1.

Abstract
This paper looks forward to explain about the background and the introduction of International
Criminal Court, The Hague, Netherlands. It talks about the formation of the same in 2002 after
the Rome Statute and then later goes forward to put light on the structure of it. It then mentions
other International Criminal Tribunals like, International Criminal Tribunal for Rwanda and
Yugoslavia and Sierra Leonne. It talks about their jurisdiction as well as their structure and
ends with a brief conclusion.
2. Introduction
Criminal tribunals are established to prosecute war criminals where mass violation of
international Humanitarian law takes place. The practice of establishing criminal tribunals is to
ensure that certain heinous crimes concerning the whole international community are prosecuted
jointly at the international level rather than leaving it simply to national courts. 1

International Criminal Court is the first permanent court set up to try individuals for genocide,
war crimes and other major human rights violations. The Rome Statute of the International
Criminal Court was established in 1998, and the treaty entered into force on July 1, 2002. It is
the first permanent, treaty based, international criminal court established to help end impunity for
the perpetrators of the most serious crimes of concern to the international community.

3. Historical Background
In the past we had practice of international criminal justice, but either they had limited
jurisdiction or they had short lived experiments. The fact is that they were not successful in line
with the present performance. For example, the first effort to try perpetrators of crimes against
humanity from internationally established courts and tribunals were made during the 19th
2
century. Between the congress of Vienna and the end of the American Civil War, several
treaties for the suppression of the African slave trade provided for the establishment of special
mixed tribunals to adjudicate upon suspected of slave trading. However the precedent practice
does not lay a strong ground for the present establishment of international criminal tribunals.
The devastating effects of World War II, The Nuremberg and Tokyo military trials, established
to prosecute German and Japanese war criminals laid a strong background in the history of

1
Cesare P.R. Romano,”New Dimensions on Multilaterism” available at: http://www.cic.nyu.edu (Last visited on
April 22, 2020).
2
Ibid.

1
prosecution under international tribunal. They also had their drawbacks, however. They were
criticized for playing fast and loose with principles of criminal law to ensure convictions, for
their slanted military character, and because their ultimate legitimacy rested on the victor’s right
to decide the fate of the defeated enemy rather than on a independent judiciary.

After Second World War, in the period of Cold War, international community just played a role
of spectator than trying the war criminals of Cold War into international tribunals. Till 1990, no
international tribunals were created. To put it simply, the prevailing logic was: your enemies are
my allies, however murderous and crazy they may be. Prosecution of violations of international
humanitarian law and gross violations of human rights were left to domestic courts in theory, and
left unpunished in practice. 3 Only after the Cold War, during 1990s, the initiatives to try persons
alleged as war criminals in the international tribunals took a concrete shape with the creation of
the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR) by the UN Security Council. The establishment of these
two tribunals raised some concerns about ad hoc justice. This concern, together with the
momentum created by the creation of ICTY and ICTR, opened the way for the establishment of
the International Criminal Court (ICC), a permanent criminal court.
4. International Criminal Court
The International Criminal Court, established in 2002, seeks to hold to account those guilty of
some of the world’s worst crimes. Champions of the court say it deters would-be war criminals,
bolsters the rule of law, and offers justice to victims of atrocities. But, since its inception, the
court has faced considerable setbacks. It has been unable to gain the support of major powers,
including the United States, China, and Russia. Two countries have withdrawn from the court,
and many African governments complain that the court has singled out Africa. 4
The International Criminal Court (ICC) is a separate international organisation that is not part of
the United Nations system. Its headquarters are in The Hague, Netherlands. Although States
Parties pay the majority of the Court's expenses, it also receives voluntary contributions from
governments, international organisations, individuals, corporations, and other entities. The

3
Supra note 1.
4
Claire Felter, “The Role of the International Criminal Court” available at : https://www.cfr.org (Last visited April
26th, 2021).

