International criminal law

History

Some precedents in international criminal law can be found in the time before World War I. However, it was only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of Germany. In the event, however, the Kaiser was granted asylum in the Netherlands. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (the International Military Tribunal for the Far East). It operated from 1946 to 1948.

After the beginning of the war in Bosnia, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission had commenced preparatory work for the establishment of a permanent International Criminal Court in 1993; in 1998, at a diplomatic conference in Rome, the Rome Statute establishing the ICC was signed. The ICC issued its first arrest warrants in 2005.

The importance of prosecuting international crimes

The prosecution of severe international crimes—including genocide, crimes against humanity, and war crimes—is necessary to enforce international criminal law and deliver justice to victims.

This is an important component of transitional justice, or the process of transforming societies into rights-respecting democracies and addressing past human rights violations.

Investigations and trials of leaders who have committed crimes and caused mass political or military atrocities is a key demand of victims of human rights abuses. Prosecution of such criminals can play a key role in restoring dignity to victims, and restoring trusting relationships in society.

The International Criminal Court, as described below, can play an important role in prosecuting international crimes in cases where domestic courts are unwilling or unable to do so.

Institutions of international criminal law

Today, the most important institution is the International Criminal Court (ICC), as well as several ad hoc tribunals:

Apart from these institutions, some "hybrid" courts and tribunals exist—judicial bodies with both international and national judges:

International Criminal Court

The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).

The court's creation perhaps constitutes the most significant reform of international law since 1945. It gives authority to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.

It came into being on July 1, 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force—and it can only prosecute crimes committed on or after that date. The court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere.

As of March 2016, 124 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from "acts which would defeat the object and purpose" of the treaty until they declare they do not intend to become a party to the treaty. Four signatory states—Israel, Sudan, the United States and Russia—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the Statute.

41 United Nations member states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court. Ukraine, a non-ratifying signatory, has accepted the Court's jurisdiction for a period starting in 2013.

The court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

To date, the Court:opened investigations in ten situations: two in the Central African Republic; Côte d'Ivoire; Darfur, Sudan; the Democratic Republic of the Congo; Georgia, Kenya; Libya; Mali; and Uganda. Additionally, the Office of the Prosecutor is conducting preliminary examinations in ten situations in Afghanistan; Burundi; Colombia; Gabon; Guinea; Iraq / the United Kingdom; Nigeria; Palestine; registered vessels of Comoros, Greece, and Cambodia; and Ukraine.

It publicly indicted 39 people. The ICC has issued arrest warrants for 31 individuals and summonses to eight others. Seven persons are in detention. Proceedings against 22 are ongoing: nine are at large as fugitives, four are under arrest but not in the Court's custody, eight are at trial, and one is appealing his conviction. Proceedings against 17 have been completed: three have been convicted, one has been acquitted, six have had the charges against them dismissed, two have had the charges against them withdrawn, one has had his case declared inadmissible, and four have died before trial.

As of March 2011, three trials against four people are underway: two trials regarding the situation in the Democratic Republic of the Congo and one trial regarding the Central African Republic. Another two people have been committed to a fourth trial in the situation of Darfur, Sudan. One confirmation of charges hearing (against one person in the situation of the DR Congo) is to start in July 2011 while two new cases (against a total of six persons in the situation of Kenya) will begin with the suspects' first appearances in April 2011.

International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pénal international pour le Rwanda (TPIR), is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.

In 1995 it became located in Arusha, Tanzania, under Resolution 977. (From 2006, Arusha also became the location of the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was expanded in Resolution 1165. Through several resolutions, the Security Council called on the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 2012.

The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva Conventions (dealing with war crimes committed during internal conflicts).

So far, the Tribunal has finished 50 trials and convicted 29 accused persons. Another 11 trials are in progress. 14 individuals are awaiting trial in detention; but the prosecutor intends to transfer 5 to national jurisdiction for trial. 13 others are still at large, some suspected to be dead. The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty. According to the ICTR's Completion Strategy, in accordance with Security Council Resolution 1503, all first-instance cases were to have completed trial by the end of 2008 (this date was later extended to the end of 2009).

