Clear and neat elaboration of tutorial group 7 of Public International Law.
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When can the ICC prosecute individuals under international criminal
law?
International criminal law is a part of public international law and can be divided in
substantive and procedural rules. Statutes of the ICTY, ICTR and ICC contain both
substantive and procedural rules.
The substantive rules (primary) identify the ofences that amount to international
crimes, for which individuals can be held responsible. The 'core' ofences are
1. Genocide article 6 Rome Statute of the ICC
2. Crimes against humanity article 7 Rome Statute of the ICC involved murder,
extermination, enslavement, deportation
3. War crimes article 8 Rome Statute of the ICC
4. Torture article 1 Convention against Torture
Torture may amount to a crime against humanity in time of peace or in time of armed confict,
when committed as part of a widespread or systematic practice. Torture may also amount to a war
crime when committed in time of armed confict.
The procedural rules (secondary) regulate the international proceedings for prosecuting
and trying persons accused of international crimes. It also includes rules related to the
jurisdiction of international courts and tribunals.
Domestic legal provisions defne the crimes and empower domestic courts to exercise
jurisdiction over them.
Domestic courts have exercised jurisdiction of international crimes on the basis of
the: territoriality principle, active nationality principle and the passive nationality
principle. Several domestic courts have also invoked the universality principle for (the
core) crimes which are of such gravity and magnitude that they warrant universal
prosecution and repression.
The universality principle was applied in the Eichmann case, 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. “These crimes ofennen the whole of mankinn ann shocken the conscience of
nations are grave ofences against the law of nations itself ("nelicta juris gentium”). The jurisniction to try
crimes unner international law is universal.”
Jurisniction of the ICTY ann ICTR
Creation
The ICTY and the ICTR were both created by binding resolutions of the UN Security Council.
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 8 ICTY and 7 ICTR Statute > they have concurrent jurisdiction with domestic
criminal courts to prosecute persons for serious violations of international criminal law. In case of
confict, primacy is given to the jurisdiction of the Tribunals Article 9 ICTY Statute and 8 ICTR
Statute. On the contrary, the ICC has complementary jurisdiction.
The ICTY and the ICTR have jurisdiction for 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. (No, crime of
aggression.) The precise scope of each of these crimes has been further expanded through the
jurisprudence of the Tribunals.
E.g. the ICTR recognized the systematic use of sexual ofences as constituting genocide. In the Akayesu case
the ICTR ruled that sexual violence and rape were employed as tools in the destruction of Tutsis, during the
Rwanda genocide.
High-ranking state ofcials, irrespective of whether they are incumbent, do not enjoy immunity
before the ICTY and ICTR Articles 7(2) ICTY Statute and 6(2) ICTR Statute) < same applies for the
ICC.
Primacy and Kompetenz-Kompetenz
The judges of the ICTY have drawn up a set of rules on the primacy of the Tribunal Rules of
Procedure and Evidence. These are also used by the ICTR. These rules determine the conditions
under which the Prosecutor of the Tribunal may assert its primacy (see Rule 9 RPE). Furthermore,
Literature: Chapter 12 – International Law, Part 13 – E-learning, 1
Cases: Tadic, Tadic, Application of the Convention on the prevention and punishment of the crime of Genocide
(Bosnia and Herzegovina vs. Serbia and Montenegro), Radislav Kristic
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