- International Criminal Law – Sommersemester 2017

1. - International Criminal Law –Sommersemester 2017 Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

2. Prof. Andreas Zimmermann, LL.M. (Harvard) University of Potsdam, Germany - member German delegation preparatory Commission and Rome conference • Member Permanent Court Arbitration • counsel in inter alia ICJ Bosnia v. Serbia (Genocide); Croatia v. Serbia (Genocide); Kosovo advisory opinion; Georgia v. Russia (CERD); Ukraine v. Russia (CERD; ICSFT); counsel Iran – US Claims Tribunal • judge ad hoc European Ct. Hum Rights

3. Part A Introduction Part A Introduction: Notion and relevance of international criminal law in the international legal system

4. Part A Introduction International criminal law as a cornerstone of modern international law - (traditional) international law as only regulating the relationship between States - human rights: individuals as bearers of individual rights under international law - international criminal law: individuals as bearer of obligations under international law and as being exposed to criminal sanctions under international law

5. Part A Introduction Functions of international criminal law retribution deterrence (individual and general) foster international (criminal) law combat threats to international peace and security

6. Part A Introduction ICTY (Trial Chamber) Prosecutor v. Kupreskic, 2000 “(…) in general, retribution and deterrence are the main purposes to be considered when imposing sentences in cases before the International Tribunal. (…) punishment for having violated international humanitarian law is, in light of the serious nature of the crimes committed, a relevant and important consideration. As to the latter, the purpose is to deter the specific accused as well as others (…). worldwide from committing crimes in similar circumstances against international humanitarian law (…) .

7. Part A Introduction ICTY (Trial Chamber) Prosecutor v. Kupreskic, 2000 “(...) another relevant sentencing purpose is to show the people (…) of the world (…) that there is no impunity for these types of crimes (…) in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust in and respect for the developing system of international criminal justice. The Trial Chamber also supports the purpose of rehabilitation for persons convicted (…)“

8. Part A Introduction Rome Statute International Criminal Court Preamble (excerpts) The States Parties to this Statute, Recognizing that such grave crimes threaten the peace, security and well-being of the world, (…) Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, (…)

9. Part A Introduction Rome Statute International Criminal Court Preamble (excerpts) Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court (…) with jurisdiction over the most serious crimes of concern to the international community as a whole, (…) Resolved to guarantee lasting respect for and the enforcement of international justice (…)

10. I. Historical development Part B Historical development of international criminal law 10

11. I. Historical development The Hague Convention respecting the Laws and Customs of War on Land (1907) Art. 3 A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 11

12. I. Historical development Treaty of Versailles Art. 227 The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.

13. I. Historical development Treaty of Versailles Art. 228 The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies. The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities.

14. I. Historical development Treaty of Versailles Art. 229 Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel.

15. I. Historical development The Leipzig War Crimes Trials • Law on Prosecution of War Crimes and Offenses • German Reichsgericht the responsible forum for prosecution of crimes committed by Germans during the war • Few results: Only 6 convictions • Only had an indirect impact on the development of international law, since the basis of the trials was German criminal law

16. I. Historical development [Treaty of Sèvres] Art. 320 The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914. The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognise such tribunal.

17. I. Historical development [Treaty of Sèvres] Art. 320 In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognise such tribunal. (...)

18. I. Historical development Work of the League of Nations • 1920: an Advisory Committee of Jurists considered the establishment of a Court of International Justice as premature • 1937: adoption of the Convention for the Prevention and Punishment of Terrorism • Annex of the Convention provided for the creation of an international criminal tribunal • Draft Convention of the United Nations War Crimes Commission mainly based on 1937 League of Nations treaty

19. I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, 1937; Annex, Convention for the Creation of an international criminal court Art. 1 An International Criminal Court for the trial, as hereinafter provided, of persons accused of an offence dealt with in the Convention for the Prevention and Punishment of Terrorism is hereby established.

20. I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, 1937; Annex, Convention for the Creation of an international criminal court Art. 2 1. In the cases referred to in Articles 2, 3, 9 and 10 of the Convention for the Prevention and Punishment of Terrorism, each Contracting Party to the present Convention shall be entitled, instead of prosecuting before his own courts, to commit the accused for trial to the Court.

21. I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, 1937; Annex, Convention for the Creation of an international criminal court Art. 2 2. A High Contracting Party shall further, in cases where he is able to grant extradition in accordance with Article 8 of the said Convention, be entitled to commit the accused for trial to the Court if the State demanding extradition is also a Party to the present Convention.

22. I. Historical development International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (...) The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;

23. I. Historical development International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (b) War Crimes: namely, violations of the laws or customs of war.  Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

24. I. Historical development International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population,before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.

25. I. Historical development Nuremberg International Military Tribunal and the Concept of Universal Jurisdiction IMT Nuremberg, Judgment of 1 October 1946 “The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.”

26. I. Historical development Nuremberg Principles Adopted by the International Law Commission in 1950 1. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. 2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. 3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

27. I. Historical development Nuremberg Principles Adopted by the International Law Commission in 1950 4. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. (...) 6. The crimes hereinafter set out are punishable as crimes under international law: a) Crimes against peace b) War crimes c) Crimes against humanity (...)

28. I. Historical development Genocide Convention 1948 Art. II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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.

29. I. Historical development Genocide Convention 1948 Art. VI Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction territory of which the act was committed.

30. I. Historical development Geneva Conventions 1949 Art. 130 GC III (respectively Art. 50 GC I, Art. 51 GC II, Art. 147 GC IV) Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

31. I. Historical development Geneva Conventions 1949 Common Art. 3 Sec. 1 GC In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

32. I. Historical development Geneva Conventions 1949 Common Art. 3 Sec. 1 GC (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

33. I. Historical development Geneva Conventions 1949 Common Art. 3 Sec. 1 GC (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

34. I. Historical development 1973 Convention against Apartheid Art. II For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

35. I. Historical development 1973 Convention against Apartheid Art. II (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) By murder of members of a racial group or groups; (ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;

36. I. Historical development 1973 Convention against Apartheid Art. II (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;

37. I. Historical development 1973 Convention against Apartheid Art. II (c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;

38. I. Historical development 1973 Convention against Apartheid Art. II d) Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof; (e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour; (f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.

39. I. Historical development 1973 Convention against Apartheid Art. V Persons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction.

40. I. Historical development Geneva Conventions 1977 Add.Prot. I and II • AP I interaliaextendedthelistof grave breaches, Arts. 11 (4) and 85 AP I in international armedconflicts • AP II extentedtheguaranteesofcommon Art. 3 GK i- IV in non-international armedconflicts

41. I. Historical development Threshold clauses AP II Art. 1 1. This Protocol (…) shall apply (…) which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 41

42. I. Historical development Threshold clauses AP II Art. 1 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 42

43. I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia (...) Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of "ethnic cleansing", including for the acquisition and the holding of territory, Determining that this situation continues to constitute a threat to international peace and security, (...)

44. I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, (...)

45. I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia Acting under Chapter VII of the Charter of the United Nations, (…) 2. Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace (…)”

46. I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia 4. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute;

47. I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY)

48. I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

49. I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;.

50. I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.