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 accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.
Classical international law governs the relationships, rights, and responsibilities of states. After World War II, the Charter of the International Military Tribunal and the following Nuremberg trial revolutionized international law by applying its prohibitions directly to individuals, in this case the defeated leaders of Nazi Germany, thus inventing international criminal law. After being dormant for decades, international criminal law was revived in the 1990s to address the war crimes in the Yugoslav Wars and the Rwandan genocide, leading to the establishment of a permanent International Criminal Court in 2001.
Background
International criminal law is best understood as an attempt by the international community to address the most grievous atrocities. It has not been an ideal instrument to make the fine and nuanced distinctions typical of national law, for these shift focus from those large scale atrocities that "shock the conscience", with which it is concerned. This creates significant differences of analysis between the legal systems, notably for the concept of legal intent.
History The first attempt to establish an international criminal tribunal occurred as part of the Treaty of Versailles, which stated that Wilhelm II of the German Empire was to be tried before a bench of five allied judges. However, this plan was abandoned after Wilhelm fled to the Netherlands, a non-signatory to the Treaty which subsequently refused to extradite him. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed by Nazi Germany and Imperial Japan. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on September 30th and October 1st, 1946. A similar tribunal was established for Japanese war crimes (the International Military Tribunal for the Far East), operating from 1946 to 1948.
After the beginning of the war in Bosnia, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993, followed by the International Criminal Tribunal for Rwanda (ICTR) after the Rwandan genocide in 1994. The International Law Commission also commenced preparatory work for the establishment of a permanent International Criminal Court in 1993, which began operations after the Rome Statute entered into force in 2002 (issuing its first arrest warrants in 2005).
Throughout its history, many international criminal tribunals have flouted the legal principle of nullum crimen sine lege and convicted defendants of acts that were not a crime when committed. As a result, they have faced criticism for privileging substantive justice above the principle of legality.
Sources of international criminal law
International criminal law is a subset of international law. As such, its sources are those that comprise international law. The classical enumeration of those sources is in Article 38(1) of the 1946 Statute of the International Court of Justice and comprise: treaties, customary international law, general principles of law (and as a subsidiary measure judicial decisions and the most highly qualified juristic writings). The Rome Statute governing the International Criminal Court contains an analogous, though not identical, set of sources that the court may rely on.
The rules or principles applied to a case will depend on the type of body presiding over the matter. National courts may not necessarily apply rules and principles from international law as an international tribunal might. The law as applied by specific tribunals may vary depending on the Statute of the Tribunal. They may also apply national laws if given the authority to do so as the Special Court for Sierra Leone was.
Core crimes under international law
The core crimes under international law are war crimes, genocide, crimes against humanity, and the crime of aggression.
A war crime is a violation of the law of war treaties or provisions that gives rise to individual criminal responsibility for actions committed in connection to armed conflict. These actions include intentionally killing, torturing, raping, or taking protected persons hostages; unnecessarily destroying protected civilian property; deception by perfidy; and pillaging. They also include, for any individual that is part of the command structure, who orders any attempt to commit mass killings including genocide or ethnic cleansing of protected persons; the granting of no quarter despite surrender; the conscription of children in the military; and flouting the legal distinctions of proportionality and military necessity.
Genocide is the intentional destruction of a people in whole or in part. The United Nations 1948 Genocide Convention defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." These five acts are: killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the group. Victims are targeted because of their real or perceived membership of a group, not randomly.; ; Convention on the Prevention and Punishment of the Crime of Genocide art. 2, 78 U.N.T.S. 277, 9 December 1948. Genocide, especially large-scale genocide, is widely considered to signify the epitome of human evil,; : "On any ranking of crimes or atrocities, it would be difficult to name an act or event regarded as more heinous. Genocide arguably appears now as the most serious offense in humanity’s lengthy—and, we recognize, still growing—list of moral or legal violations."; : "Genocide is an action-oriented model designed for moral condemnation, prevention, intervention or punishment. In other words, genocide is a normative, action-oriented concept made for the political struggle, but in order to be operational it leads to simplification, with a focus on government policies."; : "... genocide has become the yardstick, the gold standard for identifying and measuring political evil in our times and can be committed against protected or non-protected persons alike in the context of interstate conflicts.
