Fundamentals Of International Criminal Law 2023-24 PDF

INTERNATIONAL CRIMINAL LAW (history and fundamentals) Principles of Criminal Law 2023-24 What is International Criminal Law (ICL)? “The criminal law of the international community” A “hybrid” between: - Public international law (sources) - Criminal law (punishment of individuals) → ICL entails...

INTERNATIONAL CRIMINAL LAW (history and fundamentals) Principles of Criminal Law 2023-24 What is International Criminal Law (ICL)? “The criminal law of the international community” A “hybrid” between: - Public international law (sources) - Criminal law (punishment of individuals) → ICL entails legal provisions prescribing individual criminal responsibility under international law Jurisdiction (principle of complementarity): - International Criminal Tribunals and Courts - National Courts (if stated by national criminal law) INTERNATIONAL CRIMES “Core” Crimes 1) War crimes 2) Crimes against humanity 3) Crimes against peace (now: crimes of aggression) Genocide as “autonomous” crime (wilful destruction of a protected group) INTERNATIONAL CRIMES Common features: 1. «Universal» crimes (mala in se, not mala quia prohibita) 2. Protection of international legal interests (peace, security and well-being of the world) 3. Requiring contextual elements (e.g. being committed as part of an extensive or systematic attack against the civilian population, or within an armed conflict) Often multi-subjective Exceptions to ordinary criminal law rules (eg non-applicability of statute of limitations; irrelevance of official capacity) SOURCES OF ICC 1. TREATIES AND CONVENTIONS (e.g. Rome Statute) 2. CUSTOMARY INTERNATIONAL LAW 3. GENERAL PRINCIPLES OF LAW recognized by civilised Nations 4. National and International Judicial decisions (see: Article 21, Statute of Rome) PRINCIPLE OF LEGALITY Art. 22 (Statute of Rome). Nullum Crimen sine Lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. Art. 23. Nulla Poena sine Lege A person convicted by the Court may be punished only in accordance with this Statute. HISTORICAL EVOLUTION IWW: Versailles Treaty (1919), article 227: the attempt to prosecute Kaiser Wilhelm II "The Allied Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial". Leipzig Trials IIWW: Military Tribunals of Nuremberg and Tokyo NUREMBERG TRIAL o Charter of the International Military Tribunal (IMT), signed in London on 8 August 1945 (annexed to the London Agreement) o Each of the four Allied countries (USA, France, Russia and Great Britain) provided one judge and an alternative, as well as a prosecutor, assisted by a team of experts o Prosecuted crimes: i) crimes against peace; ii) war crimes; iii) crimes against humanity o Trial of the major war criminals (20 November 1945 – 1 October 1946) 24 indictments with 22 prosecutions; 3 acquittals; 12 death sentences; 3 life imprisonment sentences; 4 prison sentences (from 10 to 20 years) NUREMBERG TRIAL CONTROVERSIAL ISSUES 1. Violation of non-retroactivity? 2. Obedience to superior’s orders → Radbruch’s formula: formally enacted and social effective norms lose their legal character or validity when they are extremely unjust 3. Justice of the victors? ACHIEVEMENT The criminalisation of the worst violations of human rights became part of the international legal system NUREMBERG TRIAL’S PRINCIPLES Established principles: 1. Individual criminal responsibility for international crimes: even if the conduct does not violate the law of the country where it was committed 2. Nor exemptions or mitigation for Heads of state or public officials 3. Acting upon a superior’s order does not exclude punishment 4. Right to a fair trial TOKYO TRIBUNAL International military tribunal for the far east (IMTFE) Established by a special proclamation of General Douglas MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials). Operated from 1946 until 1948 All 28 defendants were convicted (7 death sentences) SECONDARY NUREMBERG TRIALS - before the Allies’ military tribunals (not international military tribunals) - Control Council Law N. 10 of 20 December 1945 - 12 trials before American tribunals (1946-1949): 177 defendants, 26 death sentences, 20 life imprisonment, 98 prison sentences (up to 25 years) PHASES OF INTERNATIONAL CRIMINAL LAW 1. Military Tribunals (after IIWW) 2. The «age of codification» 3. Ad hoc Tribunals and the International Criminal Court (after the Cold War) AGE OF CODIFICATION 4 Geneva Conventions (1949) and 2 additional protocols (1977) Convention on the Prevention and Punishment of the Crime of Genocide (1948); Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968); UN International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) UN Convention against torture (1984) AD HOC TRIBUNALS: ICTY AND ICTR 1. International Criminal Tribunal for the former Yugoslavia (ICTY) 2. International Criminal Tribunal for Rwanda (ICTR) Established by the United Nation Security Council (with 2 resolutions) a) ICTY → resolution 827 of the 25 May 1993 («an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since [1 January] 1991») b) ICTR → resolution 955 of 8 November 1994 (for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994) - Legal basis: Chapter VII of the United Nations Charter ICTY AND ICTR Similarities with the Nuremberg and Tokyio military tribunals: Ex post facto trials Ad hoc tribunals Differences: Pre-existing crimes: already established principles of individual responsibility and already existing ‘codification’ of international crimes Established by UN (not “justice of the victors”) ICTY AND ICTR ICTY: Location: The Hague (Netherland) Operated from 1993 till 2017 161 individuals were indicted; 90 were convicted ICTR: Location: Arusha (Tanzania) Operated from 1995 till 2015 93 indicted, 62 convicted Akayesu (ICTR): first conviction for genocide