WEEK 1 - HISTORY, STRUCTURE AND JURISDICTION OF INTERNATIONAL CRIMINAL
TRIBUNALS
Ben Ferencz (Prosecuting Evil)
International Criminal Law (ICL)
- ICL stricto sensu (core crimes): crimes that give rise to criminal responsibility
directly through international law
o genocide
o crimes against humanity
o war crimes
o aggression
- transnational criminal law (TCL): crimes that give rise to international criminal
responsibility, but not directly through international law through domestic legal
system (wider system)
o piracy and maritime offences (outside of jurisdictions of states and involves
interests of all states)
o slave trading, human trafficking
o drug trafficking
o terrorism: drafting of Rome Statute in ’98 (and 9/11 happened after)
difficulties is terminology and definitions
o transnational organized crimes
o corruption
o money laundering
why difference? no inherent distinction between the two bodies of crime (it is just how
the law has developed)
core crimes
- crimes against humanity: certain acts that are purposefully committed as part of a
widespread or systematic policy, directed against civilians, in times of war or peace
- genocide: any of the following acts (Genocide Convention) committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group
- aggression: violation of prohibition of use of force
- war crimes: grave breaches of the Geneva Conventions (international humanitarian
law)
, international crimes: so grave, to such concern to the international community, and goes
against the international community as such, that couldn’t just leave it to the national systems
individual criminal responsibility
- individuals possess rights (IHL), but also have obligations (ICL, duties that they can
violate)
- when state violates obligation on HRL/IHL international wrongful act by a state
- there is no such thing as a crime that has been committed by a state only
individual criminal responsibility, not as a whole state
- even when international law seeks to regulate relations between states (and secondly
IO’s)
- revolutionary: international law mainly seeks to regulate relations between States
o ‘crimes against international law are committed by men, not by abstract
entities’ (Nuremberg trials)
o by prosecuting them we will make sure that these crimes never happen again
notion of ICL
- ICL: international rules
o create direct individual
responsibility for international
crimes
- international crimes: ‘most serious
crimes of concern to the whole
international community as a whole)
- four core crimes
ICL as part of PIL
- PIL traditionally: Law of Nations
- states: traditional subjects of PIL
o deals with relations between States
o IOs second important subject
- first problem with ICL and PIL
o individuals for long time had no rights and duties in PIL
exceptions: piracy, war crimes, cable crimes (cables under water with
communication purposes)
, o but: influence of human rights doctrine
- specially after WII
o individuals became more subject to international law
o obligations & rights (legal personality, protection, but also rights)
o nowadays, individual has gained legal personality in areas such as:
HR, IHL, ICL
European Union Law
- second problem
o enforcement horizontal nature
reprisals/counter measures were the ‘old school’ enforcement
mechanisms
o no real executive (SC?)
o no compulsory jurisdiction (usually based on consent)
ICJ, Ad hoc-Tribunals
o thus, not best starting print for ICL
the State and ICL
examples which might lead to the application of ICL
- international conflicts (between states)
- civil wars
- international terrorism (against states)
- human rights (provided/violated by states)
- criminal prosecution of war criminals
features of ICL
- ICL relatively new branch of PIL
still very rudimentary
- substantive rules (crimes) have evolved slowly criminal tribunals (ICTY/ICTR) have
furthered this and the interpretation of the crimes, but limited and slowly
- objective element (actus res) and subjective element (mens rea) not immediately for
every crime
o very general
o Rome Statute
o issues: legal certainty, principle of legality
- rules concerning punishment sometimes very general
- procedural rules and general part still in process of evolution
, principle of legal certainty and legality
ICL derives its origin draws upon
- human rights law
o focus on the individual, concern of the international community as a whole
o fundamental right of the suspect and the accused, victims and witnesses
- national criminal law
o gradual transposition of rules and legal constructs in national legal orders
‘general principles of international law’ (ICJ Statute)
o ICL: a patchwork of common law and civil law principles
ICL has a double nature
1. criminal law
2. part of PIL
- sometimes conflicting philosophies
o criminal law: repression + very details, rights of accused, witnesses
o and victim protection
o PIL: diplomacy, prevention + very often unclear, soft law, ambiguous
- ICL hybrid branch of law
rules of ICL emanate from sources of PIL
- conventions
- custom
- general principles
- judicial decisions
interpretation of rules according to PIL rules
HISTORY
first examples of prosecution
- ancient times: examples for prosecution of war crimes in Ancient Greece (war crimes
are a very ancient concept)
- but for long time violations of IHL were not followed by individual criminal
responsibility
o reason: State-centered approach to PIL
