International Criminal Law (ICL) : Introduction

1. International Criminal Law (ICL):Introduction Prof. B. J. Geller, JD, PhD (Cantab.), LLD (ELTE, Budapest, Hungary)

2. Prologue • 1936 Francisco Franco becomes head of State in Spain • Frederico Garcia Lorca is killed • Arthur Koestler: Darkness at Noon • Jounod: Warrior Without a Weapon

3. „Wer sich vorstellt, daß das, was er liebt zerstört wird, der wird Unlust empfinden; stellt er sich aber vor, daß es erhalten wird, so wird er Lust empfinden.” • (Spinoza: Ethik, Neunzehnter Lehrsatz, 154)

4. Contents I. The Concept of ICL and its Place in the Legal System II. Sources of ICL III. Short History of ICL IV. International Courts V. Individuals and States as Subjects of ICL

5. I. The Concept of ICL and its Place in the Legal System • ICL part of Public International Law (PIL) • arguably subjects of PIL can only be States • if ICL is part of PIL: a) Can ICL prescribe rules for individuals, punish individuals (natural persons)? b) Can ICL punish States?

6. ICL is a “cousin” of International Humanitarian Law (IHL) The core part (core crimes) of ICL is concerned with sanctioning gross IHL violations ICL is a diplomatic mule (creating fathers: diplomats, international lawyers, criminal lawyers)

7. ICL in a wide and in a narrow sense ICL in a wide sense comprises of: a) ICL in a narrow sense ( the subject of my lectures) b) the Law of Co-operation in International Criminal Matters c) trans-national crimes

8. International Co-operation in Criminal Matters a) recognition of foreign judgments b) extradition c) transfer of criminal proceedings d) transfer of prisoners e) executing proceedings in an other State (deposing witnesses, seizing evidence etc.)

9. Transnational Crimes • drug trafficking • trafficking in humans • etc. If regulated by international treaty may become ICL

10. ICL in a narrow sense a) Substantive ICL b) International Criminal Procedure (does not really exist, comprises of procedural rules of the international tribunals and the basic International Human Rights (IHR) standards for criminal proceedings accepted by civilised nations)

11. Substantive ICL Comprises of acts which are so vital to the international community as a whole that the international community of civilised nations regards them as criminal and worthy of punishment. Approximately 300 sources of law enumerate more than 20 international crimes.

12. Some international crimes are jus cogens (compulsory international law, a State cannot opt out),some are not. • (a) aggression (crime against peace)) • b) genocide • c) crimes against humanity • d) war crimes • e) crimes against UN and associated personnel • f) theft and illegal trade in nuclear substances • g) mercenaries (part of war crimes ?) • h) apartheid (part of crimes against humanity?) • i) producing and stockpiling, trafficking in illegal weapons • j) torture • k) illegal experiments on humans • l) terrorism • m) slavery

13. If compulsory, is ICL supranational? Is it true?

14. No legislature Yes: UN General Assembly Resolutions (G.A.R.) are not binding No: - G.A.R. 177 (II) (1946) of 12 December 1946 recognising the Statute of the International Military Tribunal and its judgments created a precedent - Security Council Resolutions (S.C.R.) are binding (e.g. S.C.R. 827 (1993) ICTY; S.C.R. 955 (1994) ICTR)

15. No compulsory court system Yes: - USA can opt out of the International Criminal Court • Guantanamo Bay X-Ray Camp: no legal recourse for inmates (except No: Rome Statute of the International Criminal Court (RS) Art. 13 (b) S.C. refers the case to theProsecutor. No law enforcement: Yes, States need to co-operate.

16. There is a supranational character atleast as regards core crimes (a) aggression (crime against peace)); b) genocide; c) crimes against humanity; d) war crimes). Principles which follow: a) Obligatioergaomnes (binding obligation for everybody) b) Martens Clause c) Universality principle d) No immunity e) Autdedereautjudicare/punire

17. Obligatio erga omnes Barcelona Traction Company case (1970) (Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Judgement of 5th February 1970, ICJ Reports 1970, 3.) Belgian shareholders own company in Spain which is bankrupted by the Spanish government's actions. The ICJ makes a difference between duties towards another State and duties towards the international community as a whole.

