection is not supported by the United Nations Charter. Another objection may be that the responsibility to collaborate entirely that originates in the United Nations Charter pertains to Part 9 of the Rome Statute, but not Article 27 on the invalidity of immunities. However, the obligation to collaborate entirely included in the Resolutions establishing the ad hoc Tribunals has been interpreted as setting aside immunities. An additional objection may be that, while the above may be true, the United Nations Security Council Resolution on Sudan did not order all members of the United Nations to collaborate, but only the parties to the Sudan conflict. However, for the extradition of al Bashir this would have no practical effect. This is because Sudan, as a party to the conflict, was ordered by the Resolution to collaborate fully. Also, if al Bashir were to travel to a State not party to the Rome Statute, then he could probably still be apprehended by that State.

Concluding remarks

It is clear that immunities are being increasingly limited in their application when they could otherwise be used to avoid prosecution for international crimes. This is primarily so with functional immunity. Personal immunities are also being constrained, in the context of international jurisdictions. The law could be developed by more ratifications of the Rome Statute of the International Criminal Court, and by United Nations Security Council Resolutions obliging all Member States to collaborate with the Court. The law on personal immunities could be developed with respect to the questions who benefits and in what cases.

Substitutes and supplements for international criminal trials - Chapter 22

 

Preliminary remarks

In the last two decades international law has been greatly extended to combat impunity in favour of responsibility. While criminal trials may be beneficial in some respects, they might not be the best option in other respects. Therefore, alternative ways of handling international crimes have been put forward. These are discussed in this chapter. None of them are immediately perfect alternatives. And, of course, if particular measures can achieve what trials cannot, then that does not mean they are automatically the best reaction to international crimes. One size does not fit all; rather, one should be cautious to use lessons learned in one situation in another. The cultural, political, religious and economic circumstances of a situation affect what the best responses are. In addition, there are on-the-ground limitations such as monetary supplies, political possibilities, and the existent infrastructure. In the case of South Africa, for example, the drafting of its constitution for its post-apartheid period was influenced by choices that had to be made in terms of where the limited available resources would go – for instance, education and housing or claims relating to apartheid crimes. The legacy of the apartheid period and conditions of general under-development shaped the way the constitution was written and how funds were allocated.

However, discourses of urgency and feasibleness can also be misused. One argument in favour of having international criminal jurisdictions in addition to municipal jurisdictions is that international crimes have both local or municipal and international effects, with which international tribunals and courts can better deal. At least in discourse, the international community has asserted that international crimes are inadmissible. Not only transitional or hybrid societies must handle international crimes. Many officials and other persons who perpetrate international crimes are nationals of more developed, democratic and balanced States.

Amnesties

Perhaps the most famous and problematic substitution for trials are amnesties. They preclude criminal (or civil) proceedings against persons in the State in which they are granted. Amnesties have been granted for a long time. Notable examples are amnesties given in Latin American States and South Africa. Amnesties can take several forms. For example, they can be given by governments to themselves, or by a State's population. Most often, but not always, the latter kind of amnesties is deemed more reasonable. Blanket amnesties preclude proceedings against everyone, while other amnesties may demand particular actions first, such as a complete confession.

There are several arguments for the contention that amnesties are always contrary to international law. For instance, it can be argued that amnesties breach the responsibility to try international crimes. However, apart from treaty duties it is not always easy to demonstrate that there exists a responsibility to prosecute based on jus cogens, custom or human rights duties. Human rights organs such as the Human Rights Committee have also held that, generally, amnesties violate the duty to prosecute, even if they may be necessary for the restoration of peace. The International Criminal Tribunal for the former Yugoslavia has stated that the jus cogens interdiction of torture also means that there can be no amnesties for torture. Most radically, the Inter-American Court of Human Rights has stated unconditionally that all amnesties are illegal. This position has subsequently not been taken by other international jurisdictions. Article 6(5) of Additional Protocol II states that, after a non-international armed conflict has ceased, authorities must give the broadest possible amnesties. However, the International Committee of the Red Cross has affirmed that Article 6(5) does not relate to amnesties for international crimes. The United Nations officially opposes amnesties for international crimes. International law is moving towards the position that amnesties for international crimes are unacceptable, but has not reached this stage yet. It is thus still possible that international law can permit certain amnesties, but possibilities are narrowing.

