1. International Criminal Law Minna Kimpimäki University of Lapland 2008

2. Timetable Tue 9.9. at 10-12, lr 6 Wed 10.9. at 10-12, lr 6 Thu 11.9. at 10-12, lr 6 Fri 12.9. at 10-12, lr 6 Lecture test I, Mon 15.9 at 10-12, lr 10 Lecture test II, Mon 22.9. at 10-12, lr 6 Essays: deadline Fri 10.10.2008

3. Courses OLAW0302 INTERNATIONAL CRIMINAL LAW  Lectures + lecture test + essay compensate the litterature of the course OAIT1014 KANSAINVÄLINEN RIKOSOIKEUS  Luennot + luentokuulustelu + essee korvaavat opintojakson kirjallisuuden OAIO1001 RIKOSOIKEUS  Luennot + luentokuulustelu: kelpaa pakolliseksi luentosarjaksi (0,5 op. keskeneräisiin opintoihin) OSYO0102 RIKOSOIKEUDEN PROJEKTIOPETUS  Luennot + luentokuulustelu/luentopäiväkirja ovat osa projektiohjelmaa

4. Instructions for the essays Max. 10 pages May be written in English or in Finnish Student may decide the theme - must be connected to international criminal law May be done alone or in groups of 2-3 students All sources used (including Internet sources) must be mentioned in a list of sources AND at the text (footnotes/brackets) !!! Use different kind of sources: books, articles etc. - NOT only Internet sources! DO NOT copy directly from the Internet! DEADLINE Fri 10.10.2008

5. Basic Concepts

6. International law / International Criminal Law Traditionally international law and criminal law have been regarded as separate areas of law  Criminal law in the competence of sovereign states Compare: INTERNATIONAL CRIMINAL LAW  As an area of law is located in between international law, criminal law and criminal procedure

7. International criminal law – a special area of law or a part of other areas of law? INTERNATIONAL LAW INTERNATIONAL CRIMINAL (AND PROCEDURAL) LAW CRIMINAL LAW PROCEDURAL LAW

8. Contents of the International criminal law Crimes / Substantive int:l criminal law  Crimes (f.ex. war crimes, genocide, terrorist acts)  General principles (f.ex. immunity, retroactivity, statutes of limitations) Enforcement / Adjective int:l criminal law  Jurisdiction of states  International tribunals  International co-operation between states (f.ex. extradition)

9. Enforcement of international criminal law Mechanisms of direct enforcement  International tribunals: enforcement directly at the international level Mechanisms of indirect enforcement  National courts: enforcement at the national level Prosecution Extradition

10. Aim & Limits of international criminal law Aim  To secure prosecution for serious crimes No escape from the punishment  Protection for human rights Limits  Sovereignty of the states Connection between the crime and the prosecuting state is demanded  Human rights, principle of legality…

11. International Crimes

12. International crimes International or transnational character  committed on the area of several states / common threat to several states Serious nature  threat to the peace and stability in general even if committed on the area of one state International measures  conventions / international tribunals / extraterritorial jurisdiction

13. Two groups of international crimes: A. Core crimes Core crimes, international crimes in the narrow sense, crimes under general international law  Basis in the customary law: individual responsibility directly on the basis of international law  Created after WW II  War crimes, crimes against humanity, genocide  International tribunals

14. B. Treaty crimes Treaty crimes / common international crimes / international crimes in the broad sense  Basis in international treaties, criminalizations in national criminal codes of the states  Enforcement in states: extradition/prosecution  First international treaties at the late 19th and early 20th century (slave trade, piracy, narcotics)  Several treaties since 70’ies, still expanding

15. Typical features of international treaties Definitions of crimes Obligations to make punishable Statements concerning punishments Jurisdictional obligations Obligations to prosecute/extradite Regulations concerning co-operation in criminal matters and extradition

