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Problem 7 Immunity does not mean impunity … right?E-lesson: 13
Literature: Chapter 12
Legislation: Statute of the International Criminal Tribunal for Rwanda, Statute for the International
Criminal Tribunal for the Former Yuguslavia, Rome Statute
Case Law: Eichmann, Tadic 2x, Radislav Krstic, Bosnia
How do you prosecute an individual before an international court?
Introduction
Over the past two decades, we have seen the establishment of various international criminal courts
and tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the
International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC).
This development has been triggered by the strengthening global consensus that individuals,
who are allegedly responsible for committing serious international crimes, must be brought to
justice.
The Statutes of these international criminal courts and tribunals provide for necessary jurisdiction to
achieve this goal.
However, the jurisdiction of international criminal courts and tribunals may coincide
(samenvallen) with the jurisdiction of domestic criminal courts;
The question, therefore, becomes which criminal court (international or national)
should take precedence (voorrang), and under which conditions?
International Criminal Law
International criminal law is a branch of public international law that can be divided in substantive and
procedural rules.
The substantive component of international law consists of rules identifying the offences that
amount to international crimes, for which individuals can be held responsible. The following
offences are recognized as the core categories of crimes under international law: genocide,
crimes against humanity, war crimes and torture (Articles 6-8 Rome Statute of the ICC, 1984
Convention against Torture).
Substantive rules are also known as primary rules;
The procedural component of international criminal law consists of rules regulating the
international proceedings for prosecuting and trying persons accused of international crimes.
Importantly, it also includes rules related to the jurisdiction of international courts and tribunals.
Procedural rules are also known as secondary rules;
The Statutes of the ICTY, ICTR and ICC contain both substantive and procedural rules.
Jurisdiction of Domestic Courts
The jurisdiction of domestic (national) courts to prosecute and punish alleged perpetrators of
international crimes, is typically based in domestic legislation.
In other words, it is domestic legal provisions that define the crimes and empower domestic courts to
exercise jurisdiction over them.
Traditionally, domestic courts have exercised jurisdiction in respect of international crimes on
the basis of the territoriality, active nationality and passive nationality principle;
In more recent times, several domestic courts have also invoked the universality principle to
exercise jurisdiction over crimes which are of such gravity and magnitude (genocide, war
crimes, crimes against humanity and torture) that they warrant (rechtvaardigen) universal
prosecution and repression.
The universality principle was applied in the case Eichmann, which concerned Adolf Eichmann, a
former Nazi and SS Lieutenant-Colonel.
Eichmann was accused, among other crimes, of crimes against humanity and was tried in an Israeli
court in 1961.
The reasoning of the Israeli District Court and Supreme Court on the application of the universality
principle was as follows:
A.G. of the Government of Israel v. Adolf Eichmann, District Court of Jerusalem (December 12 1961),
ILR 36, 5, pp. 18-276, paras. 11-12, 16.
, 11. [...] The power of the State of Israel to enact the Law in question or Israel's "right to punish" is
based, with respect to the offences in question, from the point of view of international law, on a dual
foundation: The universal character of the crimes in question and their specific character as being
designed to exterminate the Jewish People. In what follows, we shall deal with each of these two
aspects separately.
12. The abhorrent crimes defined in this Law are crimes not under Israeli law alone. These crimes
which offended the whole of mankind and shocked the conscience of nations are grave offences
against the law of nations itself ("delicta juris gentium"). Therefore, so far from international law
negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an
International Court, the international law is in need of the judicial and legislative authorities of every
country, to give effect to its penal injunctions and to bring criminals to trial. The jurisdiction to try
crimes under international law is universal.
16. We have said that the crimes dealt with in this case are not crimes under Israeli law alone, but are
in essence offences against the law of nations. Indeed, the crimes in question are not a free creation
of the legislator who enacted the law for the punishment of Nazis and Nazi collaborators, but have
been stated and defined in that law according to a precise pattern of international laws and
conventions which define crimes under the law of nations [...]
A.G. of the Government of Israel v. Adolf Eichmann, Supreme Court of Israel (May 29 1962), ILR 36,
5, pp. 277-342, para. 10.
10. We have thus far stated our reasons for dismissing the first two contentions of counsel for the
appellant in reliance upon the rules that determine the relationship between Israel municipal law and
international law. Our principal object was to make it clear - and this is by way of a negative approach -
that under international law no prohibition whatsoever falls upon the enactment of the Law of 1950
either because it created ex post facto offences or because such offences are of an extra-territorial
character. Nevertheless, like the District Court, we too do not content ourselves with this solution but
have undertaken the task of showing that it is impossible to justify these contentions even from a
positive approach - that in enacting the said Law the Knesset only sought to set out the principles of
international law and embody its aims. The two propositions on which we propose to rely will therefore
be as follows:
(1) The crimes created by the Law and of which the appellant was convicted must be deemed today
as having always borne the stamp of international crimes, banned by the law of nations and entailing
individual criminal responsibility.
(2) It is the peculiarity universal character of these crimes that vests in every State the authority to try
and punish anyone who participated in their commission.
Jurisdiction of the ICTY and ICTR
Creation
The ICTY and the ICTR were both created by binding resolutions of the UN Security Council,
acting under Chapter VII of the UN Charter;
The ICTY was set up in 1993 by SC Resolution 827;
Thee ICTR in 1994 by SC Resolution 955;
By contrast, the ICC was established by an international treaty, the Rome Statute.
Jurisdiction
The Statutes of the ICTY and the ICTR provide that each tribunal possesses territorial and temporal
jurisdiction (Articles 7 ICTR and 8 ICTY Statute).
Furthermore, contrary to the ICC, which has complementary jurisdiction, the Statutes of the ICTY and
ICTR provide they have concurrent jurisdiction with domestic criminal courts to prosecute persons for
serious violations of international criminal law.
However, in case of conflict, primacy is given to the jurisdiction of the Tribunals (Articles 8
ICTR and 9 ICTY Statute).
The ICTY and the ICTR have jurisdiction with respect to the crimes of genocide, war crimes and
crimes against humanity (Articles 2, 3, 4 & 5 ICTY Statute and Articles 2, 3 and 4 ICTR Statute).
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