International Law: Unit 12 International Criminal Tribunals Prof. Fred Morrison Fall 2005.

International Law: Unit 12 International Criminal

Tribunals

Prof. Fred MorrisonFall 2005

Fall 2005 International Criminal Tribunals

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War Crimes Trials Many situations

State tries its own military personnel State tries its own civilian contractors State tries enemy POWs State tries enemy civilians State tries enemies, unclassified type Trial before foreign courts International tribunals


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History of war crimes trials

Some history pre-1900 Older precedents Andersonville

World War I Treaty of Versailles—projected trial of

the Kaiser Leipzig trials


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History of war crimes trials

World War II Nuremberg trials

London Charter Additional allied trials

Tokyo trials Subsequent trials

U.S. trial of Lieut. Calley


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The past two decades Increasing demand for accountability The Yugoslav conflict

Creation of the Yugoslav Tribunal by the Security Council

Rwanda Creation of the Rwandan Tribunal by the

Security Council Tying of prosecution and appeals to the

Yugoslav Tribunal


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The past two decades

Sierra Leone Creation of an independent Tribunal,

with the approval (but not participation) of the UN


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The movement for anInternational Criminal Court

At least 50 years old Stalled because of Cold War Opposed by the U.S.

With breakdown of Cold War and problems in Yugoslavia Increased pressure, particularly in

Europe, for an international tribunal


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The Rome Conference

Established a permanent International Criminal Court


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Types of tribunals International

Special purpose International Criminal Court

Domestic Civil courts Courts-martial Military commissions

Foreign courts


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Special International Tribunals

The Yugoslav and Rwandan Tribunals Constituting law

Security Council created under Chapter VII of the United Nations Charter

Necessary finding: There was a breach of the peace, threat to the peace, or act of aggression (art. 39, UN Charter)

Necessary vote: Security Council had to approve (possibility of veto by one of P5)


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Yugoslav Tribunal

Constitution of Tribunal Consists of 16 judges and additional

ad litem judges, divided into Pre-trial chambers Trial chambers Appeal chamber

Prosecutor and Deputy Prosecutor


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Rwandan Tribunal

Semi-separate from Yugoslav tribunal Same prosecutor; same appeals

chamber Different trial chambers


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Jurisdictional scope of the two tribunals

Defined in Security Council resolution

Limited to specified crimes (grave breaches of laws of war, crimes against humanity)

Limited to specified territory Limited to acts after specified date


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Procedures and practicesof the two tribunals Prosecutor investigates and brings

charges to Pre-Trial Chamber Pre-Trial Chamber decides whether to

issue warrant Trial Chamber (3 judges) conducts

trial Appeal chamber (5 judges) hears

appeals Scope of appeal is broader than in US law


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Two UN Tribunals:Issues and Problems

Narrow scope of jurisdiction Limited cooperation Delay

“The Jail is full” “The budget is empty”

Pressure to bring tribunals to conclusion


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International Criminal Court

Rome Conference wrote Statute, 1998

Ratified by 60 states by 2002 Went into effect July 1, 2002


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ICC: Constitution of the Court

21 judges, elected by Assembly of States Parties some experts in criminal law some experts in human rights and

humanitarian law No two to be citizens of same State

7 elected each 3 years for 9 year term


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ICC: Jurisdiction

Time: Only after date of entry into force (arts.11, 12(3))

Place or Citizenship (a)rts. 12(2), 13: Place: On [extended] territory of a

State party Citizenship: By citizen of State Party Referral: Reference by Security Council

(art.12(2), 13(b))


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ICC: Jurisdiction

Initiation of prosecution Reference by State where acts appear

to have occurred (art. 13(a)) Reference by Security Council (art.

13(b)) Initiation by Prosecutor

Prosecutor may seek information Prosecutor may ask permission of Pre-

Trial Chamber to initiate investigation


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ICC and the Security Council

Security Council may refer matters for investigation and trial It has already done so in the case of

Darfur Security Council may stop

investigations and prosecutions 12 month period; renewable It has already done so for peacekeeping


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ICC: Admissibility (Complementarity) Complementarity (art 17(1)(a) and

(b)). No ICC prosecution if: State is currently investingating or

prosecution the matter State has investigated and

determined no cause But this rules don’t apply if State is

unwilling or unable to prosecute (art 17(2), 17(3)


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ICC: Other Admissibility

Case not of sufficient gravity (art.17(1)(d)) Word on the street: 6

prosecutions/war Double jeopardy (ne bis in idem)

(arts.17(1)(c), 20(3))


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ICC: Applicable Law

Genocide Crimes against humanity War crimes And, eventually, aggression (art. 5)


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ICC: Genocide

Defined in same terms as Genocide Convention (art.6)


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ICC: Crimes Against Humanity

Preconditions: Part of a widespread or systematic

attack Directed against any civilian

population With knowledge of the attack

(art.7)


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ICC: Crimes Against Humanity Crimes, a long list (art.7), including

Torture Defined as “intentional infliction of severe

paid or suffering, whether physical or mental, upon a person in the custody or under the control of the accused, . . .”

Other inhumane acts of a similar character intentionally causing great surrering or serious injury to body or to mental or physical health


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ICC: War crimes

War crimes, “in particular when committed as part of a large-scale commission of such crimes” “Grave breaches” of Geneva

Conventions “Other serious violations of the laws

and customs applicable in international armed conflict”

List of 26 specific offenses (art. 8(b))


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ICC: War Crimes (cont’d) In non-international conflict,

violations of common article 3 (art.8(c))

And “Other serious violations of the laws and customs applicable” (art.8(e))

But not to the suppression of domestic disturbances (arts. 8(d) and 8(f))


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ICC: Aggression

ICC is to have jurisdiction over the crime of aggression (art. 5) But not until a definition and other

limitations are adopted by the Assembly of States parties (arts., 121, 123)

To be consistent with UN Charter


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ICC: Elements of Crimes and Rules of Evidence

ICC Assembly will adopt rules governing the elements of the crimes and the rules of evidence

It will also adopt the definition of aggression and limitations on its prosecution


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International Criminal Court:Problems and Issues

U.S. opposition to the Court Concern about use of force issues

Definition of Aggression problem These problems affect major decision-makers

Concerns about relation to Security Council

Concerns about definition of crimes Vagueness; “other similar acts”

Concerns about procedures


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International Criminal Court:Pending “Situations” Democratic Republic of Congo

Referred by its government; investigation underway Uganda

Referred by its government; investigation underway Darfur (Sudan)

Referred by the Security Council; investigation underway

Central African Republic Referred by its government; not yet approved by

pre-trial chamber

International Law: Unit 12 International Criminal Tribunals Prof. Fred Morrison Fall 2005.

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Transcript of International Law: Unit 12 International Criminal Tribunals Prof. Fred Morrison Fall 2005.