On July 1, 2012, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTR. The ICTR has been called upon by the United Nations Security Council to finish its work by December 31, 2014, and to prepare its closure and transition of cases to the Mechanism.

International Criminal Tribunal for the former Yugoslavia

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands.

The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences. The last indictment was issued 15 March 2004. The Tribunal aims to complete all trials by mid-2011 and all appeals by 2013, with the exception of Radovan Karadžić whose trial is expected to end in 2012 and the appeal to be heard by February 2014. Goran Hadžić has been charged, however is still at large and thus do not fall within the court's completion strategy.

On 1 July 2013, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTY. The ICTY has been called upon by the United Nations Security Council to finish its work by 31 December 2014 and to prepare its closure and transition of cases to the Mechanism.

United Kingdom

Under section 51(1) of the International Criminal Court Act 2001, genocide and crimes against humanity committed either in the United Kingdom or by United Kingdom nationals abroad can be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the United Kingdom has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is presumed territorial in the absence of express words and based on the presence of the accused within the jurisdiction. There are a number of statutes that impose criminal liability on UK and/or non-UK nationals who commit particular acts outside the jurisdiction, but this can only be exercised where the individual is present or visits the United Kingdom, otherwise the UK government would need to seek extradition from the state in which he is located.

Legal person's criminal liability

It is a rule of statutory interpretation that unless a contrary intention appears, the word "person" includes any body of persons corporate or unincorporated. Thus, once the principle of corporate liability for the form of legal entity is accepted, the entity can be charged with any international offence no matter where it was committed in the same way as a natural person.

U.S. implementation

Because United States federal criminal law is statutory, the relevant international criminal prohibition must have been incorporated directly into U.S. criminal law through Congressional legislation before the matter can be prosecuted in United States Courts. Congress has enacted statutes covering genocide, war crimes, torture, piracy, slavery, and trafficking in women and children to meet the U.S. obligations under international agreements.

Natural persons

In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes, breach of responsibility by a military commander or a superior (usually a civilian superior), offences against the administration of justice of the International Criminal Court, and possession or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary international law.

Legal persons

Companies are not expressly included or excluded from prosecution for international crimes under CAHW. but all the standard remedies in tort are available against corporations for activities committed outside the jurisdiction.

Natural persons

The new Criminal Code includes a series of provisions describing crimes against humanity in considerable detail, including genocide and aggravated war crimes. A limited number of international crimes have equivalents in French domestic law, e.g., forced labour is the equivalent of illegal confinement.

Extraterritorial jurisdiction is based on a connection with France through:

Legal persons

In French law, a civil action can be brought jointly with a penal action before a criminal court. Corporate liability is covered in Articles 121-2 of the new Criminal Code which provide that legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides that legal persons may incur criminal liability for all crimes against humanity.

Natural persons

Norwegian municipal law incorporates specific areas of international law, but there must be a matching penal provision in the domestic criminal law as a precondition to enforcement. Norway is a signatory to the International Criminal Court which has complementary jurisdiction to municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Norway prosecutes international crimes using domestic penal law, e.g., genocide can be treated as homicide, torture as an offence against the person, etc. Norwegian criminal law is applicable to acts committed abroad by any Norwegian national or any person domiciled in Norway when the act is a felony under the law of the country in which it is committed. There is a general discretion to decline a prosecution which occurred in a case brought against the Israeli Prime Minister.

Legal persons

If a business entity domiciled in Norway is involved in unlawful activity committed outside the jurisdiction, both civil and criminal actions are available subject to the rule of "double actionability", i.e., the activity must have been unlawful under the laws of both Norway and the country of commission. The Norwegian Code of Compensation allows actions for damages for the loss and damage arising from the breach of international law. Civil jurisdiction is based on residence or temporary personal presence for natural persons and the place where the board of directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in Norway. The court must be conveniens, i.e., objectively competent in a local and functional way and, in some cases, this requires the defendant's consent.

Germany

Germany has incorporated international criminal law into its domestic legal system in 2002 with the creation of the Völkerstrafgesetzbuch ("Code of Crimes against International Law").