2
international community has long desired the establishment of a permanent international court,
and in the twentieth century, it reached agreement on definitions of genocide, crimes against
humanity, and war crimes. The Nuremberg and Tokyo trials dealt with war crimes, crimes
against peace, and crimes against humanity committed during WWII. 5 Tribunals such as the
International Criminal Tribunal for the former Yugoslavia and the International Criminal
Tribunal for Rwanda were established in the 1990s, following the Cold War's end, as a result of a
consensus that impunity is unacceptable. However, because they were created to try crimes
committed only within a specific time frame and during a specific conflict, there was widespread
agreement that an independent, permanent criminal court would be preferable. The international
community reached a watershed moment on July 17, 1998, when 120 countries adopted the
Rome Statute, the legal foundation for establishing the permanent International Criminal Court.
5. Jurisdiction of Icc
Subject Matter Jurisdiction
The Court's subject-matter jurisdiction is the crimes for which individuals can be prosecuted.
Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes
are listed in article 5 of the Statute and defined in later articles:
I. genocide (defined in article 6),
II. crimes against humanity (defined in article 7),
III. war crimes (defined in article 8)and
IV. crimes of aggression (defined in article 8 bis).
V. In addition, article 70 defines offences against the administration of justice, which are also
crimes for which individuals can be prosecuted. 6

Territorial Jurisdiction
The territorial jurisdiction of the Court includes the territory, registered vessels, and registered
aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the
Court's jurisdiction by filing a declaration with the Court.7
Personal Jurisdiction

5
The International Criminal Court, available at: https://www.amnestyusa.org (last visited on April 28, 2021).
6
The Rome Statute, 2002, art 70.
7
The Rome Statute, 2002, art 69.

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The Court's personal jurisdiction extends to all natural persons who commit crimes, regardless of
where they are located or where the crimes were committed, as long as those individuals are
nationals of either (1) states parties to the Rome Statute or (2) states that have accepted the
Court's jurisdiction by filing a declaration with the Court.
UNSC Privilege
When the United Nations Security Council refers a case to the Court, the Security Council
defines the territorial and personal jurisdiction, which may be more expansive than the Court's
normal territorial jurisdiction.
Temporal Jurisdiction
Temporal jurisdiction is the time period over which the Court can exercise its powers.However,
the Court's jurisdiction is not completely retroactive. Individuals can only be prosecuted for
crimes that took place on or after 1 July 2002, which is the date that the Rome Statute entered
into force.
6. Other International Criminal Tribunals
Mass violation of international humanitarian law in the former Yugoslavia and in Rwanda led the
Security Council (SC) of the United Nations to establish two international tribunals to prosecute
persons responsible for such violations. Both tribunals were established under Chapter III of the
Charter of The UN, which deals with enforcement measures. The Tribunals created by the
international community as a new response to intractable conflict and mass violation of human
rights and humanitarian law are now in their second decade of existence after years of
investigations, trial and sentencing. In Rwandan conflict, the Genocide and ethnic cleansing was
the violation of Geneva Conventions Common Article 3 as the conflict was internal in its
character. But in Former Yugoslavia, the issue was internal as well as international.

7. International Criminal Tribunal For Rwanda (ICTFR)

ICTR was established in November 8, 1994 by the SC resolution 955 for the prosecution of the
persons responsible and other serious violations of international humanitarian law in the territory
of Rwanda between 1 January 1994 and 31 December 1994. 8

8
International Criminal Tribunal for Rwanda, available at: http://www.ictr.org/default.htm (last visited on April 26,
2021).

4
It may also deal with the prosecution Rwandan citizens responsible for Genocide and other such
violations of international law committed in the territory of neighbouring states during the same
period9. The tribunal is located in Arusha, Tanzania; the Office of the Prosecutor is in Kigali,
Rwanda. In 1998, the Tribunal handed down the first ever conviction of genocide by an
international court.
Structure –
The structure is similar to that of ICTY. It has office of prosecutor, the registry and that
chambers. To ensure a consistent jurisprudence between the ICTY and ICTR they shared a joint
appeals chambers in Hague. Originally the appeals chambers was staffed by judges from the
ICTY. This gave rise to the feeling that ICTR was a poor cousin of ICTY, but was rectified in
2000 when two ICTR judges were appointed to that chamber. Originally, the ICTY and ICTR
shared the same prosecute. However, the job was spilt in 2003 and a separate prosecutor for
ICTR was appointed. The ICTR has always had its own President.
Jurisdiction -

Like ICTY it has jurisdiction over war crimes, crimes against humanity and genocide, although
definitions of these two are different in ICTR.

