INTERNATIONAL CRIMINAL LAW By M IAN A LI H AIDER L.L.B., L.L.M. ( CUM LAUDE) U.K.

1. INTERNATIONAL CRIMINAL LAW By MIAN ALI HAIDER L.L.B., L.L.M. (CUM LAUDE) U.K.

2. SESSION TRAIL • INTRODUCTION • SOURCES OF INTERNATIONAL CRIMINAL LAW • APPLICATION OF SOURCES • HOW IT WORKS • INTERNATIONAL CRIMINAL OFFENCES • THE CONCEPTS OF GENERAL PRINCIPLES • NUREMBERG WAR CRIME TRAILS • TOKYO TRIALS

3. The New World Order “…to establish a new world order wherein the rule of law rather than the law of the jungle will govern the conduct between nations…” --Republican President George Bush, after launching the war against Iraq

4. The New World Order • “To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice.” • --Republican Senator Alfonse D’Amato • (New York)

5. PUBLIC INTERNATIONAL LAW • In general, public international law governs the actions of states, • How states interact with each other and individual citizens, • Public international law involves rules and principles that deal with the conduct, rights and obligations of states and international organisations, as well as dealing with relations among states

6. INTERNATIONAL CRIMINAL LAW • International criminal law is a subset of public international law. • While international law typically concerns inter-state relations, international criminal law concerns individuals. • In particular, international criminal law places responsibility on individual persons—not states or organisations—and proscribes and punishes acts that are defined as crimes by international law.

7. INTERNATIONAL CRIMINAL LAW • International criminal law is a relatively new body of law, and aspects of it are neither uniform nor universal. • For example, some aspects of the law of the ICTY are unique to that jurisdiction, do not reflect customary international law and also differ from the law of the ICC. • Although there are various interpretations of the categories of international crimes, this lecture will deal with crimes falling within the jurisdiction of international and hybrid courts, including the ICTY, ICTR, SCSL, ECCC, and the ICC.

8. INTERNATIONAL CRIMINAL LAW • These crimes comprise Genocide, Crimes Against Humanity, War Crimes and the Crime Of Aggression. • They do not include piracy, terrorism, slavery, drug trafficking, or other international crimes. • International criminal law also includes laws, procedures and principles relating to modes of liability, defences, evidence, court procedure, sentencing, victim participation, witness protection, mutual legal assistance and cooperation issues

9. SOURCES OF ICL • As international criminal law is a subset of public international law, the sources of ICL are largely the same as those of public international law. The five sources of ICL used by international and hybrid criminal courts generally are 1) treaty law; 2) customary international law (custom, customary law); 3) general principles of law; 4) judicial decisions (subsidiary source); and 5) learned writings (subsidiary source).

10. SOURCES OF ICL • The sources of law can sometimes overlap and have a dynamic relationship. • For example, a treaty can reflect, become or influence the development of customary international law and vice versa. • A judgement of an international court may influence the development of treaty and customary international law. • Generally, international and hybrid courts use treaties and custom as the main sources of international criminal law, in addition to their own governing instruments (which may include treaties).

11. SOURCES OF ICL The five sources of ICL roughly correlate with the classic expression of the sources of international law contained in Article 38(1) of the Statute of the International Court of Justice (ICJ): a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

12. APPLICATION OF SOURCES • The relevance and importance of these sources in national criminal jurisdictions differ between countries. • For example, in some jurisdictions, the direct source of international criminal law is national legislation incorporating ICL. • In this instance, treaty and customary international law cannot be used as a direct source. • Conversely, some courts can apply treaty law but not customary international law, while in others, custom can be applied as well. • Moreover, even if national legislation is the direct source of the applicable law, international criminal law treaties, commentaries on them and international judicial decisions are often used as aids to interpret the national law and are sometimes considered persuasive (not binding) precedent.

13. APLICABLE SENARIOS • National courts may not find it necessary to refer directly to international law sources when the content and meaning of the applicable national laws (including incorporated or otherwise applicable international law) are unambiguous. • National legislation and judicial decisions can be evidence of customary international law—but they are not directly applied by international courts. Indeed, the ICTY Appeals Chamber has held that “domestic judicial views or approaches should be handled with the greatest caution at the international level, lest one should fail to make due allowance for the unique characteristics of international criminal proceedings”. • At the ICC, the Rome Statute, Elements of Crimes, and Rules of Procedure and Evidence provide the primary sources of law. Treaties and principles and rules of international law are applied once the primary sources have been utilised, and finally, general principles of law, including relevant and appropriate national laws are considered.