Crimes against humanity are widespread or systemic criminal acts which are committed by or on behalf of a state or de facto authority that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the context of wars,Margaret M. DeGuzman,"Crimes Against Humanity" Research Handbook on International Criminal Law, Bartram S. Brown, ed., Edgar Elgar Publishing, 2011. and they apply to widespread practices rather than acts which are committed by individuals. Like genocide, crimes against humanity can be committed against people who do not fulfill the criteria of protected persons in the context of interstate conflicts and are part of an official policy or tolerated by authorities. A global standard of human rights was articulated in the Universal Declaration of Human Rights (1948). Crimes against humanity have been prosecuted by international courts (such as the International Criminal Court) as well as by domestic courts.
A crime of aggression is the planning, initiation, or execution of a large-scale and serious act of aggression using state military force. The Rome Statute contains an exhaustive list of acts of aggression that can give rise to individual criminal responsibility, which include invasion, military occupation, annexation by the use of force, bombardment, and military blockade of ports. Aggression is generally a leadership crime that can be committed only by those with the power to shape a state's policy of aggression, rather than those who carry it out. The philosophical basis for the wrongness of aggression is found in just war theory, in which waging a war without a just cause for self-defense is unjust. The International Military Tribunal ruled in 1946 that aggression was "the supreme international crime" because "it contains within itself the accumulated evil of the whole".
Prosecutions The prosecution of severe international crimes—including genocide, crimes against humanity, and war crimes—is necessary to enforce international criminal law and deliver justice to victims. This is an important component of transitional justice, or the process of transforming societies into rights-respecting democracies and addressing past human rights violations. Investigations and trials of leaders who have committed crimes and caused mass political or military atrocities is a key demand of victims of human rights abuses. Prosecution of such criminals can play a key role in restoring dignity to victims, and restoring trusting relationships in society."Criminal Justice" , International Center for Transitional Justice
James Waller concludes that
Limitations
Article 9 of the Nuremberg Charter states:
At the trial of any individual member of any group of organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.
Article 9, which was used to prosecute membership in the Schutzstaffel (SS), allows the criminalization of certain organizations (presumably state-supported) and prosecution for membership by allowing individuals to be prosecuted where evidence was otherwise insufficient. It also has some implications concerning asset seizures, reparations and other payments for damages caused by violations of international law, but does not impose criminal responsibility on organizations in their capacity as organizations. Under Article 9, the SS and several Nazi other organizations were criminalized, including the Leadership Corps of the Nazi Party.
Human rights standards have been applied to these groups in some cases, as the Inter-American Commission on Human Rights in Colombia until 1999. The application of human rights treaties to these groups remains the exception, rather than the rule. Human rights are usually understood conceptually as those rights individuals hold against the state, and some scholars argue that they are poorly suited to the task of resolving disputes that arise in the course of armed conflict between the state and armed opposition groups.
Institutions of international criminal law
Today, the most important institution is the International Criminal Court (ICC), as well as several ad hoc tribunals: International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda Apart from these institutions, some "hybrid" courts and tribunals exist—judicial bodies with both international and national judges: Special Court for Sierra Leone (investigating the crimes committed the Sierra Leone Civil War) Extraordinary Chambers in the Courts of Cambodia (investigating the crimes of the Red Khmer era) Special Tribunal for Lebanon (investigating the assassination of Rafik Hariri) Special Panels of the Dili District Court War Crimes Chamber of the Court of Bosnia and Herzegovinatrial-ch.org. Accessed 13 August 2015. Kosovo Specialist Chambers and Specialist Prosecutor’s Office Special Tribunal for the Crime of Aggression against Ukraine Some domestic courts have also been established to hear international crimes, such as the International Crimes Tribunal (Bangladesh).
International Criminal Court