Summary | Public International Law | Jaar 3
1
Week 5: International criminal law
There are close connections between international humanitarian law and international criminal law.
The most obvious is the circumstance that war crimes trials have played a major role in the
development of what is commonly referred to as international criminal law. These two branches
overlap, but are not identical. International criminal law assigns responsibility to individuals and
thereby breaks through the classic structure of international law.
Module 13: The Jurisdiction of Domestic Criminal Courts and International Criminal Courts and
Tribunals under International law
International criminal law is a branch of public international law that can be divided into:
a. Substantive rules: the substantive component of international criminal law consists of rules
identifying the offences that amount to international crimes, for which individuals can be held
responsible. The following offences are recognised as the 'core' categories of crimes under
international law: genocide (Article 6), crimes against humanity (Article 7), war crimes (Article
8) and aggression (Article 8bis). Each of these crimes consists of various separate criminal
acts, such as killing, torture, displacement of people et cetera. The definitions of these
international crimes found under the Rome Statute of the International Criminal Court are
considered to reflect the generally accepted understandings in customary international law.
Remember, such substantive rules are also known as primary rules.
b. Procedural rules: the procedural component of international criminal law consists of rules
regulating the international proceedings for prosecuting persons accused of international
crimes. Importantly, it also includes rules related to the jurisdiction of international courts and
tribunals. Remember, procedural rules are also known as secondary rules
Jurisdiction of Domestic Courts
The jurisdiction of domestic (national) courts to prosecute and punish alleged perpetrators of
international crimes, is typically based in domestic legislation. It is domestic legal provisions that
define the crimes and empower domestic courts to exercise jurisdiction over them.
Traditionally, domestic courts have exercised jurisdiction in respect of international crimes on the
basis of the following legal principles:
● Territoriality principle.
● Active nationality principle.
● Passive nationality principle.
● Universality principle.
Immunity High-Ranking Officials before Domestic Courts
A problem that several domestic courts have faced concerns the immunity from criminal jurisdiction of
incumbent (in office) or former high-ranking state officials. Note: that former or incumbent
high-ranking state officials do not have immunity before the prominent international criminal
courts/tribunals.
High-ranking state officials, irrespective of whether they are incumbent, do not enjoy immunity before
the ICTY and ICTR (Articles 7(2) ICTY Statute and 6(2) ICTR Statute). This situation is similar to that
of the International Criminal Court [ICC, Article 27 Rome Statute].
Jurisdiction of the ICTY and ICTR
The International Criminal Tribunal for Yugoslavia [ICTY] and the International Criminal Tribunal for
Rwanda [ICTR] were both created by binding resolutions of the UN Security Council, acting under
Chapter VII of the UN Charter. The ICTY was set up by SC Resolution 827 and the ICTR by SC
, Summary | Public International Law | Jaar 3
2
Resolution 955. By contrast, the ICC was established by an international treaty: the Rome Statute
(has complementary jurisdiction).
The Statutes of the ICTY and the ICTR provide that each tribunal possesses territorial and temporal
jurisdiction (Articles 8 ICTY and 7 ICTR Statute). The Statutes of the ICTY and ICTR provide that the
ICTY and ICTR have concurrent jurisdiction with domestic criminal courts to prosecute persons for
serious violations of international criminal law. However, in case of conflict, primacy is given to the
jurisdiction of the tribunals (Article 9 ICTY Statute and 8 Statute ICTR).
The ICTY and the ICTR have jurisdiction with respect to the crimes of genocide, war crimes and
crimes against humanity (Articles 2, 3, 4 and 5 ICTY Statute and Articles 2, 3, and 4 ICTR Statute).
Note: the crime of aggression, which is found within the jurisdiction of the ICC, is not included in the
Statutes of the ICTY and the ICTR. Although the material jurisdictions of the ICTY and ICTR are
limited to the crimes of genocide, war crimes and crimes against humanity, the precise scope of each
of these crimes has been further expanded through the jurisprudence of the Tribunals.
Primacy and Kompetenz-Kompetenz
The judges of the ICTY have drawn up a set of rules on the primacy of the Tribunal (Rules of
Procedure and Evidence: RPE). These rules are also used by the judges of the ICTR.