In particular the definition of crimes against humanity has an additional requirement of

discrimination of all crimes against humanity (article 3).

The jurisdiction of the ICTR over war crimes is limited to those in non international armed
conflict (article 4).

ICTR’s primacy over domestic courts is in the same way as the ICTY. Also, it can refer cases to
domestic jurisdictions.

Practice of ICTR -

The ICTR began at a snail’s pace. Also staffing was a problem, recruitment being difficult and
slow. Also funding for the tribunal at the time was inadequate.

9
Ibid.

5
The Registry was singled out for very heavy criticism, in particular for financial irregularities,
employing under qualified staff and weak assest management. The office of the prosecutor was
considered to be insufficient and beset by leadership failure by the Deputy Prosecutor.

Of the three organs only the chambers escaped serious criticism. As a result of the report, both
the Registrar’s and the Deputy Prosecutors resignations were sought and obtained.

Also, attempts were made to recruit appropriate people to managerial positions and to improve
financial discipline.

8. International Criminal Tribunal for the Former Yugoslavia (ICTY)

ICTY was established in 1993 as a United Nations court of law dealing with war crimes that took
place during the conflicts in the Balkans in the 1990’s. Since its establishment, it has irreversibly
changed the landscape of international humanitarian law and provided victims an opportunity to
voice the horrors they witnessed and experienced 10. The Tribunal is composed of four chambers,
a prosecutor and a registry, and is located at The Hague the Netherlands. Under its Statute it can
prosecute four kinds of offences: grave breaches of the Geneva Conventions; violations of the
laws and customs of war; genocide; and crimes against humanity.
Background –

Conflicts in Yugoslavia in 1991 were characterized by large scale violations of international

criminal law committed especially against civillians, most notably sexual offences and the
practise of ‘ethnic cleansing’. Pictures of concentration camps in Bosnia which evoked the
memories of Holocaust caused public outcry and led to the demands that something needs to be
done about the situation.

The members of the UNSC were reluctant to risk endangering their troops by taking military
action, but in October 1992 the Security Council created a Commission of Experts to investigate
war crimes in the region. In its interim report, the commission called on the UNSC to create “an
ad hoc international tribunal” to prosecute crimes in former Yugoslavia. The UNSC unanimously
mandated the Legal Council of UN Secretary General to draft a statute for the tribunal. This
statute was then unanimously adopted, which related to international peace and security.

10
About the ICTY, available at: http://www.icty.org/sections/AbouttheICTY (last visited on April 30, 2021).

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The creation of ICTY was an innovation in international responses to mass violence and a
landmark event in the development of transitional justice.

From 1997, international actors became more supportive of the tribunals work and it became an
effective institution. 11

Structure-

 REGISTRY – the registry is responsible for the administrative management of the

tribunal, including for example – the victims and witnesses programme, transport of the
accused their conditions of detention and public affairs.

 THE OFFICE OF PROSECUTOR – it is the organ whose responsibility is to investigate

allegations, issue indictments(which have to be confirmed by a judge) and bring matters
to the trial.

 THE CHAMBERS- the final organ of ICTY is the chambers. It consists of a presiding
judge and two other judges, they are subject to the appellate control of the Appeals
chamber. This seven member chamber sits in the panel of five is headed by the President
and is the final authority on matters of law in the tribunal.

Jurisdiction

 The ICTY had jurisdiction over war crimes, crimes against humanity and genocide
committed after 1 January 1991 on the territory of former Yugoslavia.
 Article 2 grants the tribunal jurisdiction over grave breaches of the Geneva Conventions
(which only apply in international armed conflict).
 Article 3 provides the tribunal with jurisdiction over a non exhaustive list of violations of
the laws of war or the customs of war.
 Aggression is not included in the jurisdiction of ICTY. The open ended nature of the
temporal jurisdiction of the tribunal means that it has jurisdiction over the later conflicts
in Kosovo and the Former Yugoslav Republic of Macedonia and over peacekeepers in
the area, which are not anticipated by the drafters.
9. Sierra Leonne
11
Ibid.

