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International Law: Unit 12 International Criminal Tribunals

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

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International Law: Unit 12 International Criminal Tribunals

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

  2. 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 International Criminal Tribunals

  3. 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 International Criminal Tribunals

  4. 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 International Criminal Tribunals

  5. 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 International Criminal Tribunals

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

  7. The movement for anInternational 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 International Criminal Tribunals

  8. The Rome Conference • Established a permanent International Criminal Court International Criminal Tribunals

  9. Types of tribunals • International • Special purpose • International Criminal Court • Domestic • Civil courts • Courts-martial • Military commissions • Foreign courts International Criminal Tribunals

  10. 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) International Criminal Tribunals

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

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

  13. 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 International Criminal Tribunals

  14. Procedures and practicesof 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 International Criminal Tribunals

  15. 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 International Criminal Tribunals

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

  17. 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 International Criminal Tribunals

  18. 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)) International Criminal Tribunals

  19. 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 International Criminal Tribunals

  20. 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 International Criminal Tribunals

  21. 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) International Criminal Tribunals

  22. 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)) International Criminal Tribunals

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

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

  25. ICC: Crimes Against Humanity • Preconditions: • Part of a widespread or systematic attack • Directed against any civilian population • With knowledge of the attack (art.7) International Criminal Tribunals

  26. 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 International Criminal Tribunals

  27. 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)) International Criminal Tribunals

  28. 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)) International Criminal Tribunals

  29. 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 International Criminal Tribunals

  30. 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 International Criminal Tribunals

  31. 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 International Criminal Tribunals

  32. 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 International Criminal Tribunals

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