Several preambulatory clauses of the Rome Statute of the International Criminal Court stress that there may be no impunity. These do not establish legal responsibilities. Nevertheless, domestically granted amnesties have no binding effect on the International Criminal Court. Rather, a State's inaction regarding crimes within the jurisdiction of the International Criminal Court may mean that the Court will try to prosecute. The Prosecutor of the International Criminal Court has not recognised amnesties in evaluating whether or not a prosecution would be in the interest of justice. Instead, the Prosecutor has rejected amnesties as such. The issue of amnesties is especially prominent in questions of peace versus justice. The Prosecutor has indicated that the International Criminal Court is not mandated to include considerations of peace. And the United Nations Security Council, a political organ, has the capability of postponing investigations and trials. This strategy can be seen as a reasonable way of emphasising the apolitical nature of the International Criminal Court, but also as a way of avoiding responsibility.

When an amnesty is granted, in a particular State, they do not bind other States. This is also the case when extraterritorial jurisdiction is exercised. Inter alia because of this, the Special Court for Sierra Leone affirmed that the United Nations' non-recognition of the amnesty covered in the Lomé Peace Accord of 1999 was not unlawful. The Court held that the exercise of universal jurisdiction cannot be hindered by amnesties. It acknowledged that amnesties do not negate custom, but held nevertheless that it could reject amnesties because they are controversial in international law. Also, the Special Court for Sierra Leone is not a domestic court that has to accept domestically granted amnesties. There are various ways in which the granting of an amnesty can play out in a State. This depends inter alia on the status of international law in the system, and the relation between the amnesty and international law. Many domestic legal systems are increasingly finding amnesties inapplicable, because they are for instance contrary to the constitution or not significant for a specific count. This has happened inter alia in Argentina and Chile.

Amnesties are problematic legally and as measures in the policy world. Arguments in favour of amnesties tend to assert that they are a prerequisite for ceasing conflicts and for ensuring that soldiers give up their weapons rather than continue hostilities. However, it can be objected that giving amnesties amounts to succumbing to blackmail and facilitating impunity. It can also be questioned whether amnesties actually lead to peace or whether they leave open the possibility that the same perpetrators will return to committing crimes. Moreover, if international criminal law practically discourages the commission of crimes at all, then this consequence is weakened by the possibility of amnesties. It is also said that victims or others outside the political elite are not involved in the process of deciding on amnesties. Blanket amnesties seem increasingly more unacceptable than conditional amnesties, that for example demand truth telling or confessions.

Theoretical arguments have been made that amnesties make settlements between the previously antagonistic parties easier. On the contrary, it has also been suggested that a society cannot progress from a situation of lawlessness unless a criminal justice system is restored. Neither of these contentions have been proven or disqualified in practice. Reconciliation is often dealt with loosely. It is both a societal and individual process, and is frequently based on Christian values that cannot automatically be universalised. In any case, people cannot be coerced to reconciliation. On the other hand, forgiveness and amnesties have gone hand in hand in some cases. Amnesties are also associated with processes whereby crimes are forgotten, relativised or denied. Indeed, amnesties do not necessarily produce disclosure of what happened in the past. Societal control can be based on (deliberate) twists of past events. This approach is not always successful; for example, in South America many organisations have for a long time highlighted the miseries of victims. Nevertheless, international law does not forbid all amnesties always. Sometimes there is political approval of them.