16. In treaties creating international crimes:  Rules concerning definitions, jurisdiction, co-operation …  Obligation to create criminal legislation on national level ”Each State Party shall make the crimes set out in paragraph 1 punishable…”  Often obligation to extradite or to prosecute (Aut dedere aut iudicare) ”The State Party in whose territory the alleged offender is present shall, if it does not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the law of that State…”  Some demands for the punishment (often very general in nature) ”by appropriate penalties which shall take into account their grave nature”

17. The role of int:l organizations Most treaties are created in the context of international organizations  United Nations  Council of Europe  European Union  Red Cross  International Civil Aviation Organization  International Maritime Organization …

18. European union and international criminal law Originally criminal law was not a task of the EU Nowadays EU regulation has important effects on national legislation  Protection of the economic interests of EU  Council framework decisions F.ex. Council framework decision on combatting terrorism, 13.6.2002 (2002/475/YOS) Binding for members states vs. no direct power to enact criminal law – minimum rules for crime definitions and punishments

19. I Crimes committed during armed conflict & other serious violations of human rights A.Core crimes that are in the jurisdiction of international criminal tribunals B.Other serious violations of human rights

20. A. Offences that are in the jurisdiction of the criminal tribunals (esp. ICC) War crimes Crimes against humanity Genocide --- (The crime of aggression)

21. War crimes, law of Geneva: humanitarian restrictions of warfare  Geneva conventions 1949 I: wounded and sick in armed forces in the field II: wounded, sick and shipwreked members of armed forces at sea III: prisoners of war IV: civilian persons in time of war  Grave breaches: obligation to extradite or to punish  Definition of war crimes in the statutes of international criminal tribunals  Cases in the international criminal tribunals & in the national courts

22. War crimes, law of Hague: restrictions of the weapons and of the methods of warfare  ICC statute art. 8(2)  Protection of cultural property in the event of armed conflict  Prohibition of the recruitment, use, financing and training of mercenaries  Prohibition of chemical weapons  Prohibition of biological weapons  Prohibition of anti-personnel mines

23. ICC, 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 a part of a large- scale commission of such crimes 2. For the purpose of this Statute, ”war crimes” means: … art. 8 continues ►

24. 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 the body or health; 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; vi.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. … art 8 continues ►

25. b)Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely, any of the following acts: i.Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities; ii.Intentionally directing attacks against civilian objects which are not military objectives; iii.Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; … art 8 continues ►

26. iv.intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; v.Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; vi.Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; vii.Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; … art. 8 continues ►

27. viii.The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; ix.Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; x.Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause to or seriously endanger the health of such person or persons; xi.Killing or wounding treacherously individuals belonging to the hostile nation or army; … art. 8 continues ►

28. xii. Declaring that no quarter will be given; xiii.Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; xiv.Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; xv.Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; xvi.Pillaging a town or place, even when taken by assault; xvii.Employing poison or poisoned weapons; xviii.Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; xix.Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; … art. 8 continues ►

29. xx.Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; xxi.Committing outrages upon personal dignity, in particular humiliating and degrading treatment; xxii.Committing rape, sexual slavery, enforced prostitution forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; … art. 8 continues ►

30. xxiii.Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; xxiv.Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems or the Geneva Conventions in conformity with international law; xxv.Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva conventions; xxvi.Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. … art. 8 continues ►

31. 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, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: i.Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ii.Committing outrages upon personal dignity, in particular humiliating and degrading treatment; iii. Taking of hostages; iv.The passing of sentences and the carrying out of executions without previous judgement pronounced by a regulatory constituted court, affording all judicial quarantees which are generally recognized as indispensable. … art. 8 continues ►

32. d)Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. e)Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: i.Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; ii.Intentionally directing attacs against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; … art. 8 continues ►

33. iii.Intentionally directing attacks against personnel, installations, material, units or vihicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; iv. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; v. Pillaging a town or place even when taken by assault; vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; … art. 8 continues ►

34. vii.Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; viii.Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; ix.Killing or wounding treacherously a combatant adversary; x.Declaring that no quarter will be given; xi.Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; … art. 8 continues ►

35. xii. Destroying or seizing the property of anadversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; f)Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts or a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3.Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. ■

