International Criminal Law

WHAT IS PUBLIC INTERNATIONAL

LAW?
In general, public international law governs the actions of
states and how states interact with each other and individual
citizens. Public international law involves rules and
principles that deal with the conduct, rights and obligations
of states and international organisations, as well as dealing
with relations among states.
WHAT IS INTERNATIONAL
CRIMINAL LAW?
International criminal law is a subset of public international law, and is
the main subject of these
materials.
While international law typically concerns inter-state relations,
international criminal law concerns individuals. In particular, international
criminal law places responsibility on individual persons—not states or
organisations—and proscribes and punishes acts that are defined as
crimes by international law.
International criminal law also includes laws, procedures and principles
relating to modes of liability, defences, evidence, court procedure,
sentencing, victim participation, witness protection, mutual legal assistance
and cooperation issues. Each of these topics will be addressed in these
materials.
WHAT IS INTERNATIONAL
CRIMINAL LAW?
International criminal law is a subset of public international law, and is
the main subject of these
materials.
While international law typically concerns inter-state relations,
international criminal law concerns individuals. In particular, international
criminal law places responsibility on individual persons—not states or
organisations—and proscribes and punishes acts that are defined as
crimes by international law.
International criminal law also includes laws, procedures and principles
relating to modes of liability, defences, evidence, court procedure,
sentencing, victim participation, witness protection, mutual legal assistance
and cooperation issues. Each of these topics will be addressed in these
materials.
OVERVIEW OF THE FIVE
SOURCES OF ICL

1) treaty law;
2) customary international law (custom, customary
law);
3) general principles of law;
4) judicial decisions (subsidiary source); and
5) learned writings (subsidiary source).
INTERNATIONAL CRIMES

An international crime is a crime whose existence and definition is

anticipated by international law (e.g.: a treaty). All ICL crimes that have
been created by treaty share the characteristic that they must be
criminalized under domestic law.
 Genocide
 Crimes against humanity
 War crimes
 Crime of Aggression (a specific crime wherein someone
plans, begins, or carries out an act of aggression through
the use of state military force and that violates the
Charter of the United Nations).
GENOCIDE: described as “the crime
of crimes” by the ICTR
Article 6 of the Rome Statute of the ICC states that: "genocide" means any of
the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
 (a) Killing members of the group;
 (b) Causing serious bodily or mental harm to members of the group;
 (c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
 (d) Imposing measures intended to prevent births within the group;
 (e) Forcibly transferring children of the group to another group.

Most importantly and distinctively (in relation to crimes against humanity for
example), these acts must have been committed with a particular intention
(sometimes known as the “special mens rea” or “dolus specialis”), that of
destroying “in whole or in part” the target group “as such”.
 CRIMES AGAINST HUMANITY
Under the Roman Statute of the ICC Article 7 (1):
For the purpose of this Statute, "crime against humanity" means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack:

 (a) Murder; (b) Extermination; (c) Enslavement;

 (d) Deportation or forcible transfer of population;
 (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law;
 (f) Torture;
 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
 (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the Court;
 (i) Enforced disappearance of persons;
 (j) The crime of apartheid;
 (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
 WAR CRIMES
The ICC Statute has since made the most concerted effort to align the two. With their definition in
Article 8, 1 & 2:
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of
a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, "war crimes" means:

 (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following
acts against persons or property protected under the provisions of the relevant Geneva
Convention:
 (i) Willful killing;
 (ii) Torture or inhuman treatment, including biological experiments;
 (iii) Wilfully causing great suffering, or serious injury to body or health;
 (iv) Extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly;
 (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile
Power;
 (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular
trial;
 (vii) Unlawful deportation or transfer or unlawful confinement;
 (viii) Taking of hostages.
GENEVA CONVENTIONS AND ADDITIONAL PROTOCOLS
GENEVA CONVENTIONS AND ADDITIONAL PROTOCOLS
 SEXUAL OFFENSES
One of the most significant substantive developments in ICL since the 1990s is an
increasing recognition of the role of sexual crimes in genocide, crimes against humanity
or war crimes. Statute of ICC Article 8 Section 2 e (vi) states:

 (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as

defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of
sexual violence also constituting a serious violation of article 3 common to the four
Geneva Conventions;
 Attention to the particular experience of women in contexts of violence, has led to
innovative prosecutorial strategies that aim to transcend some of ICL’s traditional
gender-blindness.
 As a crime against humanity, sexual offences now include, as stated in the Statute of
the ICC in Article 7 (g):
 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
 Finally, sexual violence has increasingly been recognized as a tool of genocide
(because of the way it victimizes a significant part of the group, but also to the extent
that it leads to unwanted pregnancies).
AGGRESSION

The crime of aggression means "the planning, preparation, initiation or

execution, by a person in a position effectively to exercise control over or to
direct the political or military action of a State, of an act of aggression which,
by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations."
The act of aggression means "the use of armed force by a State against
the sovereignty, territorial integrity or political independence of another State,
or in any other manner inconsistent with the Charter of the United Nations."
These acts can include, among others, invasion, military occupation,
and annexation by the use of force, blockade by the ports or coasts.

Rome Statute of the International Criminal Court articles 8 bis 1 and 2.

 DEBATES:
The right of peoples to self-determination Vs the principle of
territorial integrity of a state
Charter of the UN
Article 2
All Members shall settle their international disputes by
peaceful means in such a manner that international
peace and security, and justice, are not endangered.
All Members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
All Members shall give the United Nations every
assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving
assistance to any state against which the United
Nations is taking preventive or enforcement action.
United Nations Declaration on the Rights of
Indigenous Peoples
 Article 1
Indigenous peoples have the right to the full
enjoyment, as a collective or as individuals, of all
human rights and fundamental freedoms as
recognized in the Charter of the United Nations, the
Universal Declaration of Human Rights4 and
international human rights law.
Article 3
Indigenous peoples have the right to self-
determination. By virtue of that right they freely
determine their political status and freely pursue their
economic, social and cultural development.
 
The Organization shall ensure that states which are
not Members of the United Nations act in
accordance with these Principles so far as may be
necessary for the maintenance of international
peace and security.
 DEBATES:
Non-intervention in internal affairs Vs Respect for human rights and fundamental
freedoms, including the freedom of thought,
conscience, religion or belief
Resolution adopted by the General Assembly 60/1. 2005 World Summit Outcome
 
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity

138. Each individual State has the responsibility to
protect its populations from genocide, war crimes,
ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes,
including their incitement, through appropriate and
necessary means. The international community
should, as appropriate, encourage and help States to
exercise this responsibility and support the United
Nations in establishing an early warning capability.
139. The international community, through the United
Nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other
peaceful means, in accordance with ChaptersVI and
VIII of the Charter, to help to protect populations
from genocide, war crimes, ethnic cleansing and
crimes against humanity. In this context, we are
prepared to take collective action, in a timely and
decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII,
on a case-by-case basis and in cooperation with
relevant regional organizations as appropriate,
should peaceful means be inadequate and national
authorities are manifestly failing to protect their
populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.
Videos

 Without words
 https://www.youtube.com/watch?v=-hwUbEuyV6U 
 ICC 3 mins

https://www.youtube.com/watch?v=Jw_cQrGwMJo&fea
ture=youtu.be
ICC – full video
https://www.youtube.com/watch?v=zGzDOo7PDRU
 
History & Establishment of the
International Criminal Court
 Post-World War II
– The Nuremberg Tribunal
 Composed of four principal judges (from the US, UK, USSR
and France) and four alternates, was the first international
criminal tribunal and marks the true starting-point for
international criminal law.
 imposes duties and liabilities upon individuals as well as upon
states as crimes against international law are committed by
men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international law
be enforced.
 Crimes against peace, war crimes and crimes against
humanity.
 the General Assembly in 1946 affirmed the principles of this
charter and the decision of the tribunal and also stated that
genocide was a crime under international law bearing
individual responsibility
History & Establishment of the
International Criminal Court

– The International Military Tribunal for the Far East

 Composed of judges from eleven states, and was reaffirmed
by Nuremberg Tribunal
 Deals with Japanese war crimes
History & Establishment of the
International Criminal Court