Truth commissions

Truth commissions are frequently attached to amnesties, in order to prevent that amnesties will result in oblivion. Truth commissions tend to be described as possessing the following four characteristics: they scrutinise the past; and more specifically, scrutinise a series of atrocities that occurred over some time, instead of one happening; they are non-permanent, and terminate their activities after the completion of a report; and they are formally endorsed by the State. Truth commissions tend to be established as a substitute (rather than complement) of trials, particularly when there may be a lack of evidence for trials. The rationale is often that more persons will be less reluctant to talk about their involvement in abuses. Truth commissions can serve as a better forum for victims to talk about their experiences than can tribunals or courts. A few truth commissions are mandated to suggest reforms. The significant parties usually determine what is going to be investigated and for how long.

One of the most important aims of truth commissions is to recognise the suffering that the victims underwent. This can undermine subsequent denials and support reconciliation and victims' recovery. It is possible that truth commissions are not permitted to deal with certain substantive issues relating to the abuses. The characteristics of the report rely partially on the quality of what the commission can access. There may be hardships in trying to convince both victims and perpetrators to participate. In the case of South Africa, some who declined to be witnesses were subsequently prosecuted. It is not always the case that there are truth commissions instead of trials; in Sierra Leone, the Truth and Reconciliation Commission functioned while the Special Court for Sierra Leone was also operating. The former was critical of the latter, and the connections between the two were edgy. The Truth and Reconciliation Commission of Liberia suggested trials for grave breaches of humanitarian or human rights law. Doubts have been raised as to whether truth commissions can represent an objective truth. They tend to be directed towards victims and do not have the procedural laws of tribunals and courts. There are also doubts as to whether processes of establishing the truth actually produces reconciliation or the capacity to deal with the past. Nevertheless, a majority would agree that truth is a component of reconciliation. In some cases, victims may come to hearings and talk about what the perpetrators have disclosed. In the light of this, there have been suggestions that truth commissions provide very good opportunities for victims to recover. In other cases people limited themselves to very factual testimonies, or used hearings for political purposes. Whether victims benefit from the process is determined by individual responses. However, in any case truth commissions are fundamentally political and risky. Governments may anticipate that by truth commissions a population will become satiated in terms of efforts at accountability. Truth commissions are regarded by some as a substitute for trials. This judgement is not very fair, however; they do not always fulfill the functions of trials, but instead achieve other aims, especially for victims. The success or otherwise of a truth commission relies for a large part on how well it is composed and enforced.

Purges

Purging, or lustration, involves the clearing of guilt of a public servant considered to have perpetrated a crime. Lustration can occur especially when the number of complicit persons is particularly high. It can be deemed a way of getting rid of guilty or inefficient employees. However, the primary aim tends to be a kind of discipline. Controversially, although it is meant as punishment, it is normally done on a very wide scale, without investigations into the exact responsibility of a person. Many persons may not meaningfully be engaged with crimes, but can be lustrated nonetheless on the basis of for example their membership of a political party. It can therefore be asked whether purges accord with human rights law. Contrarily to what occurred for example in Liberia, discipline should only be the product of a criminal trial, not lustration.

Civil claims and compensations

Compensations have been issued after the commission of international crimes. This has happened for instance in Germany and Argentina. Often there is a lack of funds to finance reparations, but their symbolic value is significant in itself. It can also be possible to make a civil claim against the perpetrators, either in the State with territorial jurisdiction or in another State. Famous in this regard is the United States of America with its Alien Tort Claims Act, which allows nationals not of the United States to make claims against particular perpetrators of international law. Successful claims can be very important to victims, as is proven by the many efforts by former comfort women to acquire reparations from Japan. Executing successful claims is often difficult, however, and the person who must pay needs to possess the money. Collecting evidence can be hard, and making the claim may be costly. Without resources such as legal help, victims may not be able to bring a claim. Monetary compensations may not mean as much to the victims as would a criminal conviction.

