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A A Beginners Guide to International Criminal Law

Analysis

to International Criminal Law


Christopher Gevers

What is international criminal law?

The term international criminal law is used to describe the body of norms that govern the prosecution
of international crimes by both domestic and international courts. Today, international criminal law
is one of the most highly developed fields of international law and a key feature of both international
and domestic politics. Its rise to prominence is testament to the global communitys commitment
to combating impunity for the most serious human rights violations and atrocities.

What are international crimes?

The three core international


crimes are war crimes, crimes
against humanity and genocide.

War crimes are serious Crimes against humanity Similarly, the crime of
violations of international hu- were initially introduced to genocide involves the
manitarian law that take place cover atrocities committed commission of certain
during armed conflicts. They against the civilian inhumane acts, namely:
include (amongst others): the population in times of killing, causing serious bodily
unlawful targeting of civilians armed conflict. Today, they or mental harm, deliberately
and those wounded during include certain inhumane inflicting conditions of life
the course of hostilities; the acts committed as part of calculated to bring about
Christopher Gevers teaches severe mistreatment of both a widespread or systematic the destruction of a group,
international law and human
soldiers and civilians (torture, attack against a civilian measures intended to prevent
rights at the University of
etc.); the use of prohibited population, whether in a birth, and forcibly transferring
KwaZulu-Natal, South Africa.
He studied at the University methods of warfare such as time of peace or armed children from one group to
of KwaZulu-Natal and the the excessive use of force, conflict. These inhumane another. However, in order to
London School of Economics the use of human shields and acts include murder, torture, qualify as genocide, these acts
and Political Science and hostage-taking; and the use of sexual violence, deportation, must be committed with the
has previously worked for prohibited means of warfare enslavement and intention to destroy a national,
Amnesty International and the (such as weapons that cause enforced disappearances, religious, ethnic or racial
International Crisis Group. unnecessary suffering). amongst others. group in whole or in part.

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These three core international crimes are How is international criminal
currently prosecuted by the International law enforced?
Criminal Court (ICC) as well as numerous
domestic courts where the states
have adopted legislation providing for
such prosecutions.

International criminal law is enforced by the hybrid tribunals that emerged in the
both domestic and international courts. late 1990s, such as the Special Court for
The first international prosecution of Sierra Leone, the Extraordinary Chambers
these crimes took place after World War in the Courts of Cambodia and the Special
II, when the International Military Tribunal Tribunal for Lebanon. These courts are
at Nuremburg was established by the Allied neither purely domestic nor international
powers (Britain, France, the United States rather their founding documents,
and Russia) in 1945 to try the major war jurisdiction, composition and funding are
criminals of the European Axis for viola- a mixture of the two.
tions of the laws of war, crimes against the The enforcement of international
peace and crimes against humanity.1 The criminal law by international courts is usually
Nuremberg trial had a profound effect on given more media and scholarly attention
the development of international criminal than the domestic prosecutions of these
Subject to the entry into force of an law. In fact, many people believe it repre- crimes. As a result, many see international
amendment to its founding statute, the sents the birth certificate2 of the discipline. criminal justice as justice delivered by
ICC will also be able to prosecute the crime It was followed in 1946 by the International international courts. 4 However, this
of aggression as of 2017. According to that Military Tribunal at Tokyo, set up for the underestimates the importance of domestic
amendment, an act of aggression is defined just and prompt trial and punishment of prosecutions in both the development of
as the use of armed force by one state the major war criminals in the Far East. 3 the field and its enforcement. The fact is
against another state such as launching The unanimity that existed in the that for much of the 20th century in the
an invasion or attack, blockading ports, aftermath of World War II dissipated as absence of an international enforcement
or sending armed groups or mercenaries the Cold War set in. As a result, the next mechanism for international crimes
which, by its character, gravity and international courts were only established international criminal law was primarily
scale, constitutes a manifest violation nearly half a century later when the United the concern of domestic courts. The four
of the Charter of the United Nations. Nations Security Council created two ad 1949 Geneva Conventions, for example,
The individuals who are responsible for hoc tribunals to prosecute international contain a provision setting out an obligation
the planning, preparation, initiation or crimes committed in the former Yugoslavia on states, through their domestic courts,
execution of acts of aggression will be guilty (the ICTY) and during the 1994 Rwandan to either prosecute individuals alleged to
of the crime of aggression. genocide (the ICTR). These ad hoc tribunals have committed or ordered the commission
In addition, there is support for were established by the Security Council of grave breaches of the Conventions (i.e.
expanding the list of international crimes acting under Chapter VII of the UN war crimes) or extradite such persons to
to include torture, terrorism and grand Charter, which tasks the Council with the another state willing to do so. 5 Similarly,
corruption. However, while the four maintenance of international peace and the 1948 Genocide Convention contains a
abovementioned crimes are undoubtedly security. Then, in 1998, states adopted the provision stating that individuals charged
crimes under customary international Rome Statute of the International Criminal with committing genocide shall be tried
law, and therefore universally outlawed, Court (ICC), which established the first by a competent tribunal of the State in the
there remains some doubt about the permanent international court for the territory of which the act was committed
customary character of other putative prosecution of international crimes. or by an international court such as the ICC.
international crimes. Brief mention must also be made of Even with the resurgence of international

