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ICL WEEK 1 TUTORIAL – THE EMERGENCE OF INTERNATIONAL CRIMINAL COURTS ANDTRIBUNALS AND ICL
1. What is international criminal law?
ICL is a body of public international law designed to prohibit certain categories of conduct
commonly viewed as serious atrocities and to make perpetrators of such conduct criminally liable
for their perpetration. It imposes responsibilities directly on individuals and punishes violations
through international judicial mechanisms. The core crimes under ICL are genocide, crimes against
humanity, war crimes and aggression. It also deals with principles and procedures governing the
international investigation and prosecution of these crimes.
A set of rules to protect the values of the international order. It imposes responsibilities directly on
individuals and punishes violations through international mechanisms.
What are the objectives and justifications of international criminal law?
To ensure the protection of interests and values that are fundamental to the international
community. International crimes are considered to be those which are of concern to the
international community as a whole, or acts which violate a fundamental interest protected by
international law.
Two approaches to justifying punishment: forward-looking (teleological or consequentialist), which
focus on the consequences of punishment; and backward-looking (deontological), which focus on
the crime itself. The primary place in which the international courts and tribunals have discussed
their aims of punishment is in relation to their imposition of sentences. The two main aims that
they have asserted for their practice are retribution (necessity of punishing those who have
violated societal norms, on the basis that the offenders deserve punishment for that they have
done) and deterrence (punishment ought to be imposed to prevent both the offender and
population from engaging in prohibited conduct).
- Express international community’s condemnation of the crimes and conveys that crimes
will be punished and impunity won’t prevail + acknowledge the harm to the victims and
promotes the restoration of peace and reconciliation
- Rehabilitation (but, functional for ICL? high sentencing, no rehabilitation possible)
- Incapacitation: prevent crimes by keeping the relevant person in detention
o ICC relies on national system to enforce their judgments incapacitation
dependent upon cooperation of national enforcement powers
- Education/denunciation: criminal procedures and punishment as an opportunity for
communicating with the offender, the victim and wider society the nature of the wrong
done. Engage offenders, and attempt to make them understand what was wrong with what
they have done, whilst also reaffirming the norm in the community and educating society
about the unacceptable nature of the conduct condemned.
Broader goals:
- Vindicating the rights of victims: Prosecutions may engender a sense of justice having been
done, or ‘closure’ for victims, on the basis that seeing their persecutors prosecuted will
have that result, or that the process of testifying will do so possible cathartic effects.
- Truth-telling recording of history. The process of subjecting evidence to forensic scrutiny
will set down a permanent record of the crimes that will stand the test of time.
- Providing a sense of justice through prosecutions for international crimes can facilitate
societal reconciliation and provide the preconditions for a durable peace (‘no peace
without justice’ peace-building, rebuilding society after conflict)
o ICL specific: crimes that affect international society as a whole
Why are/were international criminal tribunals established?
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,To respond to mass abuses of human rights by States Parties against their own citizens or others
within their territory. To respond to egregious violations of human rights in the absence of effective
alternative mechanisms for enforcing the most basic human standards.
2. What is the difference between international criminal law, international humanitarian law
and transnational criminal law?
Transnational criminal law
A State’s domestic criminal law which deals with transnational crimes (crimes with actual or
potential transborder effects). It includes the rules of national jurisdiction under which a State may
enact and enforce its own criminal law where there is some cross-jurisdictional aspect of a crime. It
also covers methods of cooperation among States to deal with domestic offences and offenders
where there is a foreign element and the treaties which have been concluded to establish and
encourage this inter-State cooperation. While international law is thus the source of a part of this
group of rules, the source of criminal prohibitions on individuals is national law.
International criminal law (criminal aspects of international law) vs. transnational criminal law
(international aspects of national criminal laws).
- e.g. smuggling, drug cartel
- States must prosecute it in their own legal system
International humanitarian law
IHL is the body of law designed to protect victims of armed conflict. Violations of a large number of
rules of IHL are now criminalized as war crimes. IHL serves as a point of reference in understanding
and interpreting the corresponding war crimes provisions.