Local alternatives for international trials

International criminal law is increasingly aware of cultural diversity in its enforcement. Partially because of this reason there has been more and more attention for local justice instruments. These tend to have three core features. Firstly, they are oriented towards groups instead of individual persons. Secondly, their aim is to find middle grounds and achieve harmony. Thirdly, they prefer restoration over other kinds of discipline. The realities of local justice mechanisms are very diverse, however. Examples include the Rwandan gacaca prosecutions, that resemble formal jurisdictional prosecutions, and the Ugandan mato oput practice, which requires one to consume a particular kind of drink. It has also been suggested that the Truth and Reconciliation Commission of South Africa was inspired by local values of justice. Local instruments have much support because they are seen as having more legitimacy than formal instruments. They lead to communal entrance, ownership and effectiveness. There have, moreover, been arguments that local instruments offer a more inclusive reaction to abuses. The Prosecutor of the International Criminal Court has acknowledged the use of local justice instruments. Nevertheless, such initiatives should not always be idealised. They can be driven by governments, neglect human rights standards, and may reinforce local structures instead of meeting the necessities of everyone. They may not always be an apt instrument to deal with international crimes, for instance when victims have deceased or are unknown. Simultaneously, when choosing responses to atrocities it is not necessary that local justice instruments and international prosecutions are mutually exclusive.

The path forward - Chapter 23

 

Preliminary remarks

In the last two decades, international criminal law has advanced much faster than previously. Thus, no definitive evaluations can yet be made. Still, some contemporary developments and possible future developments are considered here.

International criminal jurisdictions

It is often asserted that the stimulus for reinforcing international criminal law was the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda. After it had been shown that such tribunals could be created relatively fast, deliberations changed from the question whether these tribunals were a good idea to the question in what ways they might be ameliorated. As has been discussed above, the ad hoc Tribunals have been condemned for their costliness and bureaucracy. However, they have also been quite successful and encouraged the establishment of an international criminal court. The evolution from the International Military Tribunal at Nuremberg to the International Criminal Court has been considered long, but ultimately successful. The International Criminal Court has been lauded has having the potential to ensure that all perpetrators of international crimes are held accountable. However, this optimism has been countered by a more distrustful realism about what such institutions can actually accomplish. The Rome Statute of the International Criminal Court does not establish a supranational implementation structure, nor does it have its own police force. Proceedings before the International Criminal Court may be very politically sensitive and encounter profound practical difficulties. Multiple States oppose the International Criminal Court. Nevertheless, as of January 2010 110 States had ratified the Rome Statute of the International Criminal Court.

Advancements in domestic trials of international crimes

By design, most international crimes are tried before domestic courts and tribunals rather than international ones. International criminal jurisdictions have been established because of the breakdown of domestic systems and they are not intended to replace such systems. Indeed, one important goal of international criminal jurisdictions is to encourage more successful domestic criminal justice efforts. Especially with reference to the International Criminal Court, international criminal law can only function successfully when domestic systems play a greater part in prosecuting international crimes. This is linked to the International Criminal Court's principle of the complementarity. The Court must thus ascertain that domestic systems prosecute international crimes. This has been taken into account in the mandate of the Prosecutor, who can transfer proof and knowledge. Quite some States that have ratified the Rome Statute of the International Criminal Court have also passed domestic laws criminalising the crimes over which the Court has jurisdiction.

Recently, universal jurisdiction has been increasingly attacked and subsequently curtailed. Universal jurisdiction has its supporters, but to actually enforce it in international law has proven increasingly difficult. There have been conspicuous exceptions, including the Eichmann trial. Also, universal jurisdiction is now present in the jurisdiction of more States than previously. This situation may have affected other States that, in anticipatory efforts to not extradite their nationals, have increasingly been trying international crimes perpetrated by their own nationals. Universal jurisdictions has also been exercised in some cases. However, it remains politically very controversial.

