1. International Criminal Courts
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made
clear that the category of "crimes against humanity" (the category of
"violation of peace" alike) would interfere with a state's sovereignty
with respect to domestic jurisdiction and governmental activities, such
as the waging of war. Also, the category of "crimes against humanity"
would be contary to the universal principle "nullum crimen sine lege"
(Art. 22 Rome), as no such category of crimes was recognized before the
IMT was set up.
The first international case to give rise to a wide recognition of
individual responsibility for war crimes, whether they were committed on
an international scale or within the boundaries of a state, was the
Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals.
The Court has jurisdiction over natural persons pursuant
to the Statute, according to Article 25 of the Rome Statute. The
International Criminal Court was established by the Rome Statute. The
jurisdiction of the ICC is based on the principle of complementarity, as
Article 1 of the Rome Statute reads. The primacy of domestic courts
with respect to exercising jurisdiction over crimes, implies that the
ICC only has jurisdiction when a State is unwilling or unable genuinely
to carry out the investigation or prosecution, as Art. 17 ( Issues of
admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the
material jurisdiction, consists of four core crimes, as Article 5 of
Rome puts it: "The jurisdiction shall be limited to the most serious
crimes of concern to the community as a whole. The Court has
jurisdiction with respect to: the crime of genocide, crimes against
humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the
fulfilment of actus reus and mens rea. With respect to actus reus, the
crimes of genocide, war crimes and crimes against humanity are covered
by articles 6-8 of the Rome Statute, the category of war crimes being
the most elaborate. For an individual to be prosectuted and ultimately
convicted for the crime of genocide, the decisive criterion is to be
found in Article 2 of the Genocide Convention: the requirement of an
intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech, a name that oddly translates as Mr. Cross-stitch) case has set
out that the term "in part", as meant in Article 3 of the Genocide
Convention, contains a substantiality requirement. The Trial Chamber
determined that Krstic had the intent to kill, thus, the requirements of
Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić).
Although the ICTY Appeals Chamber in the Judgment of 19 April 2004
acknowledges that the Trial Chamber should have exressed its reasoning
more carefully (para 22), the remark is made that the Trials Chamber was
correct when determining that the part of the group that has been
killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to
destroy this substantial part of a group, the Trial Chamber did not
depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a
"specific intent" exists when there is "knowledge of the attack". This
is a less strict criterion than is the "intent to destroy" requirement
for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent
to kill"? The mental element as such, mens rea, is described in Article
30(2) of the Rome Statute of the ICC: a person has intent where (a) in
relation to conduct, that person means to engage in the conduct; (b) in
relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in
Articles 31 and 32 of the Rome Statute. Article 33 provides possible
grounds for the exclusion of criminal responsibility; paragraph 1 gives a
negative formula: "..shall not relieve that person of responsibility,
unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in
part 3 of the Rome Statute, define the temporal jurisdiction of the
ICC: from "nullum crime sin lege", "nulla poena sine lege" and the
non-retroactivity ratione personae, follows that the Court has no
jurisdiction with respect to criminal activities committed prior to the
entry into force of the Rome Statute, see Art. 11 along with 24 of the
Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory
of which the conduct has taken place, is a party to the Rome Statute or
has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art.
12 Rome Statute). From this follows that the ICC can exercise
jurisdiction if the state of which an accused individual is a national,
is a party to the Rome Statute or has accepted its jurisdiction as set
out.
Note that the limitation of territorial and personal jurisdiction does
not apply to the situations as provided for in Articles 13(b) and 15 ter
of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its
complementary role, Article 12(2) of the Rome Statute provides that
State consent is a precondition to the exercise of jurisdiction by the
ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN
Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by
the Prosecutor, Article 13(a) and (c) Rome, are subject to the
conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is
complementary; the Court has no primacy, as states have first
responsibility, unless they are unwilling or genuinely unable to carry
out investigation or prosecution, which is an issue of admissibility.
Once a case is genuinely being investigated or prosecuted by a domestic
court, the case will no longer be admissible before the ICC: look up
relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the
International Criminal Tribunal of the former Yugoslavia shall have
primacy over national courts, in accordance with Art. 9(2) of the ICTY.