36. Crimes against humanity  This group of international crimes was created after WWII  No general convention of these crimes  Definition in the statutes of international criminal tribunals  International restrictions for the national politics of the state  A crime committed against groups of people Rome statute: committed as part of a widespread or systematic attack directed against any civilian population

37. ICC, 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: … art. 7 continues ►

38. 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 or comparable gravity; h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

39. 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. Paragraphs 2-3: Definitions (”Attack directed against any civilian population”, ”Extermination”, ”Enslavement”, ”Deportation or forcible transfer of population”, ”Torture”, ”Forced pregnancy”, ”Persecution”, ”The crime of apartheid”, ”Enforced disappearance of persons”, ”gender”) ■

40. Genocide  Prohibition of massive destruction of human lifes Directed against a protected group A purpose to destroy this group  Often done with knowledge, approval or participation of the decisionmakers of the state Need for international measures  Convention on the prevention and punishment of the crime of genocide (1948) Same defintions have also been taken to the statutes of international criminal tribunals

41.  Definition of genocide Purpose to distroy partly or totally a group mentioned in the convention Act is directed against a group of people National, ethnic, racial or religious group Methods:  Killing,  Causing serious bodily or mental harm,  Inflicting on the conditions of life,  Measures intented to prevent births,  Transferring children of the group to another group

42. ICC, 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.

43. Genocide: individual criminal responsibility?/ state responsibility?: The criminal responsibility of individuals  International tribunals  National courts The responsibility of states  International responsibility, not criminal responsibility International Court of Justice (ICJ): Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007

44. Crimes against peace (aggression)  Most disputed of the war crimes Is there individual criminal responsibility on the basis of international law?, How wide is this responsibility?  Was created in the statute of the Nuremberg tribunal  Was not taken in the statutes of the ad hoc – tribunals  No definition in Rome statute

45. Definitions are partly overlapping – F.ex. Rape in the armed conflict  ICTY & ICTR statutes: rape is mentioned as a crime against humanity  Practice of these courts: Sexual violence may be regarded as  crime against humanity  war crime (see f.ex. ICTY Furundzija)  genocide (see f.ex. ICTR Akayesu)  torture (see. f.ex. ICTY Furundzija)  ICC – Rome Statute: rape mentioned as a war crime and as a crime against humanity  Rape + other forms of sexual violence (sexual slavery, enforced prostitution, forced pregnancy, forced sterilization & other forms of sexual violence)

46. B. Other serious violations of human rights Racial discrimination & apartheid Forced disappearance of persons Torture

47. Racial discrimination & apartheid  International convention on the elimination of all forms of racial discrimination  International convention on the suppression and punishment of the crime of apartheid (1973) Policies and practices of racial segregation and discrimination Inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them

48. Forced disappearance of persons  International convention for the protection of all persons from enforced disappearance (not in force yet) Arrest, detention, abduction or other deprivation of liberty Perpetrated by agents of the state or by persons/groups acting with the authorization, support or acquiescence of the state, Followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person Person is placed outside the protection of the law

49. Torture  Convention against torture and other cruel, inhuman or degrading treatment or punishment (1984) Infliction of severe pain or suffering, whether physical or mental, which does not arise only from lawful sanctions The intentional infliction of pain or suffering The involvement of a public official in the commission of an act of torture or in its authorization  Torture / other cruel, inhuman or degrading treatment - Ireland v. United Kingdom  National courts, international tribunals, supervision of human rights…

50. II Offences connected to terrorism

51. Terrorism  Several treaties regulating different forms of terrorist action No global, comprehensive treaty European convention on the suppression of terrorism (1977)  Definition of terrorism? Use/threat of violence Creation of an atmosphere of fear Attempt to influence on the acts or opinions of other persons or institutions

52. Criminal acts against air traffic  Increase of criminal acts against air traffic at - 60’ies and -70’ies, international nature of the acts: Convention for the suppression of unlawful seizure of aircraft (Hague, 1970) Convention for the suppression of unlawful act against the safety of civil aviation (Montreal, 1971)  Lockerbie -case