States have had significant difficulties in collaborating with each other in attempts at trials of international crimes. Hopefully, these difficulties will be overcome with the completion of new (regional) instruments on collaboration between States.

Another still underdeveloped area is that of immunities. It is telling in this regard that the African Union strongly disapproved of the indictment against the serving President of Sudan, Omar al Bashir. In Yerodia, the International Court of Justice noted that international criminal trials still have to take some kinds of immunities into account. Domestic jurisdictions have also affirmed the continued partial survival of immunities. Thus international criminal law does not generally have precedence over immunities.

Evolution towards holding perpetrators responsible

The creation of the International Criminal Court as an institution is important in itself. But it also mirrors a cultural switch to increasing support for accountability. Two decades ago international law could not international crimes to the extent of which it is capable today. The core notion of the ad hoc Tribunals, that of responsibility for international crimes, thus has become more widely established. It has been favoured by multiple States and non-governmental organisations. The various international criminal jurisdictions are currently confronting States to ascertain how they treat criminal justice in their foreign policies. The notion of criminal justice is now ingrained in United Nations policies. This does not automatically result in a specific response, but at least it shows that the United Nations too has been relinquishing the culture of impunity. The United Nations Security Council has also become supportive of the advancement of international criminal law.

The perceived peace versus justice dilemma has played a significant role in the first cases before the International Criminal Court. Sometimes there has been criticism of warrants that were considered detrimental to the development of peace. The duty to engage in questions of peace and justice is the international community's, and if trials should be postponed to the benefit of peace, then the United Nations Security Council should seek a deferral. The application of international criminal law is still sometimes seen as arbitrary, which many allegations that the International Criminal Court focuses too much on Africa. Nevertheless, this arbitrariness has perhaps decreased, and having some trials is better than none at all. Also in this regard it is important that more States ratify the Rome Statute of the International Criminal Court in the future. It is expected that with the augmented acceptance of international criminal law, States will, at least discursively, interiorise its norms and change policies according to such norms. Thus the willingness to prosecute international crimes is likely to grow. It has been noted that the growth of international criminal law may mean that liability for States will be found less important. However, in cases where the act or omission can be attributed to a State, individual liability does not exclude State liability. Besides, the notion of State liability has not resulted in much accountability. It is worth to recall here also that the Judgement of the International Military Tribunal at Nuremberg affirmed that crimes are perpetrated by persons, not by theoretical objects.

The evolution of international criminal law

International criminal law, having been only recently established, is not a perfected system of law. Nor does it wish to co-opt municipal criminal proceedings. Its incongruities are a product of the political character of the talks that establish international criminal laws and jurisdictions. International criminal law, including the International Criminal Court, can continue to develop and improve. It is possible that there are multiple systems of international criminal law before different jurisdictions. This can make it harder to ascertain what customary international law on a particular issue holds. There are also significant, substantive differences between the Statutes of the ad hoc Tribunals on the one hand and the Rome Statute of the International Criminal Court on the other. Moreover, differences exist between domestic criminal law systems and international criminal law. It is important to take into account the comparative authority of different sources of law when determining custom.

This importance is clearly visible in the debate about the extent to which the bodies of law on international armed conflicts and non-international armed conflicts should be conflated. With regard to the use of weapons, the International Criminal Tribunal for the former Yugoslavia has considered it absurd that the law on non-international armed conflicts should be more lenient than the law on international armed conflicts. Still, the Tribunal has also acknowledged that not all laws on international armed conflicts could be used in a non-international setting. Nevertheless, a strong argument can be made that the two bodies of law should be conflated.

Another realm in which the law could be substantially altered is the differentiation between crimes against humanity and war crimes. It has been argued that these two crimes should be unified. The circumstantial elements of these crimes overlap, but are different nonetheless. This would thus be an argument against the unification of crimes against humanity and war crimes. However, their amalgamation could come to cover some kinds of conduct that is currently not criminalised, for instance causing mass starvation with intent.

