INTERNATIONAL
CRIMINAL LAW[1]
International Criminal Law is a body of international rules which, on one hand,
prescribes international crimes and imposes upon States the obligation to
prosecute and punish at least some of these crimes, and, on the other hand,
regulates international proceedings for prosecuting and trying persons accused
of such crimes.[2] It is a relatively new branch of Public International
Law. Its rules have come into being by gradual accretion. It
consists of two parts, “substantive criminal law” and “procedural criminal
law”.[3] “Substantive criminal law” is the set of rules
indicating what acts constitute international crimes, as well as on what conditions
States may and must, under International Law, prosecute or bring to trail
persons accused of one of these crimes. “Procedural criminal law” is the
set of rules regulating the various stages of international trials for the
prosecution of accused criminals.
The substantive and procedural rules of International Criminal Law are found,
mainly, in the various treaties of the International Humanitarian Law, and in
various statutes of international criminal tribunals. Examples of the
relevant treaties of International Humanitarian Law are: the 1899 and
1907 Hague Conventions,[4] the four 1949 Geneva Conventions,[5] the two 1977 Additional Protocols to the Geneva Conventions,[6] the various treaties prohibiting the use of certain weapons,
and the various treaties related to certain international crimes such as the
1948 Convention on Genocide,[7] the 1984 Convention against Torture,[8] and the various treaties on terrorism. Examples of the
statutes of various international criminal tribunals are: the 1945 Statute of
the International Military Tribunal for the Major War Criminals at Nuremberg
(IMT), the 1946 Statute of the International Military Tribunal for the Far East
(IMTFE), the 1993 Statute of the International Criminal Tribunal for the former
Yugoslavia (ICTY), the 1994 Statute of the International Criminal Tribunal for Rwanda
(ICTR), and the 1998 Statute of the International Criminal Court (ICC).
International Criminal Law has established individual responsibility, with
criminal sanctions, for non-observance of the rules of International
Humanitarian Law. This responsibility applies to each individual, who
must answer for his conduct, even when acting on orders from a superior.
A superior is liable to criminal prosecution. The Head of State may have
to answer for his actions.
The rules of the International Criminal Law will be the subject of the
following sections: The first section will deal with international
crimes; and the second section will deal with the prosecution and punishment of
international crimes by national courts as well as by international tribunals.
SECTION
1: INTERNATIONAL CRIMES
International crimes are breaches of international rules entailing the personal
criminal liability of individuals concerned. [9] They are crimes of concern to international community as
a whole. The list of international crimes, acts which are prohibited
under International Law and which makes their authors criminally liable, has
come into being by gradual accretion.[10] Traditionally, in the Seventeenth to the Nineteenth
Centuries, piracy was considered an international crime. Apart of this
traditional crime, initially, in late Nineteenth Century only war crimes were
considered international crimes and were punishable.[11] It is only since the Second World War that new
categories of international crimes have developed.[12] The 1945 Statute of the International Military Tribunal
for the Major War Criminals at Nuremberg (IMT) and the 1946 Statutes of the
International Military Tribunal for the Far East (IMTFE) added new classes of
international crimes to “war crimes”, namely “crimes against humanity” and
“crimes against peace”. “Crime of genocide”, which was considered as a
special subcategory of crimes against humanity, became an autonomous class of
crime in 1948, when the General Assembly of the United Nations adopted the Genocide
Convention.[13] “Wars of aggression”, which were one of the subcategories
of the broad category of “crimes against peace”, themselves became a category
of international crimes replacing what was known as “crimes against peace” when
the G.A adopted its Resolution on the Definition of Aggression in 1974.[14] Recently, acts of international terrorism have
been added as a distinct international crime.
The contemporary list of international crimes is formulated in the 1998 Rome
Statute of the International Criminal Court (ICC). Article 5 of the
Statute lists the international crimes over which the Court has a jurisdiction
as the following: (1) The crime of genocide; (2) Crimes against humanity;
(3) War crimes; and (4) The Crime of aggression.