53. Piracy  Historically high seas were an important economical, political and militarian arena  Special jurisdiction on the basis of customary law: any state (earlier any person) has the right to punish for piracy  UN convention on the high seas 1958 / UN convention on the law of the sea 1982 Very restrictive definition:  Illegal violence against another vessel,  for private purposes,  on the high seas

54. Criminal acts against the safety of maritime navigation  Convention for the suppression of unlawful acts against the safety of maritime navigation (1988) Protocol: safety of fixed platforms located on the continental shelf  Regulation concerning piracy was not comprehensive enough – new treaties were needed Achille Lauro  In new treaties similar regulation as in the previous treaties concerning air traffic

55. Criminal acts against internationally protected persons  Need to grant the safety of diplomatic personnel and of the personnel in peace keeping forces: Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents (1973)  Violence / threat against protected person or his/her family (f.ex. killing, kidnapping etc), attacks against his/her apartment, office or means of transport Convention on the safety of United nations and associated personnel

56. Taking of hostages  International convention against the taking of hostages (1979) Taking a hostage in order to force a third person to do something  Covers acts that are part of political terrorism but also acts that are done for private ends (f.ex. economic purposes)  International element is demanded

57. Terrorist bombings  International convention for the suppression of terrorist bombings (1997) Delivers, places, discharges, detonates explosive or other lethal device in, into or against place of public use, a State or government facility, a public transportation system or an infrastructure facility Financing of terrorism  International convention for the suppression of the financing of terrorism (1999) Prohibition to provide or collect funds with intention that they should be used or in knowledge that they are to be used in order to carry out a terrorist offence

58. III Offences connected to organized crime

59. Organized crime  United nations convention against transnational organized crime Three protocols:  trafficking in persons,  smuggling of migrants  illegal manufacture of and trade in arms  Organized criminal group Three or more persons Exists for a period of time Acts in concert with an aim of committing one or more serious crimes or offences In order to obtain, directly or indirectly, financial or other material benefit

60. Narcotic drugs – a complex set of international treaties  Single convention on narcotic drugs (1961)  Convention on psychotropic substances (1971)  United nations convention against illicit traffic in narcotic drugs and psychotropic substances (1988) Cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery, transport, importation and exportation, money laundering Offences and sanctions, jurisdiction, confiscation, extradition, mutual legal assistance, transfer of proceedings

61. Trafficking in persons / smuggling of migrants  International treaties etc: Protocols for the UN convention against organized crime, Council of Europe convention on action against trafficking in human beings, Council framework decisions (EU)  Trafficing: Act: recruitment, transportation, transfer, receipt … Means: threat, use of force, deception, abuse of vulnerability … Aim/purpose: exploitation (sexual exploitation, forced labour, removal of organs …)  Trafficking in persons – Smuggling of migrants

62. Counterfeiting currency  International convention for the suppression of counterfeiting currency (1929)  Council framework decision (14.6.2000, 2000/383/YOS) – protection of the Euro Money laundering  Rules concerning f.ex. money laundering in international treaties concerning organized crime and drug trafficking  Directive & Council framework decision (EU) concerning money laundering Corruption  Active / passive  EU, OECD, Council of Europe, UN treaty against transnational organized crime, UN treaty against corruption

63. Enforcement

64. I Criminal Jurisdiction

65. Jurisdiction Persons who have committed crimes travel from state to another  International crimes  Common crimes having international connections Idea that there should be no escape from the criminal proceedings – fight against impunity Rules of jurisdiction in national legislation  Sovereignty of states, no jurisdiction on arbitrary basis (nexus demanded) vs.  Jurisdictional obligations in international treaties

66. Forms of jurisdiction Legislative jurisdiction (jurisdiction to prescribe)  Jurisdiction to establish the contents and application of national criminal law Judicial jurisdiction (jurisdiction to adjudicate)  Jurisdiction to apply established jurisdiction in a particular proceedings Executive jurisdiction  Jurisdiction to commit government actions / to enforce orders