Another example of potential development is the possibility of corporate criminal liability. Of course, the ad hoc Tribunals and the International Criminal Court can only prosecute natural persons. But during the Rome Conference there was much backing for the idea of expanding the jurisdiction of the International Criminal Court to include corporate liability. Corporations are often involved in fueling the commission of international crimes, and accountability for such crimes could therefore be augmented by creating corporate criminal liability for international crimes.

At the first Review Conference of the Rome Statute of the International Criminal Court there will be opportunities of including new crimes in the Rome Statute. This could ameliorate the substantive legal rules of the Rome Statute. However, given the tendency of international criminal law to develop rapidly and then not meet expectations, it is implausible that important amendments will be made. Definitions of terrorism and aggression are considered controversial.

The future of international criminal law

In terms of ad hoc tribunals, international criminal law may have arrived at the end of an age. Criticisms of the two ad hoc Tribunals have been compelling. It is a turning point that the situation in Darfur was referred to the International Criminal Court instead of that it was sent to a special ad hoc Tribunal. Because the Rome Statute of the International Criminal Court only came into force in July 2002, nothing can yet be said about the achievements of the Court in general. Contrarily to the ad hoc Tribunals, the International Criminal Court does not possess strong powers and unequivocal support of the United Nations Security Council. However, there is much more recognition of international criminal law now then when the ad hoc Tribunals were created. It is to be hoped that antagonism to the International Criminal Court will decrease and that it will be capable of addressing grave atrocities. This will demand that the Prosecutor work objectively and that the decisions of the Chambers are of a high quality. Additionally, the International Criminal Court depends greatly on States' collaboration and implementation. This takes various forms, including apprehension of the suspect, transfer of proof and imprisonment of person who have been found guilty. The International Criminal Court must also have sufficient resources at its disposal. Still, it should be borne in mind that domestic trials have many benefits that international trials do not have. For example, domestic proceedings allow more victims to observe the trial, and sentences can be locally implemented. The preferable way of ensuring maximum accountability for international crimes would be to ensure that international and domestic criminal jurisdictions combine their powers.

As has been mentioned above, several broad aims have been attributed to international criminal law. These include documenting history, settling conflicts in societies and recording the experiences of victims. However, these supposed goals are not always attained in the light of the central question of criminal trials, namely regarding the guilt or innocence of a person. Indeed, history may sometimes not be accurately represented by criminal proceedings. The fact that international jurisdictions can only take up a limited number of situations and cases means that possibilities for truth-telling and recounting the experiences of victims are further reduced. Further studies must be done on ways in which justice can be delivered outside of courts and tribunals, and on how such non-judicial mechanisms can relate to international or domestic trials.

It is important to realise that international criminal jurisdictions function in an international arena composed of sovereign States. Not all of them recognise the rule of law of international affairs, including the precedence of international law over domestic law. This situation potentially undermines the systematic and neutral implementation of international criminal law. It is linked to the question whether the collection of sovereign States is really an international community – which is controversial. Nevertheless, until the 1990s the realm of international criminal law was deemed irrelevant by most. Currently it is a substantial field of practice and theory.

International Criminal Law and Procedure van Cryer e.a - Glossary

Active nationality/personality principle:The right of a State to pass laws that apply to its nationals who are not on its territory.
Actus reus:See 'Material element.'
Adjudicative jurisdiction:The power of municipal courts to enforce the laws of the State and to give judgements.
Affidavit evidence:Evidence in the form of a written statement declared under oath.
Amicus curiae:

A State, person or organisation that is not party to a trial but provides information to a court concerning that trial without necessarily having been requested thereto by either of the parties.

Aut dedere, aut judicare:

The principle that States must either prosecute or extradite suspects of international crimes.

