||International criminal law
The principle that individuals are and can be held criminally accountable for violations of the laws of war dates back to many years. However, it was only after World War II and the Nuremberg and Tokyo trials, set up to judge those German and Japanese military leaders accused of serious crimes during the war, that the idea of individual criminal responsibility for serious breaches of international law gained ground.
The current system of international criminal law works through international ad hoc tribunals, internationalised or mixed tribunals, the International Criminal Court as well as national courts (military tribunals and ordinary courts). One of the legal consequences of framing an act as an international crime is that it may give rise to what is called universal jurisdiction, which allows any state to try alleged perpetrators, even in the absence of any link between the accused and the state exercising jurisdiction.
Following World War II, early efforts to establish a permanent international criminal court to ensure individual accountability for international crimes did not go far as a result of Cold War tensions. Moreover, the system instituted by the 1949 Geneva Conventions to punish ("repress") grave breaches of international humanitarian law through national courts was not put in practice. A breakthrough came in 1993 and 1994 with the establishment by the UN Security Council of two ad hoc international criminal tribunals: for the former Yugoslavia and Rwanda.
Other criminal tribunals with diverse international dimensions have since been set up in Cambodia, East Timor, Kosovo and Sierra Leone, though these courts have also included national legal elements in their establishment and implementation. These "internationalised" or "mixed" tribunals are established with the consent of the state on whose territory the atrocities were committed.
A further landmark in the international justice system occurred in 1998 with the adoption of the 1998 Rome Statute for an International Criminal Court. The ICC, which began to operate in 2002, has a mandate to try cases involving war crimes, crimes against humanity, and genocide. The Court is intended to complement existing national judicial systems and can exercise its jurisdiction only if national courts are genuinely unwilling or unable to investigate or prosecute such crimes. (Article 17 of the 1998 Rome Statute of the ICC)
An international crime has been broadly defined as “an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances”. (1) Today, international criminal liability exists at least in respect of war crimes, crimes against humanity, genocide and torture. Other crimes such as terrorism-related crimes, enforced disappearances and extrajudicial killings can arguably also be considered international crimes but will not be dealt with here.
refer to “grave breaches”, as specified in the 1949 Geneva Conventions and Additional Protocol I, along with other serious violations of international humanitarian norms applicable in international and non-international armed conflict (see Qualification of armed conflict paper). Despite the criminalisation of acts committed in non-international armed conflicts, important differences remain between the laws applicable in such conflicts and those applicable to international armed conflict, as evidenced by the shorter list of war crimes that the ICC can prosecute in the context of non-international armed conflicts (see Article 8 of the 1998 Statute of the ICC).
encompass serious attacks on human dignity or a grave humiliation or degradation of human beings, the Rome Statute requires that they be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Such crimes can be committed in time of peace as well as during an armed conflict (see article 7 of the 1998 Statute of the ICC).
covers acts such as murder or serious bodily or mental harm, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
is generally considered to be an aggravated form of inhuman treatment. Torture is not only prohibited as a war crime or when it is part of a widespread or systematic practice amounting to a crime against humanity but is also prohibited as a single act.
Under common Article 3 of the 1949 Geneva Conventions and the 1998 ICC Statute, torture is outlawed as a war crime or a crime against humanity with regard to both state actors and non-state armed groups.
The notion of transitional justice comprises a range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice, and achieve reconciliation.(2) It implies that the role of justice in situations of transition is different from its role at other times. Transitional justice can take many forms. However the importance of justice as a means of transition to peace and reconciliation takes centre stage, whether the means used are punitive such as criminal trials or restorative such as truth and reconciliation commissions. This concept emerged in the mid-1990s and seems to have originated in a desire to return elements of justice to the centre of the transition process, as a precondition for true peace.(3)
For questions or further discussion, contact Annyssa Bellal at rulac (at) adh-geneva.ch
(1) US v. List et al., 19 February 1948, Trials of War Criminals Before the Nuernberg Tribunals under Control Council Law No. 10 (Washington, DC: US Government Printing Office, 1950) Vol IX 1230, 1241.
(2) Report of the Secretary-General to the UN Security Council, “The rule of law and transitional justice in conflict and post-conflict societies”, 23 August 2004, UN doc. S/2004/616, § 8.
(3) See T. Pfanner, Editorial, International Review of the Red Cross, Special issue on Truth and Reconciliation Commissions, Vol. 88, No. 862, June 2006.
Bassiouni, M.C., Introduction to International Criminal Law, Transnational Publishers, 2003.
Cassese, A., International Criminal Law, Oxford University Press, 2nd edition, 2008.
Cassese A., Gaeta P. and Jones J.R.W.D. (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002.
Cryer, R., Friman, H., Robinson, D., and Wilmshurst, E. , An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2007.
De Greiff, P. (ed.), The Handbook on Reparations, Oxford University Press, 2006.
Romano, C., Nollkaemper, A., Kleffner, J., (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford University Press, 2004.
Schabas, W.A., The UN International Criminal Tribunals. The former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, 2006.
Teitel, R.G., Transitional Justice, Oxford University Press, 2000.
Zahar, A. & Sluiter, G., International Criminal Law, Oxford University Press, 2008.
Journal of International Criminal Justice
The Academy experts meetings papers
Keywords: Derecho penal internacional, droit pénal international, diritto criminale internazionale