1.
The Crime of Genocide
“Genocide” is the intentional killing, destruction, or extermination of groups
or members of a group as such.[15] The ICC Statute defines “genocide” to mean any of
the following acts committed with intend to destroy, in whole or in part, a
national, ethnical, racial or religious group:[16]
(a)
Killing members of the group;
(b)
Causing serious bodily or mental harm to members of the group;
(c)
Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d)
Imposing measures intended to prevent birth within the group; and
(e)
Forcibly transferring children of the group to another
group.
2.
Crimes against Humanity
“Crimes against humanity” are odious offenses that constitute a serious attack
on human dignity or a grave humiliation or degradation of one or more human
beings, committed as part of either of a governmental policy, or of a widespread
or systematic practice of atrocities tolerated, condoned, or acquiesced in by a
government or a de facto authority.[17] The acts which constitute such crimes are prohibited
and punishable, whether they are committed in time of war or peace.[18] The victims of such crimes may be civilians or enemy
combatants.[19]
The ICC defines “crime against humanity” to mean any of the following acts when
committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack:[20]
(a)
Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation or forcible transfer of population;
(e)
Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of International law;
(f)
Torture;
(g)
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)
Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender, or other grounds;
(i)
Enforced disappearance of persons;
(j)
The crimes of apartheid; and
(k)
Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
3.
War Crimes
War crimes are serious violations of customary or treaty rules belonging to
International Humanitarian Law or the Law of War (the body of substantive rules
comprising “the Law of the Hague” and “the law of Geneva”).[21] They may be committed in the course of either
international or internal armed conflicts.[22] They may be committed by military personnel against
enemy servicemen or civilians, or by civilians against members of the enemy
armed forces or enemy civilians.[23]
The ICC Statute provides that the Court shall have jurisdiction in respect of
war crimes in particular when committed as a part of a plan or policy or as
part of a large-scale commission of such crimes.[24] According to this Statute, “War crimes” means:
(a)
Grave breaches of the 1949 Geneva Conventions, namely any of the acts against
protected persons or property such as willful killing, torture or inhumane
treatment, unlawful deportation or transfer or unlawful confinement, taking
hostages, and extensive destruction and appropriation of property not justified
by military necessary.[25]
(b)
Serious violations of the laws and customs applicable in international
armed conflicts or in armed conflicts not of international character, within
the established framework of International Law, namely such as acts committed
against the life and dignity of persons; intentionally directing attacks
against civilians, civilian population, civilian objects, or against personnel,
installations, material, units or vehicles involved in humanitarian assistance;
killing or wounded a surrendering combatant; or employing prohibited weapons.[26]
4.
Crimes of Aggression
The 1974 General Assembly Resolution on the Definition of Aggression provides
that aggression is the use of force by a State against the sovereignty,
territorial integrity or political independence of another state, or in any
other manner inconsistent with the Charter of the United Nations.[27] Accordingly, “war of aggression” is a crime against
International Law which gives rise to international responsibility.
Crimes of aggression comprise the following:[28]
(a)
The invasion of or the attack by the armed forces of a State on the territory
of another State, any military occupation, or any annexation by force of the
territory or part of the territory of another State;
(b)
Bombardment, or use of any weapon , by the armed forces of a State, against the
territory of another State;
(c)
Blockade of the ports or coast of a State by the armed forces of another State;
(d)
Attack by the armed forces of a State on the land, sea, or air forces of
another State;
(e)
The sending by or on behalf of a State of armed bands, group, irregulars, or
mercenaries, which carry out acts of armed force against another
States.
SECTION
2: PROSECUTION OF INTERNATIONAL CRIMES
The Prosecution of individuals committing international crimes has undergone a
significant development throughout History; prosecution exclusively by national
courts to possible prosecution by international courts, whether ad hoc or
permanent.
A.