Automatic jurisdiction model in the context of the International Criminal Court:A State that has ratified the Rome Statute of the International Criminal Court thereby automatically accepts that the Court has jurisdiction over the crimes included in the Rome Statute.
Black letter law:Law that is written down in a document.
Civilian:Non-combatant.
Civitas maxima:An international community.
Complementarity principle:The International Criminal Court may only exercise its jurisdiction where States are unwilling or unable to do so.
Concurrence of crimes:

A situation in which one act or omission can be characterised as more than one crime.

Customary international law:

Laws that emanate from the practice of States together with their opinio juris.

Dolus specialis:Specific intent. There is a specific intent required for a conviction for genocide in international law.
Domestic:Related to a State.
Double criminality:For an extradition to take place, the given conduct must be criminalised in both the applying and the requested State.
Double jeopardy:See 'Ne bis in idem principle.'
Dual criminality:See 'Double criminality.'
Erga omnes obligation:

A responsibility towards all States.

Ex post facto:After the fact (for example after the commission of a material element).
Executive jurisdiction:The right of a State to claim jurisdiction by coercion, such as arrests or by embarking on searches.
Extradition:

The submission of an individual person by and from a State to another.

Extraterritorial jurisdiction:The authority of a State to manage affairs according to its laws outside of its territory.
Hors de combat:Outside of combat.
In dubio pro reo:

The accused must be found innocent in cases where there is doubt about whether the prosecution has proven the guilt of the accused.

Jus ad bellum:The law governing resort to armed conflict.
Law of nations:Public international law.
Legality principle:See 'Nulla poena sine lege' and 'Nullum crimen sine lege.'
Legislative jurisdiction:A State's right to enact laws.
Lex lata:

What the law is (as opposed to lex ferenda, what the law should be).

Jus cogens:Peremptory norm.
Jurisdiction:The authority of a State to manage affairs according to its laws.
Male captus bene detentus principle:

Errors in the arrest or capture of an accused do not, usually, preclude proceedings against that accused.

Material element:The part of a crime that constitutes its physical act.
Mens rea:See 'Mental element.'
Mental element:The part of a crime that constitutes the 'guilty mind.'
Nationality principle:The right of a State to pass laws that apply to its nationals who are not on its territory.
Ne bis in idem principle:A person cannot be tried or convicted more than once for the same facts.
Non-retroactivity principle:

A limitation period may not be discarded or extended.

Nulla poena sine lege:A person cannot be punished unless there is a law that provides for punishment.
Nullum crimen sine lege:

A person cannot be convicted unless at the time of the commission of the person's acts such acts were prohibited by law.

Municipal:See 'Domestic.'
Opinio juris:The belief of States that certain conduct is required or allowed by international law.
Passive personality principle:A State may exercise jurisdiction over cases in which crimes were committed against their own nationals, while these nationals were not on the territory of said State.
Principal perpetrator:The perpetrator of a crime who carries out the essential physical act, for example pulls the trigger.
Principle of distinction:Belligerents must differentiate between the population and objects on the one hand and military targets on the other, and to aim only for military targets.
Sovereign equality principle:

All States are equal in their sovereignty. A State is thus barred from engaging in the affairs over which another State has exclusive sovereignty without the latter's approval.

State practice:The uniform or similar conduct of a number of States with respect to a given question. The higher the number of States that act similarly, the stronger the argument for the existence of State practice. One of the required elements for customary international law.
Statutes of limitation:See 'Statutory limitations.'
Statutory limitations:Set limitations on the time that may pass between the alleged commission of a fact and the prosecution thereof.
Territorial jurisdiction principle:The State on whose territory a crime occurred must prosecute that crime.
Travaux préparatoires:

The records of the preparations of a treaty, which can be used to help interpret that treaty.

Universal jurisdiction:A State's jurisdiction over a crime without regard to territory, the nationality of the suspect or victims or any other specific connection linking the crime and the State asserting jurisdiction.
Universal jurisdiction in absentia:Exercise of universal jurisdiction while the suspect is not physically before the court.

 

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