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International Law: Unit 12 International Criminal
Tribunals
Prof. Fred MorrisonFall 2005
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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
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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
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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
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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
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The past two decades
Sierra Leone Creation of an independent Tribunal,
with the approval (but not participation) of the UN
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The movement for anInternational 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
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The Rome Conference
Established a permanent International Criminal Court
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Types of tribunals International
Special purpose International Criminal Court
Domestic Civil courts Courts-martial Military commissions
Foreign courts
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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)
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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
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Rwandan Tribunal
Semi-separate from Yugoslav tribunal Same prosecutor; same appeals
chamber Different trial chambers
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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
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Procedures and practicesof 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
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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
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International Criminal Court
Rome Conference wrote Statute, 1998
Ratified by 60 states by 2002 Went into effect July 1, 2002
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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
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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))
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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
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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
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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)
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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))
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ICC: Applicable Law
Genocide Crimes against humanity War crimes And, eventually, aggression (art. 5)
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ICC: Genocide
Defined in same terms as Genocide Convention (art.6)
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ICC: Crimes Against Humanity
Preconditions: Part of a widespread or systematic
attack Directed against any civilian
population With knowledge of the attack
(art.7)
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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
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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))
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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))
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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
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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
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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
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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