Prosecution by National Courts to Prosecution by Ad Hoc
International Tribunals
Traditionally, individuals have been subject to the exclusive jurisdiction of
the State on whose territory they live.[29] Their Violations of international rules were prosecuted and
punished by the competent authority of the State where the acts of violations
had been committed. However, such prosecution and punishment were not
possible unless the State was authorized to do so under its own national law,
and it was willing to proceed.[30] If no prosecution and punishment had happened, then the
State, victim of the violation or of which the victim had its nationality, was
entitled to international claim against the delinquent State, which had either
to punish the perpetrators or pay compensation. In such case, what was
involved was the responsibility of the State. State responsibility was
founded on its failure to prosecute and punish the perpetrators.[31] Notably, it is necessary to mention that if a wrongful
act had been committed by a State official in his official capacity, he was entitled
abroad to immunity form jurisdiction (prosecution and punishment).[32]
However, few exceptions to the above tradition existed. One of the
exceptions was “piracy”, a practice which was widespread in the Seventeenth and
Eighteenth Centuries. “Piracy” was considered an international crime. “Pirates”
were regarded as enemies of humanity because they hampered the freedom of the
high sea and infringed private property. So all States were empowered to
search for, prosecute and punish pirates, regardless of the nationality of the
victims and of whether the prosecuting State had been affected by piracy.[33]
Another exception was “war crimes”, which gradually emerged as international
crimes in the second half of the Nineteenth Century.[34] Traditionally such crimes were defined as violations of
the laws of warfare committed by combatants in wars (international armed
conflicts). Individuals acting as State officials, chiefly low-ranking
members of the armed forces, could be prosecuted and punished for violations of
the laws of warfare. They could be prosecuted and punished, not only by
their own States, but also by the enemy State. Actually, the exceptional
character of war warranted this deviation from the traditional rule, namely the
immunity of State’s officials from the jurisdiction of foreign States.
For many years adversary States prosecuted and punished the alleged
perpetrators of war crimes on the basis of the principle of “passive
nationality” (the nationality of the victim), which entitles a State to
exercise jurisdiction over crimes committed against its nationals.[35]
After the First World War, the Allied Powers prosecuted and punished those
guilty of war crimes either on the basis of the principle of territoriality
that entitles the State to exercise jurisdiction over crimes committed on its
territory, or on the basis of passive nationality; in this later basis it was
sufficient for the victim to have the nationality of any of the Allied Powers.[36]
The creation of the International Military Tribunal for the Major War Criminals
(IMT) and the International Military Tribunal for the Far East (IMTFE) in 1945
and 1946 respectively, and the subsequent trails at Nuremburg and Tokyo of the
German and Japanese war criminals, marked a crucial turning point with regard
to international crimes.[37] Two new categories of international crimes were
emerged: crimes against peace and crimes against humanity. State senior
officials, high ranking military officers, politicians and high ranking
administrators, who were until 1945 protected by State sovereignty, became
personally responsible for their wrongdoings. They could be prosecuted by
international tribunals as well as by foreign States who could also punish
them.
With the adoption of the Geneva Conventions in 1949, further important advances
occurred as regards international criminal law.[38] New groups of war crimes were added, namely “grave
breaches of the Geneva Conventions”. An advanced system for repressing
violations by States was set up. The principle of universality of
jurisdiction was laid down, according to which a contracting State could
prosecute an accused person held in its custody regardless of his nationality,
of the nationality of the victim, and of the place where the alleged violations
had been committed.
With
the adoption of the Protocol II Additional to the 1949 Geneva Conventions in
1977, and the creation of the two ad hoc international tribunals, the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994
respectively, a significant evolution of International Criminal Law took
place. The notion of war crimes was extended to include serious
violations of international humanitarian rules governing internal armed
conflicts. Violators of these rules could be prosecuted by international
tribunals.