- 1268: Conaradin of Hohenstaufen
TRIBUNALS
Ben Ferencz (Prosecuting Evil)
International Criminal Law (ICL)
- ICL stricto sensu (core crimes): crimes that give rise to criminal responsibility
directly through international law
o genocide
o crimes against humanity
o war crimes
o aggression
- transnational criminal law (TCL): crimes that give rise to international criminal
responsibility, but not directly through international law through domestic legal
system (wider system)
o piracy and maritime offences (outside of jurisdictions of states and involves
interests of all states)
o slave trading, human trafficking
o drug trafficking
o terrorism: drafting of Rome Statute in ’98 (and 9/11 happened after)
difficulties is terminology and definitions
o transnational organized crimes
o corruption
o money laundering
why difference? no inherent distinction between the two bodies of crime (it is just how
the law has developed)
core crimes
- crimes against humanity: certain acts that are purposefully committed as part of a
widespread or systematic policy, directed against civilians, in times of war or peace
- genocide: any of the following acts (Genocide Convention) committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group
- aggression: violation of prohibition of use of force
- war crimes: grave breaches of the Geneva Conventions (international humanitarian
law)
, international crimes: so grave, to such concern to the international community, and goes
against the international community as such, that couldn’t just leave it to the national systems
individual criminal responsibility
- individuals possess rights (IHL), but also have obligations (ICL, duties that they can
violate)
- when state violates obligation on HRL/IHL international wrongful act by a state
- there is no such thing as a crime that has been committed by a state only
individual criminal responsibility, not as a whole state
- even when international law seeks to regulate relations between states (and secondly
IO’s)
- revolutionary: international law mainly seeks to regulate relations between States
o ‘crimes against international law are committed by men, not by abstract
entities’ (Nuremberg trials)
o by prosecuting them we will make sure that these crimes never happen again
notion of ICL
- ICL: international rules
o create direct individual
responsibility for international
crimes
- international crimes: ‘most serious
crimes of concern to the whole
international community as a whole)
- four core crimes
ICL as part of PIL
- PIL traditionally: Law of Nations
- states: traditional subjects of PIL
o deals with relations between States
o IOs second important subject
- first problem with ICL and PIL
o individuals for long time had no rights and duties in PIL
exceptions: piracy, war crimes, cable crimes (cables under water with
communication purposes)
, o but: influence of human rights doctrine
- specially after WII
o individuals became more subject to international law
o obligations & rights (legal personality, protection, but also rights)
o nowadays, individual has gained legal personality in areas such as:
HR, IHL, ICL
European Union Law
- second problem
o enforcement horizontal nature
reprisals/counter measures were the ‘old school’ enforcement
mechanisms
o no real executive (SC?)
o no compulsory jurisdiction (usually based on consent)
ICJ, Ad hoc-Tribunals
o thus, not best starting print for ICL
the State and ICL
examples which might lead to the application of ICL
- international conflicts (between states)
- civil wars
- international terrorism (against states)
- human rights (provided/violated by states)
- criminal prosecution of war criminals
features of ICL
- ICL relatively new branch of PIL
still very rudimentary
- substantive rules (crimes) have evolved slowly criminal tribunals (ICTY/ICTR) have
furthered this and the interpretation of the crimes, but limited and slowly
- objective element (actus res) and subjective element (mens rea) not immediately for
every crime
o very general
o Rome Statute
o issues: legal certainty, principle of legality
- rules concerning punishment sometimes very general
- procedural rules and general part still in process of evolution
, principle of legal certainty and legality
ICL derives its origin draws upon
- human rights law
o focus on the individual, concern of the international community as a whole
o fundamental right of the suspect and the accused, victims and witnesses
- national criminal law
o gradual transposition of rules and legal constructs in national legal orders
‘general principles of international law’ (ICJ Statute)
o ICL: a patchwork of common law and civil law principles
ICL has a double nature
1. criminal law
2. part of PIL
- sometimes conflicting philosophies
o criminal law: repression + very details, rights of accused, witnesses
o and victim protection
o PIL: diplomacy, prevention + very often unclear, soft law, ambiguous
- ICL hybrid branch of law
rules of ICL emanate from sources of PIL
- conventions
- custom
- general principles
- judicial decisions
interpretation of rules according to PIL rules
HISTORY
first examples of prosecution
- ancient times: examples for prosecution of war crimes in Ancient Greece (war crimes
are a very ancient concept)
- but for long time violations of IHL were not followed by individual criminal
responsibility
o reason: State-centered approach to PIL
- 1268: Conaradin of Hohenstaufen