14. TREATY LAW as a SOURCE ICL has many treaty sources. These range from obvious examples such as the Genocide Convention and the grave breaches provisions of the four 1949 Geneva Conventions to relevant human rights treaties and treaties that are not as widely ratified as the Geneva Conventions, including the: • Rome Statute of the International Criminal Court; • 1977 Additional Protocol II to the Geneva Conventions (AP II); • Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights); • Pact on Security, Stability and Development in the Great Lakes Region (2006) and its Protocol on the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination (Great Lakes Pact and Protocol); and • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

15. Foundations of International Criminal Law • Nuremberg Principles • Genocide • War Crimes children, • Crimes against Humanity [extended to violence against women and children, including internal violence] • Security Council ad hoc Courts [Violate Article 2] • ICC Statute[by treaty in the absence of a legislature] • Add Aggression [ > 7 years after definition.]

16. A New World Order • UN Charter Reform Route Closed by Article 108 • General Assembly Resolution Treaty Route • Rome International ICC Statute Treaty Conference • International ICC Statute Treaty: Friday 17 July 1998 [Approved: 120, 7, 21, with the U.S. administration leading the opposition of Israel, Iraq, Libya, Mexico...] • Treaty Revision Conference in Seven Years • Define Aggression • Extend Jurisdiction?

17. International Criminal Court Authorization Article 95 “Nothing in the present [UN] Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.”

18. ICC treaty Plenary Session

19. ICC Signatory Conference

20. International Criminal Court “There can be no global justice unless the worst of crimes--crimes against humanity--are subject to the law. In this age more than ever we recognize that the crime of genocide against one people truly is an assault on us all--a crime against humanity. The establishment of an International Criminal Court will ensure that humanity’s response will be swift and will be just.” Kofi Annan

21. The UN and the ICC Article 2 “The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.”

22. Criminal Jurisdiction of the ICC Article 5 • (a) “The crime of genocide; • (b) “Crimes against humanity; • (c) “War crimes; • (d) “The crime of aggression” (once a provision is adopted...defining the crime).

23. Genocide Article 6 • (a) “Killing members of the group; • (b) “Causing serious bodily or mental harm to members of the group; • (c) “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; • (d) “Imposing measures intended to prevent births within the group; • (e) “Forcibly transferring children of the group to another group.”

24. Crimes against Humanity Article 7 • (a) “Murder; • (b) “Extermination; • (c) “Enslavement; • (d) “Deportation or forcible transfer of population; • (e) “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;“

25. Crimes against Humanity Article 7 • (f) “Torture;

26. Crimes against Humanity Article 7 • (f) “Torture; • (g) “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; • (h) “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;”

27. Crimes against Humanity Article 7 • (i) “Enforced disappearance of persons; • (j) “The crime of apartheid; • (k)” Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

28. Crimes against Humanity Article 7 (f) “’Forced pregnancy’ means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;”

29. War Crimes [Article 8] • (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: • (i) Willful killing; • (ii) Torture or inhuman treatment, including biological experiments; • (iii) Willfully causing great suffering, or serious injury to body or health; • (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; • (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; • (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; • (vii) Unlawful deportation or transfer or unlawful confinement; • (viii) Taking of hostages.

30. War Crimes [Article 8] (b) (viii) “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” [“ Ethnic Cleansing”, ]

31. War Crimes Article 8 “2(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:”[27 items, including conscription of children] [Legitimizes war by defining rules of engagement.] [Aggression will be illegal(and still undefined), but not war.]

32. War Crimes Article 8 2(c) “In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, …” [Erodes national sovereignty]

33. War Crimes Article 9 Elements of Crimes 1. “Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two­thirds majority of the members of the Assembly of States Parties.” [Legislation by the Assembly of States Parties. Circumvents the UN and its Security Council!]

34. Introduction: The Concept of General Principles • Part 3 of the Rome Statute sets out fundamental principles applicable for international crimes. • Previous tribunals such at the International Military Tribunals of Nuremberg and Tokyo and even the ICTY and ICTR do not contain anything similar. • Reasons why no previous attempt: • In the days of the International Military Tribunals, the concept of international criminal law was relatively new. The ICC Statute is the result of evolution in this field. • Previous tribunals were a spontaneous political creation. • Previous tribunals were established to deal with crimes that had already happened. They had a limited mandate both in terms of situation and time. • The ICC is a court for future crimes and more importantly is a permanent court.