● These rules determine the conditions under which the Prosecutor of the Tribunal may assert
its primacy (Rule 9 RPE).
● Furthermore, the RPE determines the conditions under which the Tribunal may refer cases
back to the domestic criminal courts (Rule 11 bis RPE).
In the Tadić case, the ICTY clearly relied upon its primacy. The Tribunal requested Germany, whose
authorities were investigating Tadić's alleged crimes, to defer the case and surrender Tadić to the
Tribunal [para. 58: x, para. 41 and 42: decision].
In the Tadic case, the defendant challenged the jurisdiction of the ICTY. This challenge led to a
landmark decision by the Tribunal concerning its jurisdiction. The Tribunal pronounced that when
there is a dispute regarding its jurisdiction, the Tribunal has an inherent competence to determine the
extent of its own jurisdiction: known as Kompetenz-Kompetenz [para. 14-22, 1995].
In addition, the defendant in the Tadic case challenged the power of the UN Security Council to set up
a criminal tribunal (by Resolution, acting on the basis of Chapter VII UN Charter). The argument
employed featured three strands [para. 35, 1995]:
● that the UN Charter did not confer upon the UNSC the power to set up a judicial organ;
● that the UNSC, not itself a judicial body, could thus not set up an institution with judicial
powers and;
● that the setting up of a judicial body fell outside the mandate of the UNSC, which is to
maintain international peace and security.
Closure
The ICTR and the ICTY have (in essence) completed their respective mandates and have therefore
been closed. Some remaining work of the Tribunals, such as uncompleted appellate cases and
overseeing the implementation of sentences, is gradually being transferred to a smaller body set up
by the USC: Residual Mechanism for International Criminal Tribunals (MICT).
Jurisdiction of the ICC
The ICC was created by a treaty: Rome Statute. This treaty was adopted at a UN Diplomatic
Conference, held in Rome. It is important to recognise that the ICC is an international criminal law
court. As such, important principles derived from criminal law traditions of various parts of the world
1
Week 5: International criminal law
There are close connections between international humanitarian law and international criminal law.
The most obvious is the circumstance that war crimes trials have played a major role in the
development of what is commonly referred to as international criminal law. These two branches
overlap, but are not identical. International criminal law assigns responsibility to individuals and
thereby breaks through the classic structure of international law.
Module 13: The Jurisdiction of Domestic Criminal Courts and International Criminal Courts and
Tribunals under International law
International criminal law is a branch of public international law that can be divided into:
a. Substantive rules: the substantive component of international criminal law consists of rules
identifying the offences that amount to international crimes, for which individuals can be held
responsible. The following offences are recognised as the 'core' categories of crimes under
international law: genocide (Article 6), crimes against humanity (Article 7), war crimes (Article
8) and aggression (Article 8bis). Each of these crimes consists of various separate criminal
acts, such as killing, torture, displacement of people et cetera. The definitions of these
international crimes found under the Rome Statute of the International Criminal Court are
considered to reflect the generally accepted understandings in customary international law.
Remember, such substantive rules are also known as primary rules.
b. Procedural rules: the procedural component of international criminal law consists of rules
regulating the international proceedings for prosecuting persons accused of international
crimes. Importantly, it also includes rules related to the jurisdiction of international courts and
tribunals. Remember, procedural rules are also known as secondary rules
Jurisdiction of Domestic Courts
The jurisdiction of domestic (national) courts to prosecute and punish alleged perpetrators of
international crimes, is typically based in domestic legislation. It is domestic legal provisions that
define the crimes and empower domestic courts to exercise jurisdiction over them.
Traditionally, domestic courts have exercised jurisdiction in respect of international crimes on the
basis of the following legal principles:
● Territoriality principle.
● Active nationality principle.
● Passive nationality principle.
● Universality principle.
Immunity High-Ranking Officials before Domestic Courts
A problem that several domestic courts have faced concerns the immunity from criminal jurisdiction of
incumbent (in office) or former high-ranking state officials. Note: that former or incumbent
high-ranking state officials do not have immunity before the prominent international criminal
courts/tribunals.