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A Beginners Guide to International Criminal Law

prosecutions, and the establishment of a What is the International


permanent international court (the ICC), Criminal Court?
domestic prosecutions remain essential to
the enforcement of international criminal
law. In fact, under the ICCs principle of
complementarity, domestic courts remain
the preferred forum for delivering justice
for international crimes.
In order to facilitate these national
prosecutions, international law has evolved
to allow states to exercise universal
jurisdiction over individuals accused
of international crimes. Traditionally,
the ability of the states to prosecute
and punish crimes (i.e. exercise criminal
jurisdiction) was limited to crimes that take
place within their borders. The exercise
of criminal jurisdiction by a state over The ICC is the culmination of efforts that against humanity and war crimes. A state
events that take place outside its borders began well over a century ago in 1872 when that becomes party to the Rome Statute
was limited to circumstances where there Gustave Moynier (one of the founders of authorises the ICC to exercise jurisdiction
was some other link between the state and the International Committee of the Red over these crimes when they are committed
the crime in question: such as when the Cross) proposed the establishment of an by their nationals or on their territory. The
accused or the victim of the crime was a international tribunal to punish violations ICCs jurisdiction can then be triggered
citizen of that state. However, under the of the Geneva Convention of 1864.7 either by that state or by another state
principle of universal jurisdiction, states Following the atrocities committed during that is party to the Rome Statute, or by
can exercise criminal jurisdiction based World War II, and the successful trials at the Prosecutor acting on his own initiative
solely on the nature of the crime, without Nuremburg and Tokyo, the UN General (with the authorisation of the ICC Judges).
regard to where the crime was committed, Assembly passed a resolution calling on For example, having ratified the Rome
the nationality of the alleged or convicted the International Law Commission (ILC) Statute in June 2002, Uganda referred
perpetrator, the nationality of the victim, or to study the desirability and possibility the situation in the north of the country to
any other connection to the state exercising of establishing an international judicial the Court in December 2003. Meanwhile,
such jurisdiction.6 organ for the trial of persons charged with the Democratic Republic of Congo (DRC)
While the exercise of universal genocide or other crimes.8 became a party to the Rome Statute in April
jurisdiction remains contested by some, However, the Commissions work stalled 2002 and two years later the government
a growing number of states accept it in 1954 and was only formally revived in triggered the exercise of jurisdiction over
as a basis for exercising jurisdiction, at 1989, when the UN General Assembly once its territory by asking the Prosecutor to
least in principle, over war crimes, crimes again asked the Commission to address the investigate crimes within the jurisdiction
against humanity and genocide. Since issue. As a result, in 1994 the ILC completed of the ICC allegedly committed in the DRC
the entry into force of the Rome Statute a draft of what would become the Rome since the entry into force of the Statute. The
in 2002, a number of states (including Statute. This led the General Assembly to first case to be triggered by the Prosecutor
South Africa) have adopted implementing convene the UN Diplomatic Conference of on his own accord related to the 2008 post-
legislation providing for the exercise of Plenipotentiaries on the Establishment of election violence in Kenya.
universal jurisdiction provisions over a Permanent International Criminal Court There are two additional ways that
international crimes by their domestic in Rome from 15 June to 17 July 1998 to the ICC can exercise jurisdiction when
courts. Furthermore, the existence of such negotiate and agree the final text of a treaty the state concerned is not a party to the
jurisdiction is supported by the Preamble establishing a permanent international Rome Statute.
to the Rome Statute which: [a]ffirms that court. At the end of this marathon meeting, Firstly, a state that is not party to the
the most serious crimes of concern to the 120 states adopted the Rome Statute of the Rome Statute can lodge a declaration
international community as a whole must International Criminal Court.9 Senegal was with the Court accepting its exercise of
not go unpunished and that their effective the first state to ratify the Rome Statute, jurisdiction over a particular situation.
prosecution must be ensured by taking which entered into force on 1 July 2002. This happened in the case of Ivory Coast,
measures at the national level and by Under the Rome Statute, the ICC is which lodged a declaration with the ICC in
enhancing international cooperation.... tasked with prosecuting genocide, crimes April 2003 accepting the Courts exercise

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The principle ensures that the unwilling or unable to prosecute the
offender domestically. This principle

ICC reinforces the criminal justice reflected within Articles 1 and 17, as well
as the Preamble to the Rome Statute is
systems of states at a national level, a novel idea. Effectively, it affords states
primary jurisdiction over international
as well as the broader system of crimes committed within their jurisdiction.
The principle ensures that the ICC
international criminal justice. reinforces the criminal justice systems of
states at a national level, as well as the
broader system of international criminal
justice. The principle proceeds from the
belief that national courts should be the first
of jurisdiction over acts committed on its of a political compromise between the to act. Aside from assuaging the concerns of
territory since September 2002. Notably, states that negotiated the Courts founding states over the potential usurpation of their
the Palestinian Authority has attempted treaty in Rome in 1998, which had divergent national sovereignty, the principle carries
to lodge a similar declaration in respect interests and very different views on the with it other important consequences,
of the crimes committed in Gaza, but the legitimacy of the Security Council and its such as recognition of: the need for full
Prosecutor is yet to rule on whether it can role in maintaining international peace participation by victims; the practicality
be considered a state for these purposes. and security. One might add that the role of local prosecutions; and, the practical
The second is when the UN Security the Council plays under the final Statute is limitations of a court with potentially
Council refers a situation to the ICC for significantly diminished, not least because universal jurisdiction.
investigation and possible prosecution, of the efforts of African states in Rome. In order to give effect to the principle
acting under Chapter VII of the UN Nevertheless, the fact that the Council plays of complementarity, a number of states
Charter. The Council has done so on two any role in the Courts functioning remains have amended their laws to allow for the
occasions: the first was in March 2005 a central concern for African states, which prosecution of core international crimes
when the Council passed Resolution 1593 has been exacerbated by the fact that the within domestic courts. From an African
referring the situation in Darfur (Sudan) to Council has so far only used this power to perspective, South Africa, Kenya, Uganda,
the ICC, while the second was in February refer African States to the ICC. Burkina Faso and Senegal have all done
2011 when the Council passed Resolution Crucially, just because the ICC has so either through specialised Acts of
1970 referring the situation in Libya to jurisdiction over an international crime Parliament or through amendments to their
the ICC. The role given to the Security does not automatically mean that it will criminal codes. A number of other countries
Council to refer matters to the ICC and prosecute the individuals concerned. This are also in the process of doing so.
defer proceedings for a period of one year is because at the heart of the Rome Statute
is extremely controversial, particularly is the principle of complementarity, in
among African states that see the Council terms of which the ICC will only prosecute
as unrepresentative. This role is the result an individual if the state concerned is

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Endnotes

1. Article 1, International Military Tribunal (1945)


2. Werle, Principles of international criminal law, 6
3. Article 1, International Military Tribunal for the Far East Charter (1946)
4. Jessberger, International v. National Prosecutions of International Crimes, in A Cassese (ed), The Oxford companion to international
criminal justice, Oxford: Oxford University Press, 2009, 208
5. Article 49 Geneva Convention I; article 50 Geneva Convention II; Article 129 Geneva Convention III; and article 14
6. Geneva Convention IV6 Principle 1 (1), The Princeton Principles on Universal Jurisdiction (2001)
7. G Moynier, Note sur la cration dune institution judiciaire internationale propre prvenir et rprimer les infractions la Convention de
Genve, Bulletin international des Socits de secours aux militaires blesss, Comit international 11 (1872), 122
8. General Assembly Resolution 260 B. (III) (9 December 1948)
9. Seven voted against the final text, with 21 abstentions

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