A further significant evolution of International Criminal Law finally took
place with the adoption of the Statute of the International Criminal Court
(ICC) in 1998. The ICC was established as the permanent international
court for international criminal justice, and complementary to national
courts. An almost comprehensive list of international crimes was
formulated.
The apparent feature of International Criminal Law today is the possibility of
prosecution of international crimes by national courts as well as by
international tribunals, whether ad hoc tribunals or the International Criminal
Court (ICC). In the following subsection, we will deal with the
prosecution by the ICC.
B.
Prosecution by the International Criminal Court (ICC)
The attempts to establish a permanent international criminal court for the
prosecution of individuals committing international crimes succeeded when on 17
July 1998 the Statute of the International Criminal Court (ICC) was signed at
Rome.[39] The ICC is established as a judicial organ of universal
jurisdictional reach; thus, it is potentially able to respond to violations
occurring anywhere.[40] Its seat is established at The Hague in the
Netherlands.[41] Its relationship with the United Nations shall be governed by
the agreement approved by the Assembly of States Parties to its Statute and
thereafter concluded by the president of the ICC on its behalf.[42] Its jurisdiction and functioning are governed by the
provisions of its Statute.[43]
The Statute of the ICC provides that the Court shall have international legal
personality, and that it shall also have such legal capacity as may be
necessary for the exercise of its functions and the fulfillment of its
purposes. The court may exercise its functions and powers, as provided in
its statute, on the territory of any state party and, by special agreement, on
the territory of any other State.[44]
According to the Statute of the ICC, the Court is a permanent criminal court
that has the power to exercise jurisdiction over persons committing the most
serious crimes of concern to the international community as a whole, namely (a)
The crimes of genocide; (b) Crimes against humanity; (c) War crimes; and (d)
The crime of aggression.[45] The ICC is complementary to the national criminal
jurisdictions.[46] National courts enjoy priority in the exercise of
jurisdiction over persons committing international crimes except under special
circumstances, when the ICC is entitled to take over and assert its
jurisdiction. The ICC is barred from exercising its jurisdiction over crimes
whenever a national court assets its jurisdiction over the same crime and (1)
under its national law the State has jurisdiction, (2) the case is being duly
investigated or prosecuted by its authorities or these authorities decided, in
a proper manner, not to prosecute the person concerned, and (3) the case is not
of sufficient gravity to justify action by the ICC.[47] In addition, the ICC may not prosecute a person whom
already been convicted of or acquitted for the same crimes, if the trail was
fair and proper.[48]
Nevertheless, the ICC is authorized to exercise its jurisdiction over a crime
even if a case concerning that crime is pending before national authorities,
and thus to override national criminal jurisdiction, whenever:
(1) the State is unable
or unwilling to carry out the investigation or prosecution the person
concerned, and (2) the case is of sufficient gravity to justify the exercise of
the ICC jurisdiction.[49] A State is “unable” when, because of a total or partial
collapse of its judicial system, it is not in a position to detain the accused
person, or to carry out criminal proceedings.[50] A State may be considered as “unwilling” when: (1) in
fact the national authorities have undertaken proceedings for the purpose of
shielding the concerned person from criminal responsibility, (2) there has been
an unjustified delay in the proceedings showing that in fact the authorities do
not intend to bring the concerned person to justice, or (3) the proceedings are
not being conducted independently or impartially or in any case in a manner
showing the intend to bring the person to justice.[51]
The ICC may exercise its jurisdiction with respect of any international crimes
if such a crime is referred to the Prosecutor of the ICC by a State Party to
the Statute, or by the security Council acting under Chapter VII of the Charter
of the United Nations, or if the Prosecutor has initiated an investigation in
respect of such a crime.[52] 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. The Prosecutor may initiate
investigation based on information on crimes within the jurisdiction of the
Court.
According to the Statute of the ICC, the Court has a jurisdiction over natural
persons who commit crimes within its jurisdiction.[53] A person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:
commits such a crime; orders, solicits or induce the commission of such a
crime; facilitating the commission of such a crime; contributing in any way to
the commission or attempted commission of such a crime; or attempts to commit
such a crime.