67. Principles of jurisdiction Principles on international level – exact rules on national level Principles of jurisdiction describe connections that are more or less generally accepted  Rational connection between criminal act / offender and prosecuting state Territorial / extraterritorial jurisdiction

68. Principle of territoriality Jurisdiction of the state where the crime was committed For a long time was the only jurisdictional principle that was generally accepted, especially in common law countries Is still often the most rational place for prosecution (availability of evidence and wittnesses, knowlede of language and culture …) Where the act was committed? In the place where the act was committed and in the place where the result of the act came out

69. Flag principle Jurisdiction for crimes committed on a ship / air plane registered at the state  Rational basis: ships/air planes are moving from one place to another, crews/passangers have different nationalities… Earlier was sometimes considered to be a part of territorial principle (floating part of the state)  Nowadays is usually considered to be a jurisdictional principle of its own

70. Protective principle Jurisdiction for crimes committed against the state itself Need of the state to defend itself from crimes directed against its’ interests Internal / external safety of the states, other important interests of the states  Protection of the state f.ex. against spying, forgery of the currency, violations of customs legislation) Necessary because states don’t always defend interests of other states

71. Passive personality principle Jurisdiction over offences committed against nationals of the state Disputed principle: persons abroad are entitled to the protection of the territorial state Some states find it necessary to protect their nationals from serious crimes even abroad In most cases demand of double criminality  Should be a crime both in the prosecuting state and in the place where the crime was committed

72. Active personality principle Jurisdiction over offences committed by nationals of the prosecuting state (nationality principle) Traditionally accepted in continental Europe Originally: obedience of the nationals towards the legislation of the home state (right of the state to monitor its citizens) More liberal views after WWII – in most cases demand of double criminality Nowadays: international solidarity and practical considerations – restricted extradition of the nationals

73. Universality principle Jurisdiction regardless of the place where the crime was committed and regardless of the author’s / victim’s nationality Possibility to prosecute international crimes in any state  Restricted group of international crimes: crimes directed against universal, generally accepted and important values  Different interpretations which are this kind of crimes Origins in the regulation of piracy – enemies of the mankind

74. Principle of representation Jurisdiction on behalf of other state This principle isn’t recognized in all states Principle of representation / principle of universality Request from the state where the crime was committed Double criminality demanded

75. Competence conflicts Jurisdiction of the states has got wider Often several states have jurisdiction over same act  ”Positive competence conflicts” No binding rules concerning hierarchy  In practice proceedins usually in the state that has most interest and best practical possibilities to prosecute

76. II International Criminal Tribunals

77. International criminal tribunals Efforts after WWI  Treaty of Versailles: responsibility of individuals on the basis of international law  In practice no success Emperor of Germany was not extradited from Netherlands Few war criminals were prosecuted, many were found innocent, lenient punishment, some escaped during their punishment  New idea was created: basis for prosecutions after WWII

78. After WWII war tribunals in Nuremberg and Tokyo  Special circumstances: serious crimes, global disapproval, total capitulation of Germany, evidence available etc.  Courts of victors - not clearly ”international”  Partly retroactive criminal legislation  Important for the development of the international criminal law  Crimes against peace, war crimes, crimes against humanity

79. ICTY – www.un.org/ictywww.un.org/icty  International tribunal for the prosecution of persons responsible for serious violations or international humanitarian law committed in the territory of the former Yugoslavia since 1991 (ICTY) – UN security council 827 (1993) ICTR – www.ictr.orgwww.ictr.org  International criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states between 1 January 1994 and 31 December 1994 (ICTR) – UN security council 955 (1994)

80.  ICTY and ICTR were created by UN security council – was in that situation an efficient way to create an international court  Jurisdiction limited: certain crimes, certain place, certain time  ICTY: Grave breaches of Geneva conventions, violations of laws and customs of war, genocide, crimes against humanity  ICTR: genocide, crimes against humanity, violations of article 3 common to the Geneva conventions and of additional protocol II  Primary nature compared to national jurisdictions  Special courts also f.ex. in East Timor, Sierra Leone, Cambodia

