Introduction to Human Rights | Lesson 19: “International Criminal Law”


International criminal law is one branch of
international justice. It has expanded greatly since the end of the Cold War. Other branches
of international justice deal with: (a) the resolution of disputes between States, mostly
in charge of the International Court of Justice; and (b) petitions of individuals against States
for alleged violation of their human rights, which are decided by regional systems (including
regional courts) established in Europe, the Americas and Africa. Criminal law is the branch of law which deals
with offences so egregious that society has decided to apply the organized force of the
State to suppress them. It is, therefore, a last “ratio” meaning a measure of last
resort. Criminal law possesses a substantial dimension which has to do with the value that
has been violated by the offence. Criminal law also has a procedural dimension. It refers
to the due process of law through which criminal liability is established or dismissed. There
is also a third dimension in criminal law, which relates to the execution of the penalty,
commonly known as penitentiary law. Since the seventeenth century, piracy has
been considered a universal crime, that is, an offence punishable by any State, wherever
the pirate may be found, and however distant the place of the crime might have been. The importance of freedom of navigation and commerce in an increasingly capitalist world demanded
such a harsh legal approach when dealing with pirates. In the aftermath of First World War, an attempt
was made by the victors to prosecute Kaiser William II, for crimes committed “against
international morality and the sanctity of treaties”, but to no avail, since the Kaiser
was granted political asylum in the Netherlands. National courts are competent to try crimes
committed in their territory. They are also competent to try other crimes if their domestic
law gives them that power. In recent decades, several international treaties have granted
the States which are party to them extended bases for national criminal jurisdiction. For example, States may seek to prosecute certain crimes even if they were not committed
in their territory, provided that the alleged perpetrator is a national of that State (according
to the principle of active personality) or that the victim is so (according to the principle
of principle of passive personality). National courts are also competent to try
crimes other than those based on such principles, in conformity with the “universal jurisdiction”
principle. Universal jurisdiction, originally reserved for piracy, can be invoked nowadays
by national courts to prosecute war crimes committed anywhere by anyone, national or
foreigner. In the early 2000s some hybrid criminal courts
were created, meaning that these courts have a national as well as an international component.
For instance, the special courts for East Timor (in 2000), in Cambodia (in 2001) and
in Sierra Leone (in 2002). There are two kinds of international criminal
jurisdiction: ad-hoc tribunals, created to try crimes committed in certain countries
in times of war or civil strife; and permanent international criminal courts. It was only after the Second World War when
the first ad-hoc international criminal courts were established: the Nuremberg and Tokyo
Tribunals, on 1945 and 1946 respectively. These courts would prosecute the major German
and Japanese criminals responsible for war crimes, crimes against humanity and crimes
against peace. Just as free trade was humankind’s most important common interest in the seventeenth
century, the respect for human dignity and human rights became a cornerstone concern
for the international community after the atrocities committed during the Second World
War. During the Cold War, the momentum towards
international criminal justice came to a halt. After the end of the Cold War, two main ad-hoc
courts were created by the U.N. Security Council to address the humanitarian catastrophes occurred in the former Yugoslavia, in 1993, and in Rwanda, in 1994. In 1998, the State parties to the Rome Statute
created the International Criminal Court, the first permanent jurisdictional body in
charge of prosecuting crimes under international law. There are currently (at the beginning
of 2014) 122 States parties to the Rome Statute and the Court. Yet, they do not include the
United States, China and Russia. The Court comprises the Presidency; a Judicial Division, including a Pre-Trial, Trial and Appeals chambers; the Office of the Prosecutor;
and the Registry. As mentioned, the International Criminal Court
is the first permanent international criminal tribunal. According to its charter, called the Rome Statute, the Court is competent to try four basic international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. These crimes are not
subject to any statute of limitations, that is, they can be prosecuted no matter how long
ago they were committed. Arguably, amnesties or pardons are not possible for these crimes
either. A case may be filed before the International
Criminal Court by three main actors: a State (party or not to the Rome Statute); the Prosecutor
of the Court; and the UN Security Council. The ability of the Prosecutor to initiate
proprio motu an investigation is supervised by the Court’s Pre-Trial Division. The crimes must have been committed by natural
persons, after July 1, 2002, within the territory of a State member or by a national of that
State member; or in the territory of a State that has accepted the jurisdiction of the
Court or by a national of such State; or in any other State of the world, provided that
the UN Security Council refers the situation to the Court. The jurisdiction of the Court is only activated
if the State competent to try the offence is unable or unwilling to conduct a serious
and effective due process of law. This is known as the “principle of complementarity”. This principle is key to understand the importance and nature of the Court in the international
community of States, because it defers, initially, to State sovereignty, and only after such
sovereignty has proven to be misused by the State, the Court intervenes, thus securing
the independence of States as well as encouraging better criminal prosecution within them. The Court is currently prosecuting cases in
8 States, including Uganda, the Democratic Republic of Congo, the Central African Republic,
Mali, Sudan, Libya, Ivory Coast, and Kenya. Although all of these States are African,
the Court is also monitoring situations in Afghanistan, Georgia, Colombia, Honduras and
South Korea. In 2012, the Court issued its first two rulings,
one condemning Thomas Lubanga to 14 years of imprisonment for war crimes in the Democratic
Republic of the Congo; and the other one acquitting Mathieu Ngudjolo for alleged war crimes and
crimes against humanity in the Democratic Republic of the Congo. Some may think that
these two rulings reflect a poor cost-benefit ratio after ten years of functioning of the
Court. But others appraise the existence of the Court from a principles perspective. According to the Rome Statute, the crime of
genocide consists in acts committed with the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such. These acts include the killing of
members of a group, seriously harming them, inflicting conditions to bring about its physical
destruction, preventing births within it or forcibly transferring children from it to
another group. These crimes, are crimes committed as part
of a widespread or systematic attack against any civilian population, with knowledge of
such attack, including murder, extermination, imprisonment, enslavement, torture, rape,
persecution, enforced disappearances and the crime of Apartheid. These crimes are grave breaches of the Geneva
Conventions of 1949 and customary international humanitarian law, committed during international
as well as during non-international armed conflicts. Finally, the crime of aggression, recently
defined in 2010, means the planning, preparation, initiation or execution, by a person able
to direct the military or political action of a State, of an act of aggression that constitutes
a manifest violation of the UN Charter. Please visit www.moocchile.com and watch our
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