Criminal responsibility and liability under the Statute of the ICC shall be
applied to all persons without any distinction based on official capacity.[54] In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected representatives
or a government official shall in no case exempt a person from criminal
responsibility under the Statute, nor shall it, in and of itself, constitute a
ground for reduction of sentence. Immunities or special procedural rules
which may attach to the official capacity of a person, whether under national
or International Law, shall not bar the Court from exercising its jurisdiction
over such a person.
According to its Statute, the ICC may
impose the following penalties:
(a) Imprisonment for a
specified number of years, which may not exceed a maximum of 30 years; or (b) A
term of life imprisonment.[55] In addition to imprisonment, the Court may order: (a) A
fine; or (b) A forfeiture of proceeds, property and assets derived directly or
indirectly from that crime.[56]
[1] See generally A. Cassese, International Criminal Law,
Oxford (2003); A. Cassese, P. Gaeta and W.D. Jones (eds.), The Rome Statute of
International Criminal Court – A Commentary, Oxford (2002); H. Fischer, C.
Kress and S.R. Luder (eds.), International and National Prosecution of Crimes
under International Law – Current Developments, Verlag Arno Spitz, Berlin
(2001); and G.P. Fletcher, Basic Concepts of Criminal Law, Oxford (1998).
[2] See Cassese, p. 15.
[3] Id.
[4] Texts in Nouveau Recueil général des traites, 2nd
series, vol. 26 ; and 3rd series, vol. 3.
[5] Texts in The Geneva Conventions of August 12, 1949, ICRC
Publication, Geneva (No date).
[6] Text in Protocols Additional to the Geneva Conventions of 12
August 1949, rev. ed., ICRC Publication, Geneva (1996).
[7] Text in 78 U.N.T.S. 277.
[8] Text in 24 I.L.M. (1985) 535.
[9] Cassese, p. 23.
[10] Id. p. 16.
[11] Id.
[12] Id.
[13] Supra note 7.
[14] G.A. Res. 3314 (XXIX), 29 GAOR Supp. 31, U.N. Doc. A/9631, at
142 (1974).
[15] Cassese, p. 96.
[16] ICC Statute art. 6. For the Text of the ICC Statute
(Rome Statute of the International Criminal Court) see www.un.org/icc .
[17] Cassese, p. 64.
[18] Id.
[19] Id.
[20] ICC Statute art. 7.
[21] See Cassese, p. 47.
[22] Id.
[23] Id. p. 48.
[24] ICC Statute art. 7(1).
[25] Id. art. 8(2)(a).
[26] ICC Statute art. 8(2)(b).
[27] Definition of Aggression art. 1.
[28] Id. art. 3.
[29] Cassese, p. 37.
[30] Id.
[31] Id. pp. 37-8.
[32] Id. p. 38.
[33] Id.
[34] Id.
[35] Id. p. 39.
[36] Id. p. 40.
[37] Id.
[38] Id. p. 41
[39] See generally H. Fujita, Establishment of the International
Criminal Court – Historic Significance of the Rome Statute, 42 A.J.I.L. (1999)
pp. 32-61.
[40] ICC Statute arts. 1 & 5.
[41] Id. art. 3(1).
[42] Id. art. 2.
[43] Id. art. 1.
[44] Id. art. 4.
[45] Id. art. 5.
[46] Id. art. 1.
[47] Id. art. 17.
[48] Id. art. 17(1)(c).
[49] Id. art. 17. See Cassese, p. 352.
[50] Id. arts. 17(3) & 20.
[51] Id. art. 17(2).
[52] Id, art. 13.
[53] Id. art. 25.
[54] Id. art. 27.
[55] Id. art. 77(1).
[56] Id. art. 77(2).
ADAPTED FROM Dr. Walid Abdulrahim
No comments:
Post a Comment