ICL: individual responsibility vs. IHL: State responsibility
3. The Nuremberg and Tokyo Tribunals were qualified by some as ‘victor’s justice’. Do you
think that was justified? If so, would you regard the existing courts/tribunals as exponents
of ‘victor’s justice’?
Victor’s justice: contains a number of linked allegations the trial itself was not fair (in particular
that the judges were biased against the accused); the applicable law was designed to guarantee a
conviction; similar acts were committed by the prosecuting State(s) but were not prosecuted (a plea
of tu quoque = charging an adversary with being/doing what they criticize in others).
- Heavy reliance on affidavit evidence and a considerable disparity in resources between the
prosecution and defense
- The law of crimes against humanity was defined by the Allied, with the actions of the Nazis
in mind, and the Charter was partially ex post facto legislation.
- Similar acts by the Allies weren’t prosecuted.
Tokyo IMT followed the Nuremberg’s IMT opinion practically all aspects of the law. The only major
difference between Nuremberg and Tokyo IMT is that, unlike the Nuremberg IMT, which did not find
it necessary to deal with command responsibility, Tokyo IMT discussed that principle of liability in
some detail, and applied it to both military and civilian defendants.
4. What are the advantages and disadvantages of having tribunals far away from the place
where crimes were committed?
Advantages:
- International tribunals, with international judges, operating at a distance from the events
themselves, are not as open to political manipulation or influence from actors in those
societies, or unconscious bias on the part of the judges.
- International judges are the best judges of international crimes: international judges and
tribunals are representative of the relevant community affected by the international
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, crimes, which is the community of all humanity + international judges are more familiar
with the relevant law.
- International tribunals are better able to investigate and prosecute offenses which occur
across State borders than domestic courts.
- International criminal courts would provide for uniformity in the process and law for
punishing international crimes.
Disadvantages:
- Often-made critique that the international tribunals are too distant from their primary
audience, the victimized community. Also, due to their distance, they are inaccessible to
many of the victims and seen as responding more to an international audience than the
purported beneficiaries. The further from the locus delicti that the trials are held, the more
likely is that they will encounter domestic resistance there, in part because of
misrepresentation of their work and allegation of bias. Given that such tribunals tend to
focus on those most responsible, it is also the case that most victims will not see their
immediate oppressors punished.
- International tribunals are expensive.
- International tribunals reflect inequalities in the selection of cases. Selective justice is a
problem from the point of view of the rule of law, and it can undermine many of the
justifications of punishment.
- ICL is in some ways Western and it’s imposed on other societies.
- Questionable whether criminal law is an adequate mechanism to comprehend events
involving international crimes, particularly large-scale international crimes.
5. What is the difference between the ad hoc tribunals and the ICC? What are hybrid or
internationalized tribunals? Which ones exist?
Ad hoc tribunals were established to deal with international criminal law violations that occurred in
a specific territory or state within a particular timeframe (temporary and specialized) while the
ICC was created to deal with all violations of ICL committed after the date of its establishment, as
long as the crimes fall within its jurisdiction. Ad hoc tribunals were created by initiative of UNSC
while the ICC was created by agreement between States (treaty-based). While almost all States
have a duty to cooperate with the ad hoc tribunals due to their membership with the UN, only
States that are party to the ICC have a duty to cooperate with it.
- Ad hoc tribunals have a temporally and territorially limited jurisdiction and were set in
place for a specific event, while the ICC does not (permanent).
- Jurisdiction for crime of aggression only ICC (ICTY and ICTR didn’t).
- Ad hoc tribunals have primacy, but ICC does not (national courts have primacy and ICC gets
jurisdiction if the national court is unwilling/unable) complementarity.
o ICTY: Tribunal could require States to defer to it any proceedings they were
contemplating or undertaking. The situations when deferral was justified were very
broad, effectively allowing the ICTY to demand transfer of cases at will.
