Enforcement of international law

1. LWN158: Public
International Law
Seminar 10: Enforcement of international law
(International Criminal Law)

2. Introduction: What is
International Criminal Law?
• Triggs describes ‘international crime’ as: ‘one that is a matter
for international law as well as national concern, attracting the
responsibility of individuals and states, and is subject to
prosecution by international and national tribunals.’
• Close relationship with human rights law and humanitarian
law – criminalises acts which are violations of these bodies of
law
• Counterpoint to human rights law, which bestows rights on
individuals – I Crim J imposes responsibility directly on
individuals for violations of international law.

3. Something to think about:
• What is the purpose of international criminal law?
• To achieve retributive justice?
• To act as a deterrent?
• To achieve peace and reconciliation?

4. Evolutionof internationalcriminallaw:
NurembergTrials
• February 1945: Franklin D. Roosevelt, Winston Churchill &
Joseph Stalin agreed that Axis leaders should be prosecuted at
the end of WWII
• 7 May, 1945: Unconditional surrender of Germany.
• 8 August 1945: London Charter of the International Military
Tribunal – established the IMT and enabled the prosecution of
war criminals.
• November 1945: first trials were held at Nuremberg.
• Resulted in 11 death sentences for Nazi commanders.

5. Prosecutor Justice Robert Jackson
• “The privilege of opening the first trial in history for crimes
against the peace of the world imposes a grave responsibility.
The wrongs which we seek to condemn and punish have been
so calculated, so malignant, and so devastating, that
civilization cannot tolerate their being ignored, because it
cannot survive their being repeated. That four great nations,
flushed with victory and stung with injury stay the hand of
vengeance and voluntarily submit their captive enemies to the
judgment of the law is one of the most significant tributes that
Power has ever paid to Reason.”
• opening statement:
http://www.youtube.com/watch?v=L50OZSeDXeA

6. London Charter
• Established the Nuremberg tribunal and the offences over
which it would have jurisdiction
• Art 6: Crimes under the jurisdiction tribunals for which there
shall be individual responsibility:
• Crimes against peace (waging war of aggression)
• War crimes (violations of laws or customs of war)
• Crimes against humanity (murder, extermination, enslavement,
deportation, other inhumane acts committed against a civilian
population, or persecutions on political, racial or religions
grounds, whether or not in violation of the domestic law of the
country where perpetrated)

7. London Charter cont…
• Art 7: the official position of the defendants, whether as
Heads of State or officials in government departments, shall
not free them from responsibility or mitigate punishment.
• Art 8: the fact that the Defendant acted pursuant to an order
of his Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of
punishment if the Tribunal determines that justice so requires

8. Developments since WWII
• Nuremberg trials set foundation for international criminal law
in its modern form.
• Established the sorts of crimes which would attract international
criminal jurisdiction
• Established principle that official position would not excuse
wrongful conduct
• Established principle that no excuse would be available for a
person who was following orders of a superior
• Since WWII a number of other criminal tribunals have been
created to prosected offenders after episodes of conflict or
atrocity.

9. Ad hoc criminal tribunals
• Nuremberg tribunal was established to prosecute persons
who had committed egregious violations during WWII.
• A number of other tribunals have been created on an ad hoc
basis to prosecute offenders following particular conflicts
• International Criminal Tribunal for the Former Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda (ICTR)
• Special Court for Sierra Leone
• Special Panels of the Dili District Court
• Extraordinary Chambers in the Courts of Cambodia
• Special Tribunal for Lebanon

10. ICTY
• Created by the Security Council pursuant to Chapter VII (SC Res 827
(25 May 1993))
• Established ‘for the sole purpose of prosecuting persons responsible
for serious violations of international humanitarian law committed
in the territory of the former Yugoslavia’
• Statute of the ICTY (annexed to SC Res) establishes jurisdiction over
individual persons for acts committed from 1991 onwards:
• Grave breaches of the Geneva Conventions
• Violations of the laws or customs of war
• Genocide
• Crimes against humanity
• Initially was to complete all work by 2010 but has been extended
due to length of time taken to arrest all those indicted (last fugitive
arrested in 2008)
• Sits in the Hague, Netherlands