in history Internationalised Domestic Tribunals («mixed Tribunals») Special Court for Sierra Leone (SCLS) Special Panel for Serious Crimes (SPSC) of Timor Est Extraordinary Chambers in the Courts of Cambodia (ECCC) Extraordinary African Chambers of Senegal ▪ Starting from late 90s ▪ «mixed» composition (partly local, partly international) ▪ Established by domestic statutes, based on bilateral agreements with UN TRANSITIONAL JUSTICE Mechanisms to deal with historical periods of transition «Coming to terms» with the past ICL is part of Transitional Justice (but it does not exhaust it) Punitive approach vs non-punitive mechanisms (e.g. truth commissions, reparations for victims or public apologies, memorial sites or memorial days, …) «Retributive» vs «Restorative» justice → reconciliation with the victim Eg. Truth and Reconciliation Commission in South Africa INTERNATIONAL CRIMINAL COURT (ICC) Statute of the International Criminal Court (Statute of Rome) approved in Rome the 17th July of 1998 (120 States: multilateral agreement) entered into force in 2002, after the 60th ratification Effort of codification: international crimes; general principles (such as: nullum crimen, nulla poena sine lege: Art. 22 and 23 ICC ST; non-retroactivity: Art. 24 ICC); general rules of criminal law; sanctions (detention, life imprisonment, fine, confiscation) INTERNATIONAL CRIMINAL COURT (ICC) The Court: based in The Hague Permanent Court and ordinary jurisdiction (over crimes committed AFTER the entry into force of the Statute in the territories or by the citizens of the member States) Universal vocation (though not universal jurisdiction) States that voluntarily join the ICC system, by ratifying the treaty, accept a limitation of their sovereignty in the exercise of criminal jurisdiction 123 member States. BUT: the most powerful States are not member states (I.e. United States of America, Israel, India, Russia, China) INTERNATIONAL CRIMINAL COURT (ICC) Composition of the Court 18 judges - nine years - nationals of the States parties to the Rome Statute (there cannot be two judges who are nationals of the same state) - “persons of high moral character, impartiality and integrity who possess the required qualifications in their respective states for the highest judicial offices” INTERNATIONAL CRIMINAL COURT (ICC): JURISDICTION JURISDICTION Three requirements: 1. Ratione materiae: «The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression» (Article 5 ICC St) 2. Ratione temporis: «The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute» (Article 11 ICC St) 3. Ratione loci: crimes committed a) in the territory or 2) by a national of a member State (Article 12 ICC St) PRINCIPLES OF JURISDICTION The issue of determining jurisdiction: in case of transnational crimes, which rules are applicable and which State has the right to prosecute the crime? Risks to avoid: 1) Violation of the “ne bis in idem” principle (no person shall be punished twice for the same crime) 2) «Forum-shopping» among different jurisdictions (the offender choses the most favourable) PRINCIPLES OF JURISDICTION General principle of jurisdiction = Meaningful (or genuine) link: when a case has a meaningful link to a certain country, then that country can have jurisdiction to carry out the proceedings for that crime Every country has its own list of principles of jurisdiction PRINCIPLES OF JURISDICTION 1. Territorial principle: a State is entitled to claim criminal jurisdiction over crimes that occurred within its national territory (locus commissi delicti) 2. Nationality principle: every offender is subject to his/her national legal order 3. Protective principles: State jurisdiction over all offences that violate or endanger its domestic legal interests. 2 sub-principles: a) Protective principle (stricto sensu): e.g. crimes against State security, bribery, corruption, environmental crimes, political crimes b) Passive personality principle: State jurisdiction when the victim is a national or a permanent resident of the country 4. Universality principle: every state is entitled to exercise jurisdiction over certain offenses without regard to the location of the offence, the nationality or domicile of the perpetrator or the victim Trigger mechanisms (Article 13) 1. REFERRAL OF A SITUATION BY A STATE PARTY The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14 Article 14. «A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.»  Trigger mechanisms (Article 13) 2. MOTU PROPRIO The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 15: «1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. Rome Statute of the International Criminal Court 12 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.»  Trigger mechanisms (Article 13) 3. REFERRAL BY THE UN SECURITY COUNCIL The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations»  PRINCIPLE OF COMPLEMENTARITY ICC is “complementary” in nature the States have primary jurisdiction ICC is empowered to intervene if the State is unwilling or unable to prosecute the crimes for which it is competent Compromise between opposite interests: preserving States’ sovereignty and avoiding impunity  PRINCIPLE OF COMPLEMENTARITY The State is “unwilling” to investigate or prosecute when… (Article 17) (a) The national proceedings were made for the purpose of shielding the person concerned from criminal responsibility; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not conducted independently or impartially.  PRINCIPLE OF COMPLEMENTARITY The State is “uncapable” to investigate or prosecute … (Article 17) Due to a total or substantial collapse or unavailability of its national judicial system (factual or judicial incapacity), the State is unable to: obtain the accused; obtain or the necessary evidence and testimony; otherwise carry out its proceedings.