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).
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| 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.
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| 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.
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| 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.
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| 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.
References:
A. Cassese, International
Law, USA, Oxford University Press, 2001.
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