ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Criminal procedure

The repression of war crimes, crimes against humanity, and genocide, whatever the nationality of the offender and the place where they are committed, is crucial to ensuring respect for international law and to the interests of justice. The chief responsibility for this repression lies with States. The substantive and procedural criminal law and the judicial system of each State must enable it to prosecute and bring to trial persons allegedly responsible for these crimes. States must also be able to offer the assistance required from them when procedures to that end are undertaken abroad or by an international jurisdiction. International law, especially in view of the very nature of these crimes, lays down certain conditions that prosecution and sentencing by national courts must meet. To the extent that these are respected, States are free to decide their own rules in this matter.

Prosecution of war crimes: a and crimes against humanity may gathered and the probability of classic criminal procedure for be committed by members of armed obtaining a conviction. specific crimes forces or by civilians, however the commission of these crimes are not When the defendant is a member of In State practice there is generally limited to instances of armed the armed forces, it must be decided no procedure relating specifically to conflict. Authorities desiring to whether military or ordinary law is the repression of offences under prosecute a person allegedly applicable and by what court he will international law. The prosecution responsible for any of the be tried. and sentencing of these offences abovementioned crimes must give generally follow the usual procedure prior consideration to a certain All defendants must benefit from in the courts of jurisdiction, whether number of questions. procedural safeguards, known as they be military or ordinary. judicial guarantees, aimed at However, the nature of the crimes to First, it must be determined whether ensuring that the accused due be prosecuted and the specific the alleged act constitutes a criminal process rights are respected. These characteristics of the system of offence under the national criminal guarantees are considered a repression provided for must be law, and whether the national courts minimum protection that does not taken into account, with regard to: are competent to hear such cases. prevent a more favourable treatment The question of competent from being granted.1 · initiating prosecution; jurisdiction is particularly important · choice of competent court; for crimes committed outside the The independence and impartiality · taking / evaluation of evidence; national territory, especially serious of the body charged with · judicial guarantees; violations of international implementing public action are of · cooperation and international humanitarian law, such as grave crucial importance in ensuring an legal assistance. breaches of the four Geneva effective system for the repression Conventions of 1949 and their of crimes of international concern. In Additional Protocol I of 1977, for certain countries, for example, the Initiating prosecution which universal jurisdiction must be bringing of a criminal prosecution for provided in legislation. such crimes is subject to the War crimes may be committed by approval of an executive authority. members of armed forