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International Criminal Law

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Philipp Kastner

on 4 October 2015

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Transcript of International Criminal Law

International Criminal Law
slave trade
“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.”
International Military Tribunal, Nuremberg, 1946
- Recall: state jurisdiction and immunities

- "transnational" crimes (e.g. torture, enforced disappearances)
Convention on the Prevention and Punishment of the Crime of Genocide
(1948), art 2

In the present Convention, genocide means any of the following acts committed
with intent
to destroy, in whole or in part, a national, ethnical, racial or religious
, 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

crimes against humanity
Rome Statute
(1998), art 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
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
serious violations of international humanitarian law, such as

- grave breaches of the 1949 Geneva Conventions (Rome Statute, art 8(2)(a)

- violations of common article 3 to the 1949 Geneva Conventions

(i) Wilful 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;
any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
Charter of the International Military Tribunal (Nuremberg):
“planning, preparation, initiating or waging of war of aggression…”
Rome Statute, art 8
“'crime of aggression' means the planning, preparation, initiation or execution, by a person i
n 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."
After WWI: attempt to prosecute the German Kaiser
International Military Tribunals
after WWII
Nuremberg and Tokyo (1945)
Ad hoc

- International Criminal Tribunal for the Former Yugoslavia (1993)

- International Criminal Tribunal for Rwanda (1994)
primacy over national courts
Hybrid / internationalised tribunals

- Special Court for Sierra Leone (2002-2013)

- Extraordinary Chambers in the Courts of
Cambodia (2006)

- Special Tribunal for Lebanon (2009)

- etc.
International Criminal Court
123 states parties to the Rome Statute
Jurisdiction: generally based on territoriality and nationality principles (art 12)
3 trigger mechanisms (art 13)
amnesties / truth and reconciliation commissions (TRCs)
duty to prosecute?
different institutions - different objectives!
Raphael Lemkin
Opening Statement by the Prosecutor, David M. Crane (Case No. SCSL—2004-15-PT)

As part of this campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped, many of them were abducted and used as sex slaves and in forced marriage arrangements. Men and boys who were abducted were also used as forced labor; some of them held captive for years. Many abducted boys and girls were given combat training and used in active fighting. AFRC/RUF also physically mutilated men, women, and children, including amputation of hands, feet, breasts, buttocks, lips, ears, noses, genitalia, and carving AFRC or RUF on their bodies.

A witness will testify that while hiding in the Malama bush near Batmis she could hear the rebels in Batmis shout out threats to those in hiding. As it became light the witness was captured by a rebel. He hit her, pushed her down on the ground and raped her while another rebel looked on. Afterwards, other rebels armed with guns, knives and cutlasses rounded up the witness, her husband and other Sierra Leoneans. They were taken into Batmis where the witness was forced to pound fundeh (which is millet). Other civilians were forced to carry water. Some managed to escape. Those who remained were punished. The rebel commander ordered the witness’s husband to be killed. The witness will testify she watched while her husband was hacked to death with a cutlass. The rebels then took hold of her right hand and with 4 long strokes of a machete cut it off. Then they chopped off her left hand telling her to go to Kabbah, who would give her hands.
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Principle of complementarity (art 17)

"unwilling or unable"
Questions of transitional justice
role and impact of international criminal justice?
United Nations Mechanism for International Criminal Tribunals (2012)
continue essential functions of the ICTs
maintain the legacy of the ICTs
Full transcript