18. Martens Clause - IV Hague Convention 1907, preamble (Reader, p. 7); - I Additional Protocol to the Geneva Conventions (1977), Art. 1. (2) (Reader, p. 76); - II. Additional Protocol to the Geneva Conventions (1977), Preamble (Reader, p. 110) (Russian journalist Fjodor Fjodorovich Martens (1845–1909) representative of the Tsar already in the II Hague Convention 1899)

19. Universality Principle (passive personality principle; Lotus case (PCIJ, 1927)) • Relative universality • Absolute universality Arial Sharon Congo v. Belgium (ICJ, 2000)

20. No Immunity Pinochet case a) Immunity ratione personae (blanket personal immunity for acting state representatives) b) Immunity ratione materiae (immunity for actions perfomed whilst in office but only ‘state acts’) ‘Act of state’ doctrine

21. Aut dedere aut judicare/punire Lockerbie case (1989-2000) State sponsored terrorism S.C.R. 731 (1992) S.C.R. 748 (1992) Montreal Convention on the Safety of Civil Aviation (1971) Art. 7. (not ius cogens)

22. II. Sources of International Law Substantive sources: agreement (consensus) of States (presumption that States are equal) Pacta sunt servanda (agreements have to be kept) Formal Sources: Statute of the International Court of Justice (ICJ) 38. cikk (1) - treaties, - customary law, - general principles of law recognised by civilised nations - decisions of international and national tribunals - teachings of the most outstanding legal writers (Ch: M. Bassiouni questions the teachings of legal writers as a valid source of ICL because this might violate the principle of legality; but see later crimes against humanity within non-international armed conflict)

23. ICC Article 21 • Applicable law • 1. The Court shall apply: • (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; • (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; • (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. • 2. The Court may apply principles and rules of law as interpreted in its previous decisions. • 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

24. III. History of ICL ICL’s two historical origins: 1) war 2) piracy 1474 first documented international criminal trial of Peter von Hagenbach - Hansiatic Cities 28 member court - terrorised civilians around Breisach - his defence: on the order of the Prince of Burgundy - not accepted, sentenced to death 1872 Gustave Moynier first formal proposal for an international criminal court

25. 1915 extermination of Armenians by the Turkish government (Are citizens protected from their own government?) 14 May 1915 Common declaration of French British and Russian governments 1920 Treaty of Sevres 1919 Treaty of Versailles Art. 227. (II William) Art. 228-230 (individual criminal responsibility) Art. 304 (b) (Mixed Tribunals) League of Nations 1926 AIDP Turkish massacre of Kurds in the district of Dersim in 1937-1938

26. Nuremberg 1941: Roosevelt and Churchill declaration 1942: Soviet Union 13 January 1942: 9 States issue St. James Palace Declaration Commission for the Investigation of War Crimes United Nation’s War Crimes Commission (UNWCC)) London Agreement of 8 August 1945: Statute of the International Military Tribunal 12 December 1946: UN G.A.R. 177 (II) (1946).

27. Art. 6 a)-c) crimes against peace war crimes crimes against humanity Problems or achievements: not international retroactive (ex post facto), violation of nullumcrimen/nullapoena principle introduction of individual liability

28. VernonFreemen, az USA katonai főügyész hivatalának kiemelkedő jogásza egy feljegyzést írt a következő címmel:

29. „Háborús bűncselekmény e a jelen háború tervezése és megindítása?”. Freeman ezt a kérdést nemlegesen válaszolta meg, a ma már ismerős érvelés alapján, miszerint a nemzetközi jog nem követeli meg, hogy valamely egyezmény megsértőjét büntetőjogilag felelősségre vonják, kivéve, ha az adott szerződés büntetőszankciók alkalmazását írja elő megsértőivel szemben. (Compare with BVerfGE 95, 96 (140) and Eur. Court H. R., Streletz, Kessler and Krenz v. Germany judgment of 22 March 2001)

31. Two other levels of courts: • Allied Control Council Law No. 10 (1945) • German courts 19 January 1946: International Military Tribunal for the Far East (IMTFE) Proclamation by General MacArthur as Supreme Commander for the Allied Powers Bridge over the River Kwai (Guizo Mori) G. Faludy: My Happy Days in Hell

32. Some Other Cases • Nicaragua v. USA (ICJ,1986) (G.A.R. 3314 (XXIX) 14 December 1974) • Finta v. Canada (1994) • Advisory Opinion of he ICJ on Nuclear Weapons (1996) • Lockerbie (1989-2000) • Pinochet (1998-1999) • Genocide Convention 1948 (Prof. Lemkin) (Reader, p. 125)

34. The Core Crimes • (Crimes against peace (aggression)) • War crimes • Crimes against humanity • Genocide • (Terrorism • Torture)

35. (Crimes against peace (aggression))

36. The 1945 Charter of the International Military Tribunal at Nuremberg defined war crimes as "violations of the laws or customs of war," including murder, ill-treatment, or deportation of civilians in occupied territory; murder or ill-treatment of prisoners of war; killing of hostages; plunder of public or private property; wanton destruction of municipalities; and devastation not militarily necessary.

