An Introduction To International Criminal Law A...
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.
An Introduction to International Criminal Law a...
Classical international law governs the relationships, rights, and responsibilities of states. After World War II, the Charter of the International Military Tribunal and the following Nuremberg trial revolutionized international law by applying its prohibitions directly to individuals, in this case the defeated leaders of Nazi Germany, thus inventing international criminal law. After being dormant for decades, international criminal law was revived in the 1990s to address the war crimes in the Yugoslav Wars and the Rwandan genocide, leading to the establishment of a permanent International Criminal Court in 2001.
International criminal law is best understood as an attempt by the international community to address the most grievous atrocities. It has not been an ideal instrument to make the fine and nuanced distinctions typical of national law, for these shift focus from those large scale atrocities that "shock the conscience" with which it is concerned. This creates significant differences of analysis between the legal systems, notably for the concept of legal intent.[1]
Some precedents in international criminal law can be found in the time before World War I. However, it was only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of the German Empire. In the event, however, the Kaiser was granted asylum in the Netherlands. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed by Nazi Germany and Imperial Japan. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (the International Military Tribunal for the Far East). It operated from 1946 to 1948.
International criminal law is a subset of international law. As such, its sources are those that comprise international law. The classical enumeration of those sources is in Article 38(1) of the 1946 Statute of the International Court of Justice and comprise: treaties, customary international law, general principles of law (and as a subsidiary measure judicial decisions and the most highly qualified juristic writings).[citation needed] The Rome Statute governing the International Criminal Court contains an analogous, though not identical, set of sources that the court may rely on.
Article 9, which was used to prosecute membership in the Schutzstaffel (SS), allows the criminalization of certain organizations (presumably state-supported) and prosecution for membership by allowing individuals to be prosecuted where evidence was otherwise insufficient. It also has some implications concerning asset seizures, reparations and other payments for damages caused by violations of international law, but does not impose criminal responsibility on organizations in their capacity as organizations. Under Article 9, the SS and several Nazi other organizations were criminalized, including the Leadership Corps of the Nazi Party.[5]
The Council of Europe,[50] the European Commission, the NATO Parliamentary Assembly and several governments, including the Government of Ukraine,[51][52] have called for the establishment of an international criminal tribunal to "investigate and prosecute the crime of aggression" committed by "the political and military leadership of the Russian Federation."[50] Under the Council of Europe's proposal, the tribunal should be located in Strasbourg, "apply the definition of the crime of aggression" established in customary international law and "have the power to issue international arrest warrants and not be limited by State immunity or the immunity of heads of State and government and other State officials."[50] In November 2022 the NATO Parliamentary Assembly designated the Russian Federation as a terrorist organization and called upon the international community to "to take collective action towards the establishment of an international tribunal to prosecute the crime of aggression committed by Russia with its war against Ukraine."[53][54] In November 2022 the European Commission said the EU will work to establish an ad hoc criminal tribunal to investigate and prosecute Russia's crime of aggression.[55][56][57][58][59][60]
International criminal law is a field of international law that seeks to regulate the behavior of states, organizations and individuals operating across national boundaries in commission of international crimes. International criminal law also regulates the commission of grave crimes occurring on the territory of sovereign states where those crimes constitute genocide, crimes against humanity, war crimes, or other violations of jus cogens norms.
International criminal law is practiced by, and prosecuted within, international criminal tribunals, such as the International Criminal Tribunal for Rwanda, International Criminal Court and similar courts.
See Gail Partin and Marylin J. Raisch, Features - International Criminal Law: A Selective Resource Guide (2000), available here (providing an excellent guide to online and print resources on international criminal law).
International criminal justice describes the response of the international community to mass atrocity. How we respond to war, to the rupture of society and to systematized murder and persecution is at the heart of the issue. Which forms of transitional justice we respond with, and how our goals are best achieved, are important questions. But international criminal justice is about more than responses. How do we learn from history or, sometimes, fail to do so? Can we use our understanding of human psychology to better respond to mass atrocity, or better, to prevent it or react to address it sooner? What of the sociological elements that are infused in our response to heinous international crimes; how do these affect our understanding and practice of international criminal justice? Key words: international; criminal; justice; community; atrocity
The role of the criminal justice system in countering terrorism is a challenging one. Indeed, the primary objective of counter-terrorism strategies must be to prevent terrorist incidents from taking place, and in some cases law enforcement agencies are able to prevent terrorist attacks from occurring. However, some existing criminal justice practices are less effective when it comes to preventing terrorist conspiracies from achieving their aim or a terrorist threat is too extensive for available resources to cope with. A forward-looking, preventive and well-funded criminal justice strategy against terrorist violence requires a comprehensive system of substantive offences, investigative powers and techniques, evidentiary rules and international cooperation. The goal is to proactively integrate substantive and procedural mechanisms to reduce the incidence and severity of terrorist violence, and to do so within the strict constraints and protections of the criminal justice system and the rule of law. There can be significant accompanying challenges, however, especially for less well-resourced States, to implement all the recommended measures for law enforcement and criminal justice systems together with the requisite levels of technical capacity.
Criminal justice systems have approached these challenges differently, depending on their legal tradition, their level of development, their relative institutional sophistication and their own cultural circumstances. In some instances, a perceived urgent need to respond to a specific threat has led States to improvise new criminal justice approaches, which risk contravening recognized international human rights instruments and normative standards. Furthermore, there is scope for strengthening the capacity and effectiveness of national legal and criminal justice systems in many States to cooperate at the international level with a variety of rule of law-based counter-terrorism initiatives. This has resulted in additional stress being placed on the already limited capacity of many criminal justice systems and has perhaps weakened or compromised their ability to function within basic rule of law and human rights principles.
As such, the criminal justice response to terrorism is therefore essentially framed by national law, which itself must comply with various aspects of international law. There are thus several components of international law that are directly relevant to the national criminal justice response to terrorism. In addition to treaty-based obligations stemming from their ratification of the universal legal instruments against terrorism and several legally binding obligations imposed through the relevant Security Council resolutions on counter-terrorism, States also have a number of legal obligations under other branches of international law, including international human rights, humanitarian, refugee and customary international law examined in Module 3. This includes the core international crimes considered below.
The consequences of the commission of an international crime extend to all the effects of the criminal conduct, such as the harm caused (e.g., injury to persons or damage to property). In the case of international terrorism, the conduct must have a transnational element to it, i.e., the conduct is not limited to the territory of one State with no foreign element or link (see further discussion on jurisdiction below). Each international instrument against terrorism articulates this requirement in a different manner. For example, article 13 of the International Convention against the Taking of Hostages 1979 states that: "This Convention shall not apply where the offence is committed within a single State, the hostage and the alleged offender are nationals of that State and the alleged offender is found in the territory of that State." Similarly, see article 4 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988. The requirement that a transnational element is present is consident with the objective of the instruments, to oblige States to investigate and prosecute crimes related to international acts of terrorism, and to facilitate related international cooperation. However, in practice, many States have established as criminal offences the acts required by the instruments, without express requirement for the transanational element provided in the instruments. 041b061a72