Seminar 3 – International Criminal Justice and National Legal
Systems
Reading:
Pages 70-74 – National Prosecutions of International Crimes
International Criminal Law sees national courts as the courts of first resort –
known as the Indirect Enforcement system
Although the intention, the prosecution of International Crimes in domestic courts
is a rare occurrence and instead reliance is placed upon International Criminal
Tribunals
War Crimes are the crimes most often prosecuted in domestic courts
The Second World War saw many prosecutions for International Crimes take place
in national courts, particularly in Germany and France
Such cases saw clarification on evidentiary matters, defences, and mental
requirements for crimes
Completion strategies of ICTY and ICTR saw cases referred to domestic courts as
well as any subsequent appeals
Specialized domestic courts for some international crimes (internationalized
courts) have been established in some countries with international assistance
National prosecutions of international crimes are often highly selective and
generally focus on people of other nationalities and now their own citizens
National courts often show uneasiness in dealing with prosecuting for
international crimes and often try to apply national law alongside international law
Pages 79 – 83 – Domestic Criminal Law and Criminal Jurisdiction
National prosecutions assumed there is an applicable criminal law and criminal
jurisdiction
Genocide and Geneva Conventions requires states to enact necessary legislation
States either rely directly upon the conventions in application or adopt it into
domestic law
Some states have domestic versions of crimes such as genocide but these are
often not criminalised to the extent which they should be – eg Australia. In other
cases special legislation that is introduced is unsatisfactory
Even when national courts interpret international law in good faith, there is a
significant chance that judges not well versed in international law my
misunderstand what is requires
ICC assumes jurisdiction when national courts fail to act – the complementarity
principle
States will want to meet the complementarity test – there is no legal obligation
under statute
Important to ensure criminalisation complies with ICC to prevent future
intervention from it, the safest adoption is to adopt the offences as defined in the
ICC statute
Domestic case law may have an impact as a source of law for international
criminal courts
To what extent national courts rely on International case law is dependent on the
state however
Pages 154 – 159
Complementarity and other grounds of inadmissibility
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