International Criminal Law

Introduction to International and European Criminal Law

• International Criminal Law (ICL) is a new field, especially in German countries, focusing on international crimes.
• European Criminal Law is a younger subject with limited competences, previously relying on treaties (public international law).

Definition and Sources of ICL

• Public International Law: relations between states, governing the conduct, rights, and obligations of states and international organizations.
• Criminal Law: deals with the rights and responsibilities of individuals.
• International Criminal Law: a new body of law, placing international criminal responsibility on individual persons.
• Sources of ICL: international treaties, ICJ (Art 38), customary law (clear and accessible).

Key Principles of ICL

• Non-retroactivity (nullum crimen sine lege): no crimes without a written law, but not necessarily applicable in public international law.
• Ne bis in idem: no double jeopardy.

Aims and Objectives of ICL

• Lead to the prosecution of international crimes.
• Protection of peace, security, and well-being of the world (Rome Statute).
• Retribution, retribution theories, and utilitarian theories (deterrence, incapacitation, rehabilitation, denunciation, restorative justice).

Jurisdiction and Prosecution

• Jurisdiction: the power of the state to regulate affairs pursuant to its laws.
• Prosecution of international crimes: primarily the job of national courts, but the ICC is a complementary court.
• Jurisdiction types: territoriality, nationality, passive personality, protective principle, universal jurisdiction.

Universal Jurisdiction

• Unconditional universal jurisdiction: allows a state to prosecute individuals for certain serious crimes regardless of connection to the state.
• Conditional universal jurisdiction: requires a connection to the state seeking to prosecute the crime.
• Legal and practical challenges: sovereignty, diplomatic relations, fair trial guarantees, and practical problems.

National Prosecution

• National prosecution of international crimes: primary responsibility, but often selective and limited by intern legal expertise and resources.
• Human rights law obligations: investigation and prosecution of grave breaches.

International Courts and Tribunals

• Early attempts: Treaty of Versailles, Treaty of Sèvres, International Military Tribunal (Nuremberg Trial).
• ICTY and ICTR: practical problems, lack of cooperation, and safe havens.
• ICC: established by the Rome Statute, only permanent court prosecuting international crimes, with a structure similar to ICTY and ICTR.

ICC Jurisdiction and Crimes

• Jurisdiction: after July 1, 2002, for crimes committed in states that are party to the Rome Statute.
• Crimes: crimes against humanity, war crimes, genocide, and aggression (defined in 2010).
• Principle of complementarity: the ICC only intervenes if national courts are unable or unwilling to investigate and prosecute.

ICC and Ukraine-Russia Conflict

• Ukraine is not a member state, but recognizes the ICC's jurisdiction.
• Russia is not a member state and has not recognized the ICC's jurisdiction.
• Aggression and war crimes in Ukraine: unjustified invasion, conflict, and war crimes.
• ICC arrest warrants: issued against President Vladimir Putin and Russia's Commissioner for Children's Rights Maria Lvova-Belova.### International Criminal Law
• Conditions for success: impartiality, expertise, decisions based on law, protection of victims and witnesses, and sufficient budgetary resources.

War Crimes and International Criminal Law

• War crimes originate from the "laws and customs of war".
• Genocides and crimes against humanity evolved to protect persons from human rights abuses.
• International criminal law is a developing field, with different definitions and utility.

Sources of International Criminal Law

• Treaties (e.g. 1907 Hague Regulations, 1949 Geneva Conventions, 1948 Genocide Convention)
• Customary international law (accepted by the ICTY and ICTR)
• General principles of law (used by the ICTY to assist in its search for applicable rules)
• Judicial decisions (ICTY and ICTR frequently relied on each other's case law)

Punishment and Justifications

• Retribution (focus on the necessity of punishing those who have violated societal norms)
• Deterrence (focus on the future-related benefits of prosecution)
• Incapacitation (links to individual deterrence, seeks to prevent crimes by keeping the relevant person in detention)
• Rehabilitation (the point of criminal sanctions is reformation of the offender)
• Denunciation (opportunity for communication with the offender, the victim, and wider society)

Goals of International Criminal Justice

• Vindicating the rights of victims
• Recording history
• Post-conflict reconciliation
• Further asserted benefits of international trials (e.g. distance from political manipulation, international judges)

Critiques of International Criminal Justice

• Expensive and inaccessible to victims
• Inequalities in the selection of cases (selective justice)
• May not comprehend large-scale international crimes

International Criminal Court (ICC)

