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

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 2005 International Criminal Tribunals 2

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 2005 International Criminal Tribunals 3

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 2005 International Criminal Tribunals 4

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 2005 International Criminal Tribunals 5

The past two decades  Sierra Leone  Creation of an independent Tribunal, with the approval (but not participation) of the UN Fall 2005 International Criminal Tribunals 6

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 2005 International Criminal Tribunals 7

The Rome Conference  Established a permanent International Criminal Court Fall 2005 International Criminal Tribunals 8

Types of tribunals    International  Special purpose  International Criminal Court Domestic    Civil courts Courts-martial Military commissions Foreign courts Fall 2005 International Criminal Tribunals 9

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 2005 International Criminal Tribunals 10

Yugoslav Tribunal  Constitution of Tribunal  Consists of 16 judges and additional litem judges, divided into ad  Pre-trial chambers   Trial chambers Appeal chamber  Prosecutor and Deputy Prosecutor Fall 2005 International Criminal Tribunals 11

Rwandan Tribunal  Semi-separate from Yugoslav tribunal   Same prosecutor; same appeals chamber Different trial chambers Fall 2005 International Criminal Tribunals 12

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 2005 International Criminal Tribunals 13

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 2005 International Criminal Tribunals 14

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 2005 International Criminal Tribunals 15

International Criminal Court    Rome Conference wrote Statute, 1998 Ratified by 60 states by 2002 Went into effect July 1, 2002 Fall 2005 International Criminal Tribunals 16

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 2005 International Criminal Tribunals 17

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 2005 International Criminal Tribunals 18

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 2005 International Criminal Tribunals 19

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 2005 International Criminal Tribunals 20

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 2005 International Criminal Tribunals 21

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 2005 International Criminal Tribunals 22

ICC: Applicable Law     Genocide Crimes against humanity War crimes And, eventually, aggression (art. 5) Fall 2005 International Criminal Tribunals 23

ICC: Genocide  Defined in same terms as Genocide Convention (art.6) Fall 2005 International Criminal Tribunals 24

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 2005 International Criminal Tribunals 25

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 2005 International Criminal Tribunals 26

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 2005 International Criminal Tribunals 27

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 2005 International Criminal Tribunals 28

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 2005 International Criminal Tribunals 29

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 2005 International Criminal Tribunals 30

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 2005 International Criminal Tribunals 31

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 Fall 2005 International Criminal Tribunals 32