Lecture 4: The Role of the International Criminal Courts

Lecture 4 - The Role of the International Criminal Courts/Tribunals

• Lecture by Isabel Düsterhöft, LL.M., M.A.
• Email: [email protected]
• Also presented by Satoshi Kambayashi

Outline

• Introduction to international criminal law
• International crimes
• International criminal ad hoc tribunals (ICTY and ICTR)
• Hybrid tribunals (SCSL, ECCC, STL, KSC)
• Selection of cases of the ICTY and ICTR

International & Criminal Law

• International law: Rights and obligations of States
• Criminal law: Prohibitions addressed to individuals; violations subject to penal sanction by a State
• International criminal law: Imposes responsibilities directly on individuals; punishes violations through international judicial mechanisms

Sources of ICL

• Treaties: (e.g., 1907 Hague Regulation, 1948 Genocide Convention, 1949 Geneva Convention)
• Statutes: (e.g., ICC Rome Statute)
• Customary international law
• General Principles of Law: Multiple major legal systems worldwide
• Principles and rules of law: Interpreted in previous decisions (case law)
• International and domestic case law
• Writing of scholars
• Soft law (less influential)

International Justice in the 20th Century?

What are International Crimes?

• Crimes against humanity
• War crimes
• Genocide
• Crime of Aggression (ICC)

Genocide (ICC RS Art. 6)

• Acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such:
  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • Imposing measures intended to prevent births within the group
  • Forcibly transferring children of the group to another group

Crimes against Humanity (ICC RS Art. 7)

• Acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
  • Murder
  • Extermination
  • Enslavement
  • Deportation or forcible transfer of population
  • Imprisonment or other severe deprivation of physical liberty
  • Torture
  • Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity

War Crimes (ICC RS Art. 8)

• The Court has jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  • Grave breaches of the Geneva Conventions of 12 August 1949
  • Other serious violations of the laws and customs applicable in international armed conflict
  • In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949
  • Other serious violations of the laws and customs applicable in armed conflicts not of an international character (outside the framework of international law)

What is the Purpose?

• Retribution: Necessity of punishment; Perpetrator-focused
• Deterrence: Future-related benefits of prosecution; Prevent engagement in prohibited conduct
• Incapacitation: Prevent crimes by keeping relevant person in detention; Future-looking
• Rehabilitation: Reformation of the offender; Human rights element
• Denunciation/Education: Opportunity to communicate with offender, wider society; Understanding 'wrongdoing'; Reaffirming norms; educating society

Wider Goals

• Vindicating Rights of Victims: Sense of justice, closure, ICC; questionable effect
• Recording History: Truth telling, permanent record of crimes, writing history; highly criticized
• Post-Conflict Reconciliation: Societal reconciliation for durable peace; "No peace without justice," many doubts

Where are International Crimes Prosecuted?

• International courts and tribunals.
• National (domestic) courts.

Nuremberg

• 24 Nazi leaders prosecuted for crimes of aggression, war crimes, and crimes against humanity.
  • 12 sentenced to death
  • 3 acquitted
  • 7 sentenced to imprisonment

Nuremberg Charter's Principles

• Any person who commits or is an accomplice in the commission of an act which constitutes a crime under international law is responsible therefore and liable to punishment.
• The fact that a person who committed an international crime acted as Head of State does not free him/her from responsibility under international law or mitigate punishment.
• Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Nuremberg Principles

• Individual criminal responsibility
• International law can criminalize acts
• No Head-of-State immunity
• No defense of superior orders
• Right to a fair trial
• Criminalize aggression, crimes against humanity, and war crimes
• Complicity is a crime

Tokyo

• Tokyo IMT set up in January 1946 by General Douglas MacArthur
• 28 defendants
• Trial lasted 2.5 years
• 7 sentenced to death
• 1 to 20 years imprisonment
• 1 to 7 years imprisonment
• Rest to life imprisonment

Criticism of Nuremberg and Tokyo Tribunals

• Violation of the principle of legality?
• Violation of the doctrine of state sovereignty?
• Victor's justice? (Hiroshima, Nagasaki, Dresden)

Test your knowledge of international criminal law concepts, including genocide, crimes against humanity, and war crimes. This quiz will challenge you on definitions, key characteristics, and the roles of various legal mechanisms and tribunals under international law. Perfect for law students and professionals interested in the field!