12. ICTR
• Also established by Security Council (SC Res 995 (8 Nov
1994)).
• Similar jurisdiction to ICTY but limited to acts committed in
the territory of Rwanda between 1 January and 31 December
1994 + acts committed by Rwandan citizens outside of
Rwanda.
• Some differences in definitions of crimes against humanity
and war crimes (ICTR limited to violations of common article 3
of Geneva Conventions)
• Sits in Arusha, Tanzania.

13. Individual criminal responsibility
• ICTY & ICTR have comparable provisions for establishing
individual criminal responsibility:
1. Person who planned, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution
of a crime referred to in Statute shall be individually
responsible.
2. Official position shall not relieve criminal responsibility or
mitigate punishment
3. Fact that acts were committed by subordinate doesn’t
relieve superior of criminal responsibility if they knew or
ought to have known.
4. The fact that accused was following orders doesn’t relieve
criminal responsibility, but may mitigate sentence if justice
requires.

14. International vs domestic
jurisdiction
• ICTY and ICTRY have concurrent jurisdiction with
domestic courts
• ICTY/R will take primacy where necessary in interests of
justice (ICTY art 9; ICTR art 8)
• Number of cases have been referred from international
tribunal back to domestic courts
• Also cases where tribunals have requested states to
defer to them and allow international prosecution to
proceed
• In the International Criminal Court jurisdiction is
determined through the principle of complementarity.

15. International Criminal Court
• Rome Statute of the International Criminal Court adopted 17
July 2008
• 1 July 2002 – entered into force upon ratification by 60 states
(currently 123 parties)
• Power to exercise jurisdiction over persons for the most
serious crimes of international concern (art 1)
• The crimes over which the ICC has jurisdiction are set out in
article 5:
a) The crime of genocide;
b) Crimes against humanity;
c) War crimes;
d) The crime of aggression (but note that jurisdiction over
aggression not yet active).

16. Jurisdiction of the ICC
• Art 11: ICC has jurisdiction over crimes which are committed
after entry into force of Rome Statute (1 July, 2002)
• Art 13: court may exercise jurisdiction where:
(a) State party refers situation to Office of the Prosecutor (OTP)
(see art 14)
(b) Security Council refers situation to OTP pursuant to Ch VII of
UN Charter
(c) OTP commences investigation itself (see art 15)
• Art 12: preconditions to jurisdiction – if 13(a) or (c) above -
either State where act occurred, or State of nationality of
offender, must be a party to the Statute. Not required for Sec
Council referral under art 13(b).

17. Principle of complementarity
Art 17: Inadmissibility
(1) A case will be inadmissible in the ICC where:
(a) The matter is already being investigated or
prosecuted by a State which has jurisdiction, unless
that State is unwilling or unable to genuinely carry
out investigation / prosecution
(b) The case has been investigated by a State who
decided not to prosecute, unless that decision was
based on unwillingness or inability to genuinely
prosecute
(c) Person has already been tried (Art 20)
(d) The case is not of sufficient gravity to warrant
prosecution by the Court.

18. Article 6: Genocide
For the purpose of this Statute, ‘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

19. Article 7 : Crimes against humanity
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;

20. Art 7 cont/...
h) Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender or other grounds that
are universally recognized as impermissible under international law,
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.
2. For the purpose of paragraph 1:
(a) ‘Attack directed against any civilian population’ means a course of
conduct involving the multiple commission of acts referred to in
paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack;

21. Article 8: War crimes
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) Wilful killing;
(ii) Torture or inhuman treatment, including biological
experiments;
(iii) Wilfully causing great suffering, or serious injury to body
or health;

22. Art 8 cont/...
(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; 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.
(b) Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts...
(c) In the case of an armed conflict not of an international character,
serious violations of article 3 common to the four Geneva
Conventions of 12 August 1949...

