International Law: Unit 12 International Criminal Tribunals Prof. Fred Morrison Fall 2005

International Criminal Tribunals2 War Crimes Trials Many situations State tries its own military personnel State tries its own civilian contractors State tries enemy POWs State tries enemy civilians State tries enemies, unclassified type Trial before foreign courts International tribunals

Fall 2005International Criminal Tribunals3 History of war crimes trials Some history pre-1900 Older precedents Andersonville World War I Treaty of Versailles—projected trial of the Kaiser Leipzig trials

Fall 2005International Criminal Tribunals4 History of war crimes trials World War II Nuremberg trials London Charter Additional allied trials Tokyo trials Subsequent trials U.S. trial of Lieut. Calley

Fall 2005International Criminal Tribunals5 The past two decades Increasing demand for accountability The Yugoslav conflict Creation of the Yugoslav Tribunal by the Security Council Rwanda Creation of the Rwandan Tribunal by the Security Council Tying of prosecution and appeals to the Yugoslav Tribunal

Fall 2005International Criminal Tribunals6 The past two decades Sierra Leone Creation of an independent Tribunal, with the approval (but not participation) of the UN

Fall 2005International Criminal Tribunals7 The movement for an International Criminal Court At least 50 years old Stalled because of Cold War Opposed by the U.S. With breakdown of Cold War and problems in Yugoslavia Increased pressure, particularly in Europe, for an international tribunal

Fall 2005International Criminal Tribunals8 The Rome Conference Established a permanent International Criminal Court

Fall 2005International Criminal Tribunals9 Types of tribunals International Special purpose International Criminal Court Domestic Civil courts Courts-martial Military commissions Foreign courts

Fall 2005International Criminal Tribunals10 Special International Tribunals The Yugoslav and Rwandan Tribunals Constituting law Security Council created under Chapter VII of the United Nations Charter Necessary finding: There was a breach of the peace, threat to the peace, or act of aggression (art. 39, UN Charter) Necessary vote: Security Council had to approve (possibility of veto by one of P5)

Fall 2005International Criminal Tribunals11 Yugoslav Tribunal Constitution of Tribunal Consists of 16 judges and additional ad litem judges, divided into Pre-trial chambers Trial chambers Appeal chamber Prosecutor and Deputy Prosecutor

Fall 2005International Criminal Tribunals12 Rwandan Tribunal Semi-separate from Yugoslav tribunal Same prosecutor; same appeals chamber Different trial chambers

Fall 2005International Criminal Tribunals13 Jurisdictional scope of the two tribunals Defined in Security Council resolution Limited to specified crimes (grave breaches of laws of war, crimes against humanity) Limited to specified territory Limited to acts after specified date

Fall 2005International Criminal Tribunals14 Procedures and practices of the two tribunals Prosecutor investigates and brings charges to Pre-Trial Chamber Pre-Trial Chamber decides whether to issue warrant Trial Chamber (3 judges) conducts trial Appeal chamber (5 judges) hears appeals Scope of appeal is broader than in US law

Fall 2005International Criminal Tribunals15 Two UN Tribunals: Issues and Problems Narrow scope of jurisdiction Limited cooperation Delay “The Jail is full” “The budget is empty” Pressure to bring tribunals to conclusion

Fall 2005International Criminal Tribunals16 International Criminal Court Rome Conference wrote Statute, 1998 Ratified by 60 states by 2002 Went into effect July 1, 2002

Fall 2005International Criminal Tribunals17 ICC: Constitution of the Court 21 judges, elected by Assembly of States Parties some experts in criminal law some experts in human rights and humanitarian law No two to be citizens of same State 7 elected each 3 years for 9 year term

Fall 2005International Criminal Tribunals18 ICC: Jurisdiction Time: Only after date of entry into force (arts.11, 12(3)) Place or Citizenship (a)rts. 12(2), 13: Place: On [extended] territory of a State party Citizenship: By citizen of State Party Referral: Reference by Security Council (art.12(2), 13(b))

Fall 2005International Criminal Tribunals19 ICC: Jurisdiction Initiation of prosecution Reference by State where acts appear to have occurred (art. 13(a)) Reference by Security Council (art. 13(b)) Initiation by Prosecutor Prosecutor may seek information Prosecutor may ask permission of Pre-Trial Chamber to initiate investigation

Fall 2005International Criminal Tribunals20 ICC and the Security Council Security Council may refer matters for investigation and trial It has already done so in the case of Darfur Security Council may stop investigations and prosecutions 12 month period; renewable It has already done so for peacekeeping

Fall 2005International Criminal Tribunals21 ICC: Admissibility (Complementarity) Complementarity (art 17(1)(a) and (b)). No ICC prosecution if: State is currently investingating or prosecution the matter State has investigated and determined no cause But this rules don’t apply if State is unwilling or unable to prosecute (art 17(2), 17(3)

Fall 2005International Criminal Tribunals22 ICC: Other Admissibility Case not of sufficient gravity (art.17(1)(d)) Word on the street: 6 prosecutions/war Double jeopardy (ne bis in idem) (arts.17(1)(c), 20(3))

Fall 2005International Criminal Tribunals23 ICC: Applicable Law Genocide Crimes against humanity War crimes And, eventually, aggression (art. 5)

Fall 2005International Criminal Tribunals24 ICC: Genocide Defined in same terms as Genocide Convention (art.6)

Fall 2005International Criminal Tribunals25 ICC: Crimes Against Humanity Preconditions: Part of a widespread or systematic attack Directed against any civilian population With knowledge of the attack (art.7)

Fall 2005International Criminal Tribunals26 ICC: Crimes Against Humanity Crimes, a long list (art.7), including Torture Defined as “intentional infliction of severe paid or suffering, whether physical or mental, upon a person in the custody or under the control of the accused,...” Other inhumane acts of a similar character intentionally causing great surrering or serious injury to body or to mental or physical health

Fall 2005International Criminal Tribunals27 ICC: War crimes War crimes, “in particular when committed as part of a large-scale commission of such crimes” “Grave breaches” of Geneva Conventions “Other serious violations of the laws and customs applicable in international armed conflict” List of 26 specific offenses (art. 8(b))

Fall 2005International Criminal Tribunals28 ICC: War Crimes (cont’d) In non-international conflict, violations of common article 3 (art.8(c)) And “Other serious violations of the laws and customs applicable” (art.8(e)) But not to the suppression of domestic disturbances (arts. 8(d) and 8(f))

Fall 2005International Criminal Tribunals29 ICC: Aggression ICC is to have jurisdiction over the crime of aggression (art. 5) But not until a definition and other limitations are adopted by the Assembly of States parties (arts., 121, 123) To be consistent with UN Charter

Fall 2005International Criminal Tribunals30 ICC: Elements of Crimes and Rules of Evidence ICC Assembly will adopt rules governing the elements of the crimes and the rules of evidence It will also adopt the definition of aggression and limitations on its prosecution

Fall 2005International Criminal Tribunals31 International Criminal Court: Problems and Issues U.S. opposition to the Court Concern about use of force issues Definition of Aggression problem These problems affect major decision-makers Concerns about relation to Security Council Concerns about definition of crimes Vagueness; “other similar acts” Concerns about procedures

Fall 2005International Criminal Tribunals32 International Criminal Court: Pending “Situations” Democratic Republic of Congo Referred by its government; investigation underway Uganda Referred by its government; investigation underway Darfur (Sudan) Referred by the Security Council; investigation underway Central African Republic Referred by its government; not yet approved by pre-trial chamber