Summary International Criminal Courts and Tribunals
Yellow: Articles in Rome Statute ICC
Blue: legal elements
Chapter 1: Introduction: What is International Criminal Law?
International law typically governs the rights and obligations of States, criminal law is
concerned with prohibitions addressed to individuals, violations of which are subject to panel
sanction by a State. The book uses ‘international crime’ to refer to those offences over
which international courts or tribunals have been given jurisdiction under general
international law. They compromise the so-called ‘core’ crimes of genocide, crimes against
humanity, war crimes and the crime of aggression (or crime against peace). There are
different meaning of international criminal law and these different meanings have their own
utility for their different purposes and there is no necessary reason to decide upon one
meaning as the right one. However, this book uses the following definition of International
criminal law: it encompasses not only the law concerning genocide, crimes against humanity,
war crimes and the crime of aggression but also the principles and procedures governing the
international investigation and prosecutions of these crimes.
The ICTY has accepted that when its Statue does not regulate a matter, customary
international law, and general principles, ought to be referred to. Customary law is that body
of law which derives from the practice of States accompanied by opinion juris (the belief that
what is done is required by law). The use of customary law has often been criticized on the
basis that it may be too vague to found criminal liability or even that no law that is unwritten
should suffice to found criminal liability. Another disadvantage is that it may be difficult to
ascertain its content.
The ICTY and ICTR had reference to domestic, as well as international, case law.
International Criminal Law and International Human rights law:
The difference is that International Human Rights Law is about state responsibility (the state
can be find responsible for breaching human rights laws) while International Criminal Law is
about individual responsibility.
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,International Criminal Law and International Humanitarian Law:
Laws and customs of warfare/what a country can do once a conflict has started. Overlap
because humanitarian law is the basis of war crime law. But international criminal law goes
beyond this and is not only about war crimes. In international Humanitarian law is about state
responsibility while international criminal law is about the individual.
International criminal law and Transnational: field of law that consists of many international
treaties that establish crimes that have transborder effects (example is terrorism, human
trafficking, drug trafficking). Obligations for states once they sign the treaty, to criminalize it.
International criminal law is field of law that directly criminalizes crimes. Doesn’t matter if a
state implements these crimes or not. State agents can be criminally responsible even though
it is not criminalized by the country.
The principle of legality entails that no crimes and no punishment without law that is:
1. Pre-existing (lex praevia)!!!
2. Precisely formulated (lex certa): an ordinary person must be able to understand
3. (Written (lex scipta)) not so much in ad hoc tribunals
4. Strictly interpreted and applied by courts (lex stricta)
The principle of nullum crimes sine lege has two aspects: non-retroactivity and clarity of
law, both of which seek to ensure that the law is reasonable publicized, so people can know
whether their planned course of action is acceptable or not. It is a fundamental principle of
criminal law that criminal responsibility can only be based on pre-existing prohibition of
conduct that is understood to have criminal consequences.
Chapter 7: The Ad Hoc International Criminal Tribunals
International Criminal Tribunal for the Former Yugoslavia (ICTY)
There are three main organs of the ICTY:
- the Registry: responsible for the administrative management of the Tribunal
- the Office of the prosecutor: responsible for investigating alleged crimes, seeking
indictments and bringing matters to the trial
- the Chambers: subject to the supervision of the Appeals Chamber, the final authority
on matters of law in the Tribunal.
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,The ICTY had jurisdiction over war crimes, crimes against humanity and genocide commited
after 1 January 1991 on the territory of the former Yugoslavia. The ICTY had, to a great
extent, primacy over national courts. Pursuant to this principle, the Tribunal could require
States to defer to it any proceedings they were contemplating or undertaking. The Council
was aware that there were matters, such as supervision of prison sentences, release, the
possible trial of fugitives and reopening cases etc that will last beyond the lifespan of the
ICTY. It therefore decided to establish a ‘Residual Mechanism’, the United Nations
Mechanism for International Criminal Tribunals (MICT) to perform these functions of
the ICTY and ICTR.
International Criminal Tribunal for Rwanda (ICTR)
The ICTR, like the ICTY, had jurisdiction over genocide, crimes against humanity and war
crimes, although the definitions of the last two crimes were different from those in the ICTU.
The ICTR’s jurisdiction over these international crimes was limited to were they occurred in
Rwanda, or were committed by Rwandans in neighboring States, between 1 January and 31
December 1994. The ICTR had primacy over domestic courts, in the same way as the ICTY.
Like the ICTY, it also adopted a Rule 11bis, which allowed it to refer cases to domestic
jurisdictions.
Chapter 8: The International Criminal Court
International Criminal Court (ICC) is not a UN body. Complimentary jurisdiction (ICTY and
ICTR had primary jurisdiction) = only exercises jurisdiction if states are unwilling or not able
to do it themselves.
- Material jurisdiction (article 5 Rome Statue): crime of aggression, genocide, crimes
against humanity and war crimes
- Temporal jurisdiction: only try any of these crimes if they happened after 1 July 2002
or if a state becomes Party of the Rome Statue (for example, in 2015).
- Personal or territorial jurisdiction: personal means prosecuting someone if that
somebody is a national of a State Party. Alternative situation is territorial that means
that the crime must have taken place in the state that has signed the Rome Statue.
o Crime committed on territory of State Party or
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, o Crime committed by a national State Party
Or
It is possible to prosecute individuals who are not part of a State Party and did not
occur in the place where the Rome Statue is signed: UN Security Council Referral
(Libya and Darfur).
Chapter 9: Other Hybrid and Special Courts
‘Hybrid court’ is not a legal term of art but rather an imperfect descriptive label conveying a
special nature of the institution resulting from a distinct combination of international and
national elements with respect to composition, applicable law, substantive jurisdiction and so
on.
Chapter 10: Genocide
Article 6: Genocide (Rome Statue of the ICC):
For the purpose of this Statute, "genocide" means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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 births within the group;
(e) Forcibly transferring children of the group to another group
Contextual legal elements for genocide:
For something to be a genocide, the following legal contextual elements have to apply:
1. Actus Reus: any of the five specified statutory acts (Article 6 Rome Statue of the
ICC)
2. Mens Rea: intent to commit the underlying acts (i.e. murder)
3. Dolus specialis/genocidal intent: the accused had “the intent to destroy all or part of
a distinct national, ethnic, racial or religious group”
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