 1949 Geneva Red Cross Conventions and 1977

Additional Protocols I and II
– Legislation necessary to provide effective penal sanctions
for persons committing or ordering to be committed any of a
series of grave breaches (wilful killing, torture, or inhuman
treatment, extensive destruction and appropriation of
property not justified by military necessity and carried out
unlawfully, unlawful deportation or transfer of protected
persons and taking the hostages.
History & Establishment of the
International Criminal Court

 Protocol I of 1997
– Extended the list and included, making the civilian
population the object of attack and launching an
attack against works or installations containing
dangerous forces in the knowledge that such
attack will cause excessive loss of life or damage
to civilians or their properties.
– Apartheid and racial discrimination, attacking
recognized historic monuments, works of arts or
places of worship are also grave breaches
History & Establishment of the
International Criminal Court

 The Emergence of the International Criminal Court

– Yugoslav experience, and the Rwanda massacres of 1994
led to the establishment of two specific war crimes tribunals
by the UN.
– The UN binded all member states of the organization under
Chapter VII of the Charter, rather than holding an
international conference, to make the operation quicker and
to ensure that the parties most closely associated with the
subject-matter of war crimes alleged should be bound in a
manner not dependent upon their consent.
History & Establishment of the
International Criminal Court

 International Criminal Tribunal for the former

Yugoslavia (ICTY)
– Under resolution 780 (1992), the Security Council
established an impartial Commission of Experts to
examine and analyze information concerning evidence
of grave breaches of the Geneva Conventions and
other violations of international humanitarian law
committed in the territory of the former Yugoslavia.
– The Security Council then adopted resolution 808
(1993) calling for the establishment of an international
tribunal to prosecute ‘persons responsible for serious
violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991’.
History & Establishment of the
International Criminal Court

– The ICTY consists of three main organs, the Registry

(administrative body), Office of the Prosecutor (responsible
for investigations, issuing of indictments and bringing
matters to trial) and the Trial Chambers (there are currently
three Trial Chambers, each consisting of a presiding judge
and two other judges, and an Appeals Chamber, consisting
of seven members but sitting in a panel of five, headed by a
President) The Chambers have a maximum of sixteen
permanent judges and a maximum of twelve ad litem
judges drawn from a pool of twenty-seven such judges
elected by the General Assembly for four-year renewable
terms.
History & Establishment of the
International Criminal Court

 International Criminal Tribunal for Rwanda (ICTR)

– The Statute of this Tribunal was annexed to the body of
the Security Council resolution and bears many
similarities to the Statute of the Yugoslav Tribunal.
– consists of three Trial Chambers, an Office of the
Prosecutor and a Registry with the same functions as
those of the Yugoslav Tribunal.
– Article 2 deals with genocide; article 3 with crimes
against humanity, being the crimes of (a) murder; (b)
extermination; (c) enslavement; (d) deportation; (e)
imprisonment; (f) torture; (g) rape; (h) persecutions on
political, racial and religious grounds; and (i) other
inhumane acts
III. International Criminal Court
 Article VI of the Genocide Convention, 1948 provided for
persons charged with genocide to be tried either by a court in
the territory where the act had been committed or by an
‘international penal tribunal’ to be established. The International
Law Commission was asked to study the possibility of the
establishment of such an international court
 Yugoslav situation in the early 1990s, the International Law
Commission adopted a Draft Statute for an International
Criminal Court in 1994. This draft statuted proposed that an
international criminal court be established with jurisdiction not
only over genocide, war crimes, crimes against humanity and
aggression, but also over certain ‘treaty crimes’ such as
terrorism and drugs offenses found in UN conventions.
International Criminal Court
 Rome Conference in 1998, which produced after some effort
the Rome Statute on the International Criminal Court on July
17, 1998. Sixty states were needed to ratify the Rome Statute
in order for it to come into force and this duly happened on 1
July 2002.
 The ICC is the product not of a binding Security Council
resolution, but of an international treaty.
 The range and content of the Rome Statute is far greater than
those of the two international criminal tribunals. The Rome
Statute contains 128 articles, while the ICTY Statute contains
34 articles and the ICTR Statute 32 articles
International Criminal Court
 Jurisdictions
– Article 5 of the Rome Statute of the International;
Criminal Court
– The International Criminal Court will have
jurisdictions over crimes that affect the
international community as a whole.
– Jurisdiction over the following crimes:
 Genocide
 Crimes Against Humanity
 War Crimes
 Crimes of Aggression*
International Criminal Court
 Jurisdiction Ratione Temporis
– Only has jurisdiction with respect to crimes committed after
the statute came into force.
– July 1, 2002 The Rome Statute entered into force after the
ratification by 60 countries
 121 State Parties
– 33 African States
– 18 Asia-Pacific States
– 18 Eastern Europe
– 27 Latin American and Caribbean States
– 25 Western European and other States
International Criminal Court

 The state wherein the conduct/crime in

question occurred or the state wherein the
accused is a national of and that state is a
party of the Statute.
International Criminal Court

 A situation has been referred to the

prosecutor by the Security Council acting
under Chapter VII of the Charter
– Action with respect to threats to the peace,
breaches of the peace, and acts of aggression
International Criminal Court

 Organs of the Court

– 1. Presidency
– 2. Judicial
– 3. Office of the Prosecutor
– 4. The Registry
International Criminal Court

 The Presidency
– Responsible for the administration of the court
– President and 1st & 2nd Vice-Presidents are
elected through majority vote by the judges
– Three year term
International Criminal Court
 Current line-up
– President
– 1st Vice-President
– 2nd Vice-President
International Criminal Court
 Judicial Divisions
– Composed of 18 judges
International Criminal Court

 Judicial is composed of 3 divisions

– Appeals Division
– Trial Divison
– Pre-Trial Division
International Criminal Court
 Appeals Division (5 judges)
– Decides to whether, amend or reverse the decision made
on a case.
– A Prosecutor or the convicted person can appeal against
the decisions of the pre trial and trial chambers on the the
following grounds:
 Procedural Error
 Error of Fact
 Error of Law
 Other grounds that affect the fairness or reliability of the
proceedings or decisions
International Criminal Court
 Trial Division (6 judges)
– Ensures that the trial is fair and expeditious, as well as
conducting full respect to the accused, victims and
witnesses.
– Determines the innocence or guilt of the accused
– Accused may be imprisoned only for a maximum of thirty
years or a term of life time imprisonment may be imposed.
– Financial penalties may be imposed

 Trial must be held in public unless special circumstances

require that certain proceedings be in closed session to protect
confidential or sensitive information to be given in evidence, or
to protect victims and witnesses
International Criminal Court

 Pre-Trial Division (6 judges)

– Case analysis before investigation
– Authorizes the investigation if there’s a
reasonable basis. If not, the Prosecutor may
decide not to pursue or present a new request
based on new facts or evidence.
– Upon the application of the Prosecutor for a
warrant of arrest, the Pre-Trial chamber shall
issue one given the satisfaction of the grounds.
International Criminal Court
 Must ensure that the prosecuted will not be detained
for an unreasonable period.
 Process:
– Surrender or voluntary appearance of a person.
– Pre trial chamber holds a hearing in the presence of the
prosecutor.
– Person charged and his/her counsel confirms/rejects the
charges.
– Confirms charges and commits the person for trial
– Presidency will establish a Trial Chamber to conduct
subsequent proceedings.
International Criminal Court
 Office of the Prosecutor
– Current Prosecutor
– Acts independently as a separate organ of the court
– Responsible for receiving referrals and any
substantiated information on crimes within the
jurisdiction of the court, for examination and for
conducting investigations and prosecutions before the
court
– A member of the Office shall not seek or act on
instructions from any external source.
– Elected by secret ballot by members of the assembly
of state parties
– Nine year term
International Criminal Court

 Office of the Prosecutor

– Assisted by one or more deputy prosecutors
– Current Prosecutor
International Criminal Court

 Registry
– Current Registrar
 5-year term
 Responsible for the non-judicial aspects of
the administration and servicing of the court
International Criminal Court

 International Crimes
– Genocide
– War Crimes
– Crimes Against Humanity
– Aggression
 International Criminal Court
 Genocide
 Article 6 of the Rome Statute of the International
Court
– Any act with an intent of destroying, either a part or
a whole national, ethnical, racial or religious group.
 War Crimes
– Article 8 of the Rome Statute of the International Court
 Grave breaches of the Geneva Conventions of 12 August
1949, namely, any of the following acts against persons or
property protected under the provisions of the relevant Geneva
Convention:
– Wilfully causing great suffering, or serious injury to body or
health;
– Extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly;
– Compelling a prisoner of war or other protected person to serve
in the forces of a hostile Power
– Taking of hostages
 Aggression (Article 5.2 of the RSICC)
– The Court shall exercise jurisdiction over the
crime of aggression once a provision is adopted
in accordance with articles 121 and 123 defining
the crime and setting out the conditions under
which the Court shall exercise jurisdiction with
respect to this crime. Such a provision shall be
consistent with the relevant provisions of the
Charter of the United Nations.
 Crimes Against Humanity
– Article 7 of the Rome Statute of the International Court
– Acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the
attack
– Some forms of these are:
 Murder;
 Extermination;
 Enslavement;
 Deportation or forcible transfer of population;
 Imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law;
 Torture;
 Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity;
 Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender.
INTERPOL

 ICPO – Interpol
 ICPO – International Criminal Police
Organization
 OIPC – Organisation Internationale de Police
Criminelle (French)
 Interpol – International Police
INTERPOL
 Intergovernmental organization facilitating
international police cooperation
 Functions as an administrative liaison
between law – enforcement agencies of the
member countries, providing communications
and database assistance
 Consists of 190 member countries
 Located in Lyon, France
 In the event of an international disaster, terrorist attack or
assassination, Interpol can send an incident response team

 Offers a range of expertise and database access to assist with

victim identification, suspect identification and the
dissemination of information to other nations law enforcement
agencies

 At the request of local authorities, Interpol can act as a central

command and logistics operation to coordinate other law
enforcement agencies involved in a case
Restriction

 Article 3 of the Constitution of the Interpol

– It is strictly forbidden for the organization to
undertake any intervention or activities of a
political, military, religious or racial character
History

 1914
– First International Criminal Police Congress held
in Monaco. Police officers, lawyers and
magistrates from 14 countries meet to discuss
arrest procedures, identification techniques,
centralized international criminal records and
extradition proceedings.
History

 1923
– Creation of the International Criminal Police
Commission (ICPC) with headquarters in Vienna,
Austria, on the initiative of Dr Johannes Schober,
president of the Vienna Police.
History

 1938
– The Nazis assume control after deposing of
President Michael Skubl. Most countries stop
participating and ICPC effectively ceases to exist
as an international organization.
History

 1942
– ICPC falls completely under German control and
is relocated to Berlin.
History

 1946
– Belgium leads the rebuilding of the organization
after the end of World War II. A new headquarters
set up in Paris, and ‘INTERPOL’ chosen as the
organization’s telegraphic address. Democratic
process to elect the President and Executive
Committee instituted.
History

 1949
– The United Nations grants INTERPOL
consultative status as a non-governmental
organization.
History

 1956
– Following the adoption of a modernized
constitution, the ICPC becomes the International
Criminal Police Organization-INTERPOL,
abbreviated to ICPO–INTERPOL or just
INTERPOL. The Organization becomes
autonomous by collecting dues from member
countries and relying on investments as the main
means of support.
History

 1971
– The United Nations recognizes INTERPOL as an
intergovernmental organization.
 1989
– INTERPOL moves its General Secretariat to
Lyon, France.
Extradition
 The transfer of an accused from one state or country
to another state or country that seeks to place the
accused on trial.
 Extradition comes into play when a person charged
with a crime under state statutes flees the state
 Extradition is regulated by treaties
 The purpose of extradition is to prevent nations from
becoming safe havens for fugitives and criminals
from other nations
Extradition

 Dual Criminality
– Extradition law
– A suspect can be extradited from one country to
stand trial for breaking a second country’s law
ONLY when similar law exists in the extraditing
country
Extradition
 Limits
Not all nations will extradite their citizens to another country for prosecution (France,
Israel)

– Countries may refuse to extradite if there is a chance of Death Penalty to be

imposed

– Many countries will not extradite if there is a risk that a requested person will be
subjected to torture, inhuman or degrading treatment or punishment

– Most countries will not extradite if the offense is considered a political crime or for
other reasons stipulated in the extradition treaty, such as military offenses like
desertion

– Many treaties contain provisions that prevent extradition if the person has already
been tried and either convicted or acquitted of the crime