martedì 24 febbraio 2015

From Nuremberg to The Hague: an overview of the evolution of punishment of international crimes

Before the end of World War 2, the international community contemplated only two kinds of international crimes: piracy and war crimes. Regarding piracy, according to custom, all States were entitled to punish the crew of a pirate ship, and this included the faculty to chase and capture the ship in all waters, whether international or domestic through mutual solidarity. With regard to war crimes, the punishment for war criminals was limited to belligerent States, and had to cease as soon as the hostilities would end; some sporadic Conventions attempted to codify the main war crimes in international law (e.g. the Hague Conventions of 1899 and 1907; the Geneva Conventions of 1864, 1906 and 1929). 
The Nuremberg Tribunal 
However, the atrocities committed by the Axis powers during World War 2 convinced the Allies that the Nazi and Japanese military and political elite responsible for the outbreak of the conflict and for mass killings and appalling atrocities deserved an exemplary punishment. Therefore, they established two main special tribunals, one for the Germans and one for the Japanese. The former is the famous Nuremberg Tribunal, created with the London’s Agreement of 1945, and the latter the so-called International Military Tribunal for the Far East (IMTFE), better known as Tokyo Tribunal. Through the creation of these two military tribunals, the international community had already identified the major individual international crimes, which would have reappeared, as we will see, in the Statute of the International Criminal Court.
Later, from Nuremberg onwards, the international community has attempted to punish international crimes through the institutionalization of international tribunals. The most famous after the end of World War 2 are three. The first is the International Criminal Tribunal for the former Yugoslavia (ICTY), established in 1991, a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators: it is an ad hoc court located in The Hague. The second is the International Criminal Tribunal for Rwanda (ICTR), established in November 1994 by the United Nations Security Council in order to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between the 1st of January and the 31st of December 1994. The last is the International Criminal Court (ICC), an intergovernmental organization and international tribunal that sits in The Hague, established with the Statue of Rome of 1998.
Sniper area in Bosnia during the 1992-95 war
The ICC’s Statute reformulated the main international crimes, as anticipated at Nuremberg, by listing three and foreseeing a fourth:

-Genocide (art 6): it is the total or partial annihilation of a national, ethnic, racial or religious group;

-Crimes against humanity (art 7): they include the following deeds when committed methodically and on a large scale: a) murder; b) enslavement; c) deportation or forced transfer of peoples; d) deprivation of freedom; e) torture; f) rape; g) forced prostitution; h) political, racial, religious and sexual persecutions that can provoke great pain.  

-War crimes (art 8): they are specific deeds committed in wartime like: a) violations of the norms of the 1949 Geneva Convention on humanitarian war law; b) forced recruitment of war prisoners; c) kidnapping hostages; d) intentional attacks on civilian targets. 

-Crimes against peace (art 5): it represents the crime of aggression. In a compromise reached during the negotiation of the Rome Statute in 1998, Article 5 of the Rome Statute lists the crime of aggression as one of the core crimes under the Court’s jurisdiction. However, in contrast to the other abovementioned three crimes, the Court remained unable to exercise jurisdiction over the crime of aggression as the Statute did not define the crime or set out jurisdictional conditions. However, in 2010, the Review Conference of the Statute of Rome held in Kampala (Uganda) adopted by consensus amendments to the Statute which include a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime. According to Kampala’s amendments, the definition of crime of aggression is the planning, grounding, beginning and developing of an act of aggression by a person that holds political and military power, in manifest violation of the United Nations Charter.     

All crimes listed in the ICC’s Statute are imprescriptible. It is relevant to highlight that the norms disciplining punishments of international crimes address directly to individuals.
The ICC building in The Hague
As noted, the International Criminal Court was established in 1998, and by 2002, more than 100 States had already ratified its founding Statute. Unlike the UN international criminal tribunals, the ICC is a permanent body authorized to try individuals that are responsible for committing grave crimes whilst covering a military or governmental official and public role. It is independent from the United Nations, and has a judicial staff of eighteen judges in office for nine years that belong to the member States. It has complementary jurisdiction with the judicial organs of the member State: this means that the ICC has jurisdiction over a case only if the most involved State in the case does not want or cannot conduct investigations or celebrate the trial. Notwithstanding, there is an exception to this rule: there cannot be an ICC jurisdiction if the alleged culpable has already been convicted or acquitted by the member State (i.e. principle of ne bis in idem). Moreover, there cannot be jurisdiction for citizens that belong to States that are not member parts of the Statute of Rome. Nor can there be jurisdiction over situations that occur across the land of a non-member State, unless it is consentient (i.e. principle of ineffectiveness of treaties in Third States). On the other hand, the jurisdiction is automatic if a State is a member part of the Statute, for crimes contemplated within it. The budget of the court is offered by the member States and also taken by the ordinary UN budget.  The UN international criminal tribunals, conceived as tools to punish the perpetrators of severe crimes against humanity, like those for former Yugoslavia and Rwanda, are funded both by the UN member States and by the operational budget of a UN peacekeeping operation. At the request of the court, the States that hold the alleged criminal must deliver him to the court and other internal judicial bodies must waive their jurisdiction over the case. The power of initiative to start a trial belongs either to a member State or to the Prosecutor.
Machetes used in the Rwandan Genocide of  1994
Alongside with these kinds of courts, other judicial bodies exist known as Hybrid (or Mixed) International Criminal Tribunals. These apply a mixed law, both international and domestic, and are formed by mixed personnel, that is local and foreigner. Examples of them are the International Criminal Tribunals of Kosovo, East Timor, Cambodia, Sierra Leone, and Lebanon. The courts use local personnel in order to better approach the local population. The reason for their establishment is also to back up the UN tribunals, which are often insufficient for dealing with all procedures, if not incapable. It is mandatory that the local government will cooperate actively with the courts. Thanks to the knowledge of the national law and of the indigenous customs, it is easier to find witnesses and legal evidence. Indeed, amongst international jurisdictions the Hybrid Tribunals are the most flexible, although it is often difficult to fund them. Usually, they are instituted in the location where the crime took place. Al of them are not permanent, but rather temporary, and cease to exist when they finish their work. One of their utility is to fill the gaps of the ICC and to side it when too busy in coping with other international cases.               
Often, the individual that commits an international crime is an organ of his own State; this implies the rise of two kinds of responsibilities:

-International responsibility of the State.

-International responsibility of the individual/organ of the State.

According to the principle of territoriality, a State can bring to trial an alleged criminal only if he is responsible for committing crimes within its sovereign territory. On the other hand, the principle of universal jurisdiction affirms that an individual may be brought to trial in other States if the alleged foreign criminal finds himself in the territory of the State when he must be trialed and only if his national State or another closely involved State do not wish to prosecute him for themselves. In terms of international immunities, the international criminal jurisdiction cannot take place in the case of Chiefs of State, Chiefs of Government, Ministers and Diplomats until they are exercising their official duties. In any case, the punishment of international crimes cannot derogate from the safeguard of fundamental human rights.


A. Cassese, International Law, USA, Oxford University Press, 2001.     

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