• Principle of complementarity (ICC acts as a court of last resort)
• Admissibility of cases (ICC may declare a case inadmissible if it is being investigated or prosecuted by a state with jurisdiction)
• Assessment of unwillingness and inability of a state to genuinely investigate and prosecute

International Criminal Tribunal for the former Yugoslavia (ICTY)

• Established in 1993 by the UN Security Council
• Jurisdiction: genocide, crimes against humanity, and war crimes committed in the former Yugoslavia
• Notable cases: Slobodan Milošević, Radovan Karadžić, Ratko Mladić
• Impact: contributed to the development of international criminal law, particularly regarding genocide, war crimes, and crimes against humanity

International Criminal Tribunal for Rwanda (ICTR)

• Established in 1994 by the UN Security Council
• Jurisdiction: genocide, crimes against humanity, and war crimes committed in Rwanda
• Notable cases: Jean-Paul Akayesu, Théoneste Bagosora, Augustin Bizimungu
• Impact: established legal precedents for the prosecution of genocide and crimes against humanity

Legacy and Contributions

• Precedent setting
• Accountability
• Victims' rights
• International cooperation

International Residual Mechanism for Criminal Tribunals (IRMCT)

• Established in 2010 to ensure the continued functioning of the ICTY and ICTR
• Mandate: remaining judicial work, protection of witnesses, enforcement of sentences, tracking fugitives, management of archives, and handling contempt cases### Gacaca Courts

Background

• The 1994 Rwandan genocide resulted in the deaths of over 1 million people, approximately 14% of the population.
• Post-genocide Rwanda faced the challenge of bringing numerous perpetrators to justice with a decimated criminal justice infrastructure.

Purpose and Objectives

• The Gacaca courts were established to address the vast number of genocide-related crimes and to promote reconciliation at the grassroots level.
• Aimed to expedite the judicial process given the overwhelming number of cases.
• Sought to foster national unity and reconciliation by involving local communities in the justice process.

Structure and Process

• Judges were elected from the local community based on their integrity and moral standing.
• Trials were conducted in public settings, encouraging community involvement and confessions.
• Divided offenses into categories, with Category 1 including planners and leaders of the genocide and Category 3 involving property crimes.

Outcomes

• Handled nearly 2 million cases over a decade.
• Sentences varied from community service to life imprisonment, with a focus on confessions and public apologies.
• Mixed results in terms of community involvement and reconciliation, with successes in community involvement but criticisms regarding procedural fairness and reparations.

Criticisms

• Issues with impartiality, lack of legal representation, and potential biases.
• Inadequate mechanisms for compensating victims, leading to dissatisfaction among survivors.

International Criminal Tribunal for Rwanda (ICTR)

Purpose and Objectives

• Established by the United Nations to prosecute those responsible for serious violations of international humanitarian law during the 1994 genocide.
• Focused on prosecuting high-level planners and executors of the genocide.

Structure and Process

• Composed of judges and prosecutors from various countries, with extensive legal expertise.
• Followed international legal standards, including rights to defense, appeal, and due process.
• Based in Arusha, Tanzania, away from Rwanda, to ensure neutrality and security.

Outcomes

• Prosecuted 93 individuals, focusing on top leaders and masterminds.
• Imposed lengthy prison sentences, including life imprisonment.
• Established important legal precedents for the prosecution of genocide and international crimes.

Criticisms

• High operational costs and slow pace of trials.
• Perceived as distant and detached from the Rwandan population, with limited direct impact on local reconciliation efforts.
• Focus on high-profile cases left many lower-level perpetrators unaddressed.

Comparison of Gacaca Courts and ICTR

Scope and Reach

• Gacaca courts handled a vast number of cases at the community level, involving local populations directly in the justice process.
• ICTR focused on high-level perpetrators with fewer cases but significant international legal impact.

Legal Standards and Fairness

• Gacaca courts faced criticisms for lack of legal representation, potential biases, and inconsistent procedures.
• ICTR adhered to international legal standards, ensuring fair trial rights and due process.

Impact on Reconciliation

• Gacaca courts aimed at fostering reconciliation through community involvement, with mixed results regarding actual reconciliation and reparation for victims.
• ICTR contributed to international justice and set legal precedents but had limited direct impact on local reconciliation in Rwanda.

Operational Costs

• Gacaca courts were relatively low-cost due to local implementation and volunteer judges.
• ICTR had high operational costs due to international staffing, security, and logistics.

Legacy

• Gacaca courts left a complex legacy of community justice with significant achievements and notable shortcomings.
• ICTR left a legacy of important legal precedents and international accountability, despite criticisms of cost and efficiency.