37. Crimes against humanity • After World War I, the Allies, in connection with the Treaty of Versailles, established in 1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as the applicable law. • In addition to war crimes committed by the Germans, the commission also found that Turkish officials committed “crimes against the laws of humanity” for killing Armenian nationals and residents during the period of the war.

38. IMT StatuteArticle 6(c): “Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, 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 the domestic law of the country where perpetrated.”

39. Genocide • the conception of Polish scholar Raphael Lemkin, who first proposed at an international conference in 1933 that a treaty be created to make attacks on national, religious, and ethnic groups an international crime. • Lemkin, who served in the U.S. War Department, fashioned the term genocide from the Greek word genos, meaning race or tribe, and the Latin term for killing, cide.

40. Although Lemkin’s conception included the physical extermination of targeted groups, this was, in his view, only the most extreme technique of genocide. • In his 1944 book, Axis Rule in Occupied Europe, Lemkin proposed that genocide should be understood as signifying “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. • 1948 Convention on the Prevention and Punishment of the Crime of Genocide :

41. “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.” • conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

42. It was not until September 2, 1998—a half-century after the United Nations General Assembly adopted the Genocide Convention — that the first verdict interpreting the convention was rendered by an international tribunal. On that day the Rwanda Tribunal found Jean-Paul Akayesu guilty on nine counts for his role in the 1994 Rwandan genocide.

43. In its verdict in the Akayesu case, the Rwanda Tribunal found that the systematic rape of Tutsi women in Taba Province constituted the genocidal act of “causing serious bodily or mental harm to members of the [targeted] group.”

44. Recent case law has also helped clarify when genocidal intent can be established by virtue of a perpetrator’s intent to destroy a protected group “in part.” • This requirement is satisfied, in the words of the ICTY Appeals Chamber, “where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.”

45. Applying this standard in the case of RadislavKrstic, who commanded the Bosnian Serb Drina Corps during the infamous Srebrenica massacre of July 1995, an ICTY trial chamber concluded that the intent to destroy the Bosnian Muslims of Srebrenica by killing their men constituted the intent to destroy a substantial part of a national group protected by the Genocide Convention, “the Bosnian Muslims.”

46. The trial chamber reasoned, in part, that “Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group[; they] had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society.” Krstic was convicted of genocide, though the Court’s Appeals Chamber later reduced this to a conviction for aiding and abetting genocide.

47. By early 2006, the Rwanda war crimes tribunal had convicted 24 defendants of genocide or genocide-related charges. By contrast, a small proportion of those indicted by the Yugoslavia tribunal has been convicted of genocide-related offences.

48. In view of the magnitude of the carnage there—some 1.5 million out of Cambodia’s 7 million citizens are believed to have died as a result of Khmer Rouge policies—there has been a keen desire to affix the term “genocide” to their crimes. Since, however, both the perpetrators and the majority of victims were Khmer, reaching this conclusion has required agile legal reasoning. Some scholars have invoked the concept of auto-genocide, arguing that it is possible to satisfy the 1948 convention’s definition even when the perpetrators sought to kill a substantial portion of their own ethnic/national group.

49. IV. International Courts • 1) ICTY • 2) ICTR • 3) Special Court for Sierra Leone • 4) Iraqi Special Tribunal • 5) Extraordinary Chambers Cambodia • 6) Secial Panels for Serious Crimes inEast Timor • 7) UNMIK (Kosovo) (Geiss – Bulinckx: International and internationlized criminal tribunals a synopsis (88 ICRC Rev. No. 861 (2006) 49)

50. Special Court for Sierra Leone - 2002 agreement between UN and SL - IHL and national law - life imprisonment • Iraqi Special Tribunal - 2003 Statute by Iraqi Gov. - ICL, IHL, Iraqi law - Death penalty (illegal ?, Prof. Bohlander: ZStW (2005), 677)