7
Introduction and Background –
The Special court for Sierra Leonne (SCSL) was created in 2002 through an agreemeny
between Sierra Leonne and the United Nations in response to the atrocities committed during
the civil war, that ravaged the country through the 1990s.
The protracted conflict in Sierra Leone opposed pro government forces, namely the Civil
Defense Forces (CDF) to two rebel groups the Revolutionary United Front (RUF) and the
Armed forces Revolutionary Council (AFRC), as well as each fractions respective
international allies. By the early 1990s, unemployment in Sierra Leonne was widespread and
the educational system had collapsed. Leaders of the RUF, aided by Charles Taylor emerged
out of this discontent with the objective of overthrowing the ruling government taking
control of the country’s diamond mines. In 1997, a rebel fraction of the Sierra Leonne Army,
the AFRC, carried out a coup de etat against the democratically elected government. The
AFRC, then aligned itself with the RUF in an uneasy power sharing agreement , which
opposed them to the pro government CDF. After the signing and subsequent collapse of
numerous peace agreements between the government and the rebel forces, the civil war
officially ended in January 2002. Throughout, the conflict in Sierra Leonne was marked by
exceptional brutality, including the widespread conscription of children as soldiers and
sexual slaves and the physical mutilation of civilians. An estimated 50,000 people were
killed during the Sierra Leonne conflict, while countless were forced to flee their homes.
Jurisdiction –
The SCSL had the jurisdiction to try any persons who committed crimes against humanity,
against civilians that included: murder, extermination, enslavement, deportation,
imprisonment, torture, rape, sexual slavery, forced prostitution or any other form of sexual
violence, persecution on the basis of politics, race, ethnicity or religion and other inhumane
acts. In addition the court would have jurisdiction to prosecute those who violated the
Geneva Convention of 1949, as well as Sierra Leonne’ s Prevention to Cruelty to Children
Act, 19926. For the abuse of girls and Malicious Damage Act 1861. However, the court
doesn’t have jurisdiction over those under the age of 15. Also, it doesn’t have any right to
give death sentences. Moreover, it doesn’t include genocide and Grave Breaches of Geneva
Conventions of 1948. Further, it is superior to any court of Sierra Leonne and could
precedence in cases of conflicting jurisdiction.

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Structure –
The SCSL consists of three institutions, these are Registry , the Prosecutor, the Chambers(for
trials and appeals). The Registry is responsible for the overall management of the court.
 CHAMBERS – the statute of the court indicated eight to eleven judges. Three would
serve in thr trial chamber ( of which one would be appointed by the Sierra Leonne
Government and two would be appointed by the UN Secretary General ) and five would
serve in the appeals chamber ( of which two would be appointed by the Sierra Leonne
Government and three would be appointed by the UN Secretary General).
Procedures –
 Procedure before the SCSL also largely mirror those of the ICTY and ICTR. Thus, the
SCSL’s statute and its Rule of Procedure and Evidence outline the procedure applicable
to cases brought before the tribunal. Under these documents, the Prosecutor has broad
discretion to initiate investigations and to indict individuals suspected of crimes that are
within the parameters of the SCSL’s jurisdiction.
 Formal charges against a defendant are marked by the confirmation of an indictment by a
pre trial judge. Following their arrest or voluntary surrender, defendants then appear
before the SCSL, where they enter a plea of guilty on each count of the indictment
against them.
 Typically, a case will then proceed to trial, at the conclusion of which the trial chamber
will issue a trial judgment which determines the defendant’s guilt or innocence. The trial
chamber’s determinations can be appealed to the appeals chamber, which following an
appeals hearing, issues a appeals judgment affirming, reversing or revising the trial
judgment. Defendants still in custody who are acquitted on appeal are released.
 More generally, proceedings against defendants before the SCSL may be terminated if
their indictment is withdrawn or if their case is referred to competent jurisdiction and
where a defendant dies.
10. Conclusion
International criminal law is a relatively new body of law, and aspects of it are neither
uniform nor universal. For example, some aspects of the law of the ICTY are unique to that
jurisdiction, do not reflect customary international law and also differ from the law of the
ICC. Although, there are various interpretations of the categories of international crimes.

9
These crimes comprise genocide, crimes against humanity, war crimes and the crime of
aggression.They do not include piracy, terrorism, slavery, drug trafficking, or other
international crimes (whether or not also criminalised in the national laws of Croatia, and
Serbia) that do not amount to genocide, crimes against humanity, or war crimes.

10