35. INTRODUCTION: THE CONCEPT OF GENERAL PRINCIPLES • Part 3 is a major achievement. It represents an attempt to merge several criminal justice systems into one legal instrument. It attempts for the first time to codify concepts such as modes of criminal participation, the mental element required for crimes and the defences that are available. • Potential advantages: • Judges discretion to develop principles of criminal law will be limited • Provide a legal framework for the Court • Ensure Predictability – has an effect on rights of accused • Promote consistent jurisprudence and practise.

36. ARTICLE 21: APPLICABLE LAW • Article 21 is an important and exciting innovation. It creates its own regime of sources of law and ranks them: • (a)     Statute, Elements of Crimes and its Rules of Procedure and Evidence. • (b)     Applicable treaties and the principles and rules of international law including the established principles of the international law of armed conflict. • (c)     General principles of law derived from national laws of legal systems of the world including as appropriate the national laws of the States that would normally exercise jurisdiction over the crime. • Previous international criminal tribunals make no reference to the sources of law. • Previous international criminal tribunals have tended to turn to Article 38 of the International Court of Justice: • international treaties. • international custom. • general principles of law recognised by civilised nations.

37. Article 21: Applicable law • Article 21(1)(a): The Rome Statute, together with its Rules of Procedure and Evidence and Elements of Crimes, are the primary source or law. • Art 9 and Art 51 state that the Statue overrides the RPE and Elements in the case of conflict • Bashir: The Court can not look to other sources of law unless • lacuna in the Statute, Rules and Elements • lacuna can not be filled by interpreting the Statute in accordance with Article 31 and 32 of the Vienna Convention on the Law of Treaties • Article 21(1)(b): • Corresponds to Art 38 of the ICJ • Expressly refers to the international law of armed conflict - Perhaps an opportunity to recognise certain defences not included in the Statute (e.g. reprisals and military necessity).

38. Article 21: Applicable law • Article 21(1)(c) General principles of law derived from national laws … including as appropriate the national laws of the States that would normally exercise jurisdiction over the crime. • Hugely controversial. • Can the ICC apply the national law of the State where the crime was committed? • Concern: law might vary depending on place of crime/nationality of accused. • Special Court for Sierra Leone • Concerns are exaggerated • Judges will be extremely reluctant to adopt the national criminal laws of a particular country. • Lubanga • “general principles” = adopting a comparative approach to criminal law. • ICC will be reluctant to automatically import approaches taken by other ad hoc tribunals: “precedents of the ad hoc tribunals are in no way binding and that procedural rules and jurisprudence of the ad hoc tribunals are not automatically applicable without analysis”.

39. ARTICLES 22 TO 24: NULLUM CRIMEN • Articles 22 to 24 of the Rome Statute address the principle of legality: • Article 22 sets out the principle of nullum crimen sine lege = an individual may only be criminally responsible for conduct which was unambiguously criminal at the time of its commission. • Article 23 sets out the principle of nulla poena sine lege = an individual may only be punished in accordance with the law. • Article 24 sets out the principle of non-retroactivity = no individual shall be criminally responsible under the Statute for conduct prior to its entry into force (1 July 2002).

40. Articles 22 to 24: Nullum crimen • Articles 22 to 24 are a gigantic step forward in international criminal law: • Previously, the principle of legality was applied with a degree of flexibility: See France et al. v. Goering: • the maxim nullum crimen sine lege … is a general principle. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished”. • Reasons for the flexible approach: • There was no significant body of international criminal law to draw from. • Other tribunals were set up after the fact in order to deal with past crimes. Flexibility was needed to pursue moral justice. • The principle of legality has developed since the Second World War. See: • Art 11 of Universal Declaration of Human Rights • Art 15 of the ICCPR

41. Articles 22: Nullum crimen Superiority of the Rome Statute • Article 22: nullum crimen sine lege • In contrast to other ad hoc tribunals, the Rome Statute contains a very detailed list of crimes and combines the Statute with the Element of Crimes. • Prohibits the extension of crimes by analogy: See Bemba case = recklessness is excluded from Article 30 of the Statute. • However, the ban on analogy faces a difficulty with Article 7(1)(k) of the Statute which provides for the crime of “other inhumane acts of a similar character”. • Article 23: nulla poena sine lege • Part 7 of the Rome Statute provides for imprisonment of up to 30 years or life, fine and forfeiture. • Does the Rome Statute go far enough? • Current sentencing is heavily influenced by Judges personalities. • Sentencing should be consistent.