- Difference in applicable sources of law
‘Internationalized’, ‘hybrid’, ‘mixed’ or ‘special’ courts represent a reaction to the international
tribunals, which are expensive and operate away from the State in question for security and
logistical reasons. The attractiveness of this new approach was that the internationalized courts
would be able to overcome the known operational limitations and legitimacy deficits of
international criminal jurisdictions. In particular, such tribunals would be embedded in the local
justice systems and thus might better address sovereignty concerns and empower the State
emerging from conflict or transitional period. They would also promote local ownership of the
justice processes, enable a more active involvement by victims and affected communities, and build
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, judicial and prosecutorial capacity in post-conflict societies while delivering credible, yet less
expensive, justice.
The following broad classes of internationalized jurisdictions can be distinguished: 1. Courts
established by an agreement, being either a bilateral agreement between a State and an
international organization or a multilateral agreement between (regional) States (e.g. SCSL,
ECCC and STL) 2. Courts established by an international transitional administration temporarily
replacing weak or unavailable domestic institutions (e.g. UNTAET and UNMIK) 3. Courts
established by a State under national law but with international support (e.g. SCC and CAR).
- All these domestic courts applied/apply national law and were/are staffed by national
judges. Their specialization in core crimes is what makes them part and parcel of
international criminal justice. They’re tailored to dealing with a specific event.
Hybrid courts and tribunals are institutions that are created to address particular situations for a
limited amount of time, but their nature incorporates international and national features (mixed).
They are composed of international and local staff and apply a mix of international and national
substantive and procedural law. They incorporate national elements, be it in the personnel of the
tribunal, the method of establishment or the applicable law. This model is also distinguishable from
the prosecution of international crimes before national courts, including national courts of third
states acting on the basis of universal jurisdiction, due to the international element that is not
normally present in national proceedings. Common element of these courts is that they are all
designed to deal with international crimes, exclusively or in part.
6. What is the ‘residual mechanism’?
The Security Council was aware that there were matters, such as supervision of prison sentences,
release, the possible trial of fugitives or contempt cases and reopening of cases, that will last
beyond the lifespan of the ICTY. It therefore decided, in Resolution 1966, to establish a ‘Residual
Mechanism’, the UN Mechanism for International Criminal Tribunals (MICT), to perform these
functions for the ICTY and the ICTR. The MICT is in essence a pared-down version of the
Tribunals: it continues the material, territorial, temporal and personal jurisdiction of the Tribunals,
and, where appropriate, refers cases to national jurisdictions. It also has the express power to
punish contempt. Like the ICTY, the MICT has an Office of the Prosecutor, Chambers, a Presidency
and Registry. It has now essentially replaced the ICTY. The work of the MICT is to be reviewed on a
biannual basis, with a view to reducing its functions and staff over time.
The MICT is monitoring trials referred under Rule 11bis, engaging in witness protection and
overseeing the implementation of sentences. As such, it took over the functions of the ICTR.
- Multiple obstacles to proceedings of ad hoc tribunals lengthy process (e.g. funding,
interpreting issues)
7. What are the sources of ICL? Is there any difference between the sources of ICL according
to art. 21 Rome Statute and art. 38 ICJ Statute? According to art. 21 Rome Statute, is
there a hierarchy of the applicable sources of law?
As ICL is a subset of international law, its sources are those of international law enumerated in art.
38(1)(a)-(d) of the Statute of the International Court of Justice treaty law, customary law,
general principles of law and, as a subsidiary means for the determination of the law, judicial
decisions and the writings of the most qualified publicists.
Rome Statute adopts a hierarchical approach to the applicable sources of law (ICJ doesn’t). The
Rome Statute places great emphasis on the Statute itself, the Elements of Crimes as well as its rules
of Procedure and Evidence. Additionally, it does not mention customary international law which ICJ
does. The ICJ also mentions judicial decisions and the teachings of the most highly qualified
publicists as subsidiary means to determine the applicable rules while the Rome Statute does not.
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