High-ranking state officials, irrespective of whether they are incumbent, do not enjoy immunity before
the ICTY and ICTR (Articles 7(2) ICTY Statute and 6(2) ICTR Statute). This situation is similar to that
of the International Criminal Court [ICC, Article 27 Rome Statute].
Jurisdiction of the ICTY and ICTR
The International Criminal Tribunal for Yugoslavia [ICTY] and the International Criminal Tribunal for
Rwanda [ICTR] were both created by binding resolutions of the UN Security Council, acting under
Chapter VII of the UN Charter. The ICTY was set up by SC Resolution 827 and the ICTR by SC
, Summary | Public International Law | Jaar 3
2
Resolution 955. By contrast, the ICC was established by an international treaty: the Rome Statute
(has complementary jurisdiction).
The Statutes of the ICTY and the ICTR provide that each tribunal possesses territorial and temporal
jurisdiction (Articles 8 ICTY and 7 ICTR Statute). The Statutes of the ICTY and ICTR provide that the
ICTY and ICTR have concurrent jurisdiction with domestic criminal courts to prosecute persons for
serious violations of international criminal law. However, in case of conflict, primacy is given to the
jurisdiction of the tribunals (Article 9 ICTY Statute and 8 Statute ICTR).
The ICTY and the ICTR have jurisdiction with respect to the crimes of genocide, war crimes and
crimes against humanity (Articles 2, 3, 4 and 5 ICTY Statute and Articles 2, 3, and 4 ICTR Statute).
Note: the crime of aggression, which is found within the jurisdiction of the ICC, is not included in the
Statutes of the ICTY and the ICTR. Although the material jurisdictions of the ICTY and ICTR are
limited to the crimes of genocide, war crimes and crimes against humanity, the precise scope of each
of these crimes has been further expanded through the jurisprudence of the Tribunals.
Primacy and Kompetenz-Kompetenz
The judges of the ICTY have drawn up a set of rules on the primacy of the Tribunal (Rules of
Procedure and Evidence: RPE). These rules are also used by the judges of the ICTR.
● These rules determine the conditions under which the Prosecutor of the Tribunal may assert
its primacy (Rule 9 RPE).
● Furthermore, the RPE determines the conditions under which the Tribunal may refer cases
back to the domestic criminal courts (Rule 11 bis RPE).
In the Tadić case, the ICTY clearly relied upon its primacy. The Tribunal requested Germany, whose
authorities were investigating Tadić's alleged crimes, to defer the case and surrender Tadić to the
Tribunal [para. 58: x, para. 41 and 42: decision].
In the Tadic case, the defendant challenged the jurisdiction of the ICTY. This challenge led to a
landmark decision by the Tribunal concerning its jurisdiction. The Tribunal pronounced that when
there is a dispute regarding its jurisdiction, the Tribunal has an inherent competence to determine the
extent of its own jurisdiction: known as Kompetenz-Kompetenz [para. 14-22, 1995].
In addition, the defendant in the Tadic case challenged the power of the UN Security Council to set up
a criminal tribunal (by Resolution, acting on the basis of Chapter VII UN Charter). The argument
employed featured three strands [para. 35, 1995]:
● that the UN Charter did not confer upon the UNSC the power to set up a judicial organ;
● that the UNSC, not itself a judicial body, could thus not set up an institution with judicial
powers and;
● that the setting up of a judicial body fell outside the mandate of the UNSC, which is to
maintain international peace and security.
Closure
The ICTR and the ICTY have (in essence) completed their respective mandates and have therefore
been closed. Some remaining work of the Tribunals, such as uncompleted appellate cases and
overseeing the implementation of sentences, is gradually being transferred to a smaller body set up
by the USC: Residual Mechanism for International Criminal Tribunals (MICT).
Jurisdiction of the ICC
The ICC was created by a treaty: Rome Statute. This treaty was adopted at a UN Diplomatic
Conference, held in Rome. It is important to recognise that the ICC is an international criminal law
court. As such, important principles derived from criminal law traditions of various parts of the world