The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of
the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction
provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in
common: the permanent status of the ICC demands from the Court that
individuals only be prosecuted for or convicted of crimes that meet the
condition of nullum crime sini lege in accordance with Article 22 of the
Rome Statute. No such provisions are to be found in the ICTY and ICTR:
the International Criminal Tribunals are able to respond to recent
activities, regardless of a strict ex ante codification of crimes that
the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for
punishment for a crime within the jurisdiction of the ICC, if that
person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted
commission of such a crime. Such contribution shall be intentional and
shall either be made with the aim of furthering the criminal activity or
be made in the knowledge of the intention of the group to commit the
crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces
under his effective command and control, where that military commander
either knew or should have known that the forces were committing such
crimes and that military commander failed to take necessary and
reasonable measures within his power to prevent or repress their
commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a
Government or a superior, shall not relieve that person of
responsibility, unless that person was under a legal obligation to obey,
the person did not know that the order was unlawful and the order was
not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However,
the crime of genocide and crimes against humanity are manifestly
unlawful; thus, a person cannot be relieved from responsibility with
respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to
individual responsibility shall affect the responsibility of States
under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn
between the subjective territoriality (initiation of a crime) and the
objective territoriality/ effects doctrine (fulfilment of a criminal
offence). If two states are concerned, both the state in which the crime
was initiated and the state in which the crime was executed, are
entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its
jurisdiction over its own nationals, regardless of the territory on
which a crime was committed.
The passive nationality principle aims to protect a state's own
nationals against offences, even if they are committed by another
national in another state. Exercising passive nationality would
interfere with the right of another state to exercise its territorial
jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction
over non-nationals in the territory of another state. The requirement is
that an offender commits a crime that affects the vital interests of a
state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection
against the commission of such crimes is required, regardless of
territoriality and nationality issues. From this follows that states
need to exercise universal jurisidiction with respect to the prosecution
of offenders.
Note that treaty law imposes on states, party to a treaty, the
obligation to exercise universal jurisdiction regarding the repression
of universally recognized, grave crimes. The crimes of genocide and
torture are crimes of such gravity. Article 6 of the Genocide Convention
stipulates that an offender shall be tried by a competent tribunal,
which may exercise its jurisdiction over the territory of the Party
State in which the crime of genocide was committed. The preamble to the
Torture Convention reads that "the desire is to make more effective the
struggle against torture and other cruel treatment throughout the
world". Article 7 of the Torture Convention stipulates that the State
Party submit the case to its competent authorities for the purpose of
prosecution, assumed that the requirements from Art. 4-6 have been met
(territory issues).
5. The jurisdiction of the ICTY and ICTR
While
the ICC and Neuremberg Tribunal were established by a treaty, the ICTY
and ICTR were established by binding Resolutions of the UN Security
Council, acting under the provisions of Chapter VII of the UN Charter.
Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the
Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995
remarks that, according to the principle of "Kompetenz-Kompetenz" or
"la compétence de compétence", the Tribunal has the incidental or
inherent competence jurisdiction to determine its own jurisdiction (para
18). It is a necessary component of in the exercise of the judicial
function of the tribunals and as such, this practice was accepted by
general international law.
With respect to the questioning of the
power of the UNSC to set up ICTY by means of a resolution, the Appeals
Chamber determines that the legal basis is to be found in the authority
of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although
the Tribunals have concurrent jurisdiction with domestic courts, the
Tribunals have primacy with respect to the prosecution of international
crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY
Statute.
The second ground of appeal in the 1995 Tadić Decision
on the Defence Motion by the ICTY Appeals Chamber attacks the primacy
of the International Tribunal over domestic courts (para 49).
However,
the plea of State sovereignty must be dismissed. The Appeals Chamber
provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity]
brought about the establishment of an international judicial body by an
organ of an organization representing the community of nations: the
Security Council. This organ is empowered and mandated, by definition,
to deal with trans-boundary matters which may affect "international
peace and security". It would be a travesty of law, should the concept
of State sovereignty be allowed to be raised succesfully against human
rights. When an international tribunal such as the present one is
created, it must be endowed with primacy over national courts.
Otherwise, there would be a danger of international crimes being
characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One
final remark on the immunity of HRSO from foreign jurisdiction. It
should be clear that an incumbent HRSO or a former HRSO with respect to
crimes committed in acting out official capacities, cannot enjoy
immunity before the ICC and the International Tribunals. Article 27 of
the Rome Statute stresses that HRSO do not enjoy immunity before the
ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the
"official position of any accused person, whether as Head of State of
Government, shall not relieve such person of criminal responsibility nor
mitigate punishment".