42. Article 26:Exclusion of jurisdiction over persons under eighteen • Article 26 “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime”.  • Some countries (such as Israel) argued that the age should be lower and should correspond to the age permitted for recruitment into the armed forces. • With the exception of the Special Court for Sierra Leone, no other international criminal tribunal has included a minimum age provision in its Statute. • This Issue has caused much moral debate.

43. Article 26:Exclusion of jurisdiction over persons under eighteen • Special Court for Sierra Leone • The minimum age for prosecution is 15. • The age of 15 was supported by former Secretary General Annan • With the exception of Amnesty International, several child rights groups and Unicef objected. • ICC • International criminal law enforcement is directed at those who bear the greatest responsibility for the core crimes. • It is unlikely that an accused would be under the age of 18. • Prosecutor is going to be very reluctant to indict a juvenile. • Prosecution of juveniles is complicated. • Juveniles have to be tried differently • Rehabilitative sentences need to be considered

44. ARTICLE 27: IRRELEVANCE OF OFFICIAL CAPACITY • 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2.         Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. 

45. Article 27: Irrelevance of official capacity • Art 27 – Contains two distinct concepts (official capacity and personal immunity). • Art 27(1) - doctrine of “official capacity”: State officials cannot be subjected to criminal responsibility for acts carried out in the name of the State. • Article 7 of the Charter of the International Military Tribunals provides: • “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment” • Articles 6(2) and 7(2) of the ICTR and ICTY respectively contain a similar provision: • “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” • ICTR has gone even further in holding that an accused’s official capacity may in fact be an aggravating factor. See Kambanda

46. Article 27:Irrelevance of official capacity • Art 27(2) - personal immunities under customary international law: “a reciprocal respect among states for their sovereignty and the right to protect officials representing foreign states abroad from possible abuses by the territorial state”. per Professor Gaeta. • No other international criminal tribunal has a similar provision in its Statute. • Democratic Republic of Congo vs Belgium (Arrest Warrant Case) • An incumbent or former Minister for Foreign Affairs may be not subject to criminal proceedings before a national court but may be subject to prosecution in international criminal courts. The Court relied on Article 27(2) in making its finding. • Special Court for Sierra Leone – Charles Taylor • The Court interpreted the Arrest Warrant case as consisting of an exception to personal immunity when international crimes are involved.

47. Article 27: Irrelevance of official capacity • ICC – Omar Al-Bashir • An arrest warrant was possible because: • The purpose of the ICC was to end impunity. • Article 27 was a core principle of the Rome Statute. • Chamber need only to apply the ICC Statute. • The Security Council accepted that the Court would exercise it authority in accordance with its Statute. • The reasoning has been criticised • Rome Statute is based on a treaty which requires consent. • State Parties to the ICC have waived their immunity. • Bashir decision fails to distinguish betweens the ICC’s powers to issue an arrest warrant and the duties of States to comply with it. • Art 27(2) does not apply to Non-State parties. Art 98(1) of the Rome Statute is evidence of this: • “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity …”

48. Article 27: Irrelevance of official capacity • Libya: Colonel Muammar Gaddafi • An arrest warrant was sought. • Libya is not a signatory to the Rome Statute • Several countries such as Turkey have offered him guarantees should he leave • Are these guarantees enforceable? Does it make a difference if the guarantor State is a signatory to the Rome Statute? • Adopting the current approach in Bashir –it is uncertain. • It is arguable that such a guarantee is possible, even if made by a State Party to the ICC.

49. Article 28:Responsibility of commanders and other superiors • Art 28(1): A military commander or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or effective authority and control where:  • (i)     That military commander or person either knew or should have known that the subordinates were committing or about to commit such crimes; and • (ii)    That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.  • Art 28(2): all other superiors - A superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, where:  • (i)    The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; • (ii)     The crimes concerned activities that were within the effective responsibility and control of the superior; and • (iii)    The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

50. Rome Statute Art 28 distinguishes between civilian and military superiors. Art 28 mental standard is the superior knew, should have known or consciously disregarded the fact that subordinates were about to or were committing crimes. Art 28 requires a causation element linking the superior’s failures to the crimes committed. Art 28 has no express provision requiring a superior to punish for offences already committed. Other Ad Hoc Tribunals The ad hoc tribunals make no such distinction. ICTY (Art 7(3)) and ICTR (Art 6(3)) - knew or had reason to know that the subordinate was about to commit such acts or had done so. The ad hoc tribunals have no such requirement. ICTY (Art 7(3)) and ICTR (Art 6(3)) - expressly state that liability may be imposed on a superior for failing to punish crimes already committed by subordinates. Article 28:Responsibility of commanders and other superiors