81. International criminal court, ICC www.icc-cpi.int Created by an international treaty: Rome statute (1998, came into force 2002) Jurisdiction for the crimes committed after the statute came into force Jurisdiction over natural persons (18 years→) National jurisdiction of the state is primary  ICC when national courts are unwilling/unable to prosecute

82. Most serious crimes which are a concern of whole community of states  Genocide, Art. 6 As in the genocide convention  Crimes against humanity, Art. 7 Widespread or systematic attack against civilian population  Murder, extermination, enslavement, deportation, forcible transfer, imprisonment, torture, rape, sexual slavery, forced pregnancy, enforced sterilization, persecution, enforced disappearance, apartheid, other inhumane acts  War crimes, Art. 8 International conflicts:  Grave breaches of the Geneva Conventions, other serious violations of the laws and customs applicable in international armed conflict Armed conflict not of an international character:  Serious violations of article 3 common to the Geneva Conventions, other serious violations of the laws and customs applicable in armed conflicts not of an international character  In the future perhaps aggression

83. ICC definitions vs. definitions of crimes in national penal codes  ICC: No clear obligation to criminalize certain acts  Complementary nature: Jurisdiction if state is unwilling/unable to prosecute  States often want to formulate their criminal legislation as such that they are not regarded as unwilling/unable to prosecute  ICTR: The Prosecutor v. Michel Bagaragaza, ICTR-05- 86-AR11bis, Decision on rule 11bis appeal: A request to refer case of Michel Bagaragaza to the Kingdom of Norway was denied

84.  Referral of the cases to the ICC By security council – no state consent required By state party – state consent required, must specify relevant circumstances and include supporting documentation By ICC prosecutor – state consent required  State consent: Agreement of the state where committed or of the state whose national accused person is (ratification/ad hoc agreement)

85. Penalties  Imprisonment for a specified number of years Max. 30 years  Life imprisonment  Fine / forfeiture in addition to imprisonment Determination of the sentence  Gravity of the crime  Individual circumstances of the convicted person Enforcement of sentences  Imprisonment is served in a state designated by the Court

86. General obligation to co-operate, art. 86  ”States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and proscution of crimes within the jurisdiction of the Court.” Fex. Surrender of persons; arrest; provisional arrest; identification and whereabouts of persons; location of items; taking of evidence; questioning; service of documents; facilitating the voluntary appearance of persons; examination of places; execution of searches and seizures; provision of records and documents; protection of victims and witnesses; identification, tracing and freezing or seizure of proceeds, property and assets

87. Situations and cases: Situation in Democratic Republic of the Congo Case The Prosecutor v. Thomas Lubanga Dyilo Case The Prosecutor v. Bosco Ntaganda Case The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui Situation in Uganda Case The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen Situation in Central African Republic Case the Prosecutor v. Jean-Pierre Bemba Gombo Situation in Darfur, Sudan Case The Prosecutor v. Ahmad Muhammad Harun (”Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (”Ali Kushayb”)

88. Conclusions

89. International Criminal Law Definitions of crimes Criminal jurisdiction Extradition & cooperation in criminal matters International criminal tribunals

90. Developments More international treaties – more international offences Wider jurisdiction at the national level International tribunals  From ad hoc –solutions to permanent one (ICC) Regional and global development  More active role of the EU  Forms of co-operation created at the regional level are taken also to the global treaties New types of international co-operation & mutual assistance F.ex. gathering of the evidence, transfer of prisoners, recognition of foreign penal judgements, transfer of criminal proceedings, assets freeze and seizure

91. Problems / challenges International tribunals  Limited jurisdiction  Limited resources & practical possibilities  Lack of prevention? National jurisdiction  Selective  Unpredictable  Disputed

92. Aiming high… Rome Statute, preamble: ”…Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes…”