INTERNATIONAL CRIMINAL LAW - NOTION, MAIN FEATURES AND DEVELOPMENT

1. INTERNATIONAL CRIMINAL LAW- NOTION, MAIN FEATURES AND DEVELOPMENT Dr. Maja Munivrana Vajda, LL.M. 2013/2014

2. "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance." (Benjamin B. Ferencz, a former Nürnberg prosecutor)

3. "A person stands a better chance of being tried and judged for killing one human being than for killing 100,000." (José Ayala Lasso, former United Nations High Commissioner for Human Rights)

4. What is ICL? • Criminal law with transnational/international elements? • State cooperation in criminal law matters? • International origin of a criminal law norm? • International crimes? • Jurisdiction of international courts?

5. What is ICL? • “A body of international rules designed both to proscribe certain categories of conduct and to make those persons who engage in such conduct criminally liable. They either authorize states, or impose upon them the obligation, to prosecute and punish such criminal conducts. ICL also regulates international proceedings before international courts and tribunals, for prosecuting and trying persons accused of such crimes.”(Cassese, ICL, 2008) • “Supranational law applied by international communitydirectly through its courts; thus it is not decisive whether it has been transferred into national law.”(Novoselec, OD, 2009.) • “Criminal law of international community.” (Zahar/Sluiter, ICL, 2008)

6. “HYBRID” BRANCH OF LAW

7. INTERNATIONAL LAW • Development from international conventions and customs– prohibitions addressed to states (not individuals) state responsibility (not individual criminal responsibility) • Source of IL • Responsibility of states for internationally wrongful acts (duality of responsibility)

8. INTERNATIONAL HUMANITARIAN LAW

9. CRIMINAL LAW • Norms that describe the elements of international crimes prescribe sanctions for their perpetrators determine the general preconditionsofcriminalliability • SPECIAL PART + SOME PRINCIPLES SANCTIONS GENERAL PART OF CRIMINAL LAW

10. CRIMINAL PROCEDURE • organizationandconduct of internationalcourts (andprosecutor) • Fundamentalrights of suspects/defendants • Rules (internationalconventions, customarylaw) regulatinginternationallegalcooperation, extradition, immunities, transfer of criminal procedure, execution of punishment

11. HUMAN RIGHTS LAW • International human rights treaties (and the corresponding case-law): • General principles of CL (principle of legality, prohibition of torture, ect.) • Interpretative frame for certain criminal offences and modes of responsibility (freedom of speech v. direct and public incitement to genocide) • Right to fair trial and minimum defense rights

12. DEVELOPMENT OF INTERNATIONAL CRIMINAL JUDICIARY (in/directenforcementsystem) • (Sporadic national trials) • Art. 227. and 228. Versailles Peace Treaty, 1919. • International Military Tribunal in Nüremberg, London Charter, November 1945.-October 1946.) • International Military Tribunal in Tokyo, 1946-1948. • (trials according to Allied Control Council Law No. 10., December 20, 1945) • (national trials – no statute of limitation) • Ad hoc tribunals • Mixed tribunals • ICC

13. International Military Tribunal in Nüremberg (IMT) • Jurisdiction (art. 6): • Crime against peace (agression) • War crimes • Crimes against humanity • Individual criminal responsibilty and responsibility of organizations • Objections: victor’s justice, breach of principle of legality (retroactive punishment), procedure inadequate,…

14. Further activities aiming at development of ICL/ICC • Convention on the Suppression and Punishment of the Crime of Genocide, 1948. (art. 6) • Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950 (Nüremberg principles) • Work of International Law Commission (Draft Statute of the ICC, 1994. i Draft Code of Crimes against the Peace and Security of Mankind)

15. International ad hoc tribunals - ICTY - • Establishment: resolution of SC (Chapter VII. of the UN Charter) no. 808 (1993) and 827 (1993) • Jurisdiction: - temporal: from 1991. - territorial: territory of ex Yugoslavia • personal: individual criminal responsibility • subject-matter: grave breaches of the Geneva Conventions of 1949 (art. 2), violations of the laws or customs of war (art. 3), genocide (art. 4), crimes against humanity (art. 5) • Concurrent, but primacyof ICTY (art. 9) • www.icty.org

16. International ad hoc tribunals - ICTR - • Establishment: SC res. (Chapter VII. UN Charter) no. 955 (1994) • Jurisdiction: - temporal: from 1 January to 31 December 1994 - territorial: territory of Rwanda and neighboring states (crimes committed by Rwandan citizens) • personal: individual criminal responsibility • subject-matter: genocide (art. 2), crimes against humanity (art. 3), violations of art. 3. common to the Geneva Conventions and ofAdditional Protocol II (art. 4) • Concurrent, but primacy of ICTR (art. 8) • www.unictr.org

17. OBJECTIONS: • Legality and legitimacy of the tribunals • Retroactivity • Temporal jurisdiction v. basis of establishment • Selectivity • Rudimentary character and under-regulation • Costs (of justice)?

18. Permanent International Criminal Court (ICC) • Establishment: Rome Statute, 1998. (entered into force 1. July 2002.) • Jurisdiction: • temporal: pro futuro, after the entry into force of the RS (art. 11.) • territorial + personal: territory of the state party + perpetrators nationals of the state party + SC referral • subject-matter (art. 5): genocide, crimes against humanity, war crimes + aggression • Complementarity – art. 1.,17, 19, 20. • www.icc-cpi.int

19. The States Parties to the Rome Statute    Green - Parties Yellow - Signed but not ratified Red-  Neither signed nor acceded

20. OBJECTIONS • Most powerful/inhabited states are not parties to the RS • No “universal jurisdiction” • Weak enforcement powers • Organization and financing • “Court for Africa”

21. BRIEF COMPARATIVE OVERVIEW

22. APPLICATION OF ICL