23. Art 25: Individual responsibility
• Art 25(3) Individual responsibility for a crime will attach to a person
who
(a) commits crime, whether individually, jointly or through another
person
(b) orders, solicits or induces the commission of such a crime which
in fact occurs or is attempted;
(c) Aids, abets or assists in commission or attempted commission,
for the purpose of facilitating the commission of that crime
(d) Intentionally contributes to commission or attempted
commission of a crime by a group acting with a common purpose
(e) for genocide, directly and publicly incites others to commit
genocide
(f) attempts the crime by means of a substantial step...

24. Persons in official capacity
• Art 27: statute applies equally to all persons regardless of
official capacity
• Immunities which attach to the official capacity of a person
shall not bar the Court from exercising jurisdiction.
• Art 28: military commander or person acting effectively as
military commander shall be criminally responsible for crimes
committed by forces under effective command and control
where
• The commander knew or should have known that under
their command were committing or about to commit
crimes;
• Commander failed to take all necessary and reasonable
measures to prevent commission of crime.

25. Excluding criminal responsibility
• Art 30 (mental element): only liable where material elements of
crime are committed with intent and knowledge.
• Person has intent where they mean to engage in conduct, or they
mean to cause a consequence, or they are aware that the
consequence will occur in the ordinary course of events
• Knowledge means awareness that a circumstance exists or that a
consequence will occur in the ordinary course of events.
• Art 31: grounds for excluding criminal responsibility:
a) Mental disease or defect
b) Intoxication which destroys capacity
c) Self defence or defence of another
d) Duress resulting from threat of imminent death or serious bodily
harm
• Art 32: mistake of fact or law where it negates mental element.

26. Excluding responsibility: superior
orders
• Art 33 (1) The fact that crime was committed pursuant to
order of a superior will not exclude criminal responsibility
unless:
(a) person under legal obligation to obey order
(b) did not know that order was unlawful
(c) order was not manifestly unlawful.
(2) Orders to commit crimes against humanity and genocide are
manifestly unlawful.
Could be seen as ‘softening’ of Nuremberg approach to the
defence of superior orders – although it is similar to the pre-
WWII approach of conditional liability.

27. ICC: Progress to date
• 23 cases in 10 situations:
• Self-referral of Uganda, Dem Rep of Congo,
Central African Republic (2 situations) and Mali
• Security Council referral for situations in Darfur
(Sudan) and Libya (both non-state parties)
• Prosecutor initiated investigations in Georgia,
Kenya and Cote D’Ivoire
• Also preliminary examinations under way in
Afghanistan, Guinea, Colombia, Honduras,
Korea and Nigeria.

28. Progress to date cont/…
• CAR:
• Prosecutor v Bemba Gombo: convicted March 2016 of crmes against humanity
and war crimes. First conviction based on command responsibility, and first
conviction for crimes based on sexual violence.
• DRC:
• Prosecutor v Thomas Lubanga Dyilo: convicted of war crimes of enlisting
children under 15 and using them to participate actively in hostilities –
sentenced to 14 years.
• Libya:
• Prosecutor v Muammar Gaddafi – arrest warrant terminated following his death
in Nov 2011;
• Prosecutor v Saif Al-Islam Gaddafi – ICC arrest warrant but held in Libyan
custody; admissibility challenge rejected May 2013.
• Prosecutor v Abdulla Al-Senussi – ICC accepted Libya’s admissibility challenge re
Al-Senussi under art 17 in Oct 2013. This decision was confirmed on appeal and
the case was declared inadmissible.

29. Discussion questions
• How is the principle of complementarity linked to State
sovereignty? How does it help to ensure participation of
States in the ICC?
• Do you think the Rome Statute of the International Criminal
Court establishes jurisdiction, rules and procedures which are
adequate for ensuring that the perpetrators of egregious
violations are held accountable for their actions? Can you
identify any shortcomings or gaps?
• Does the Rome Statute strike an appropriate balance in terms
of attributing responsibility to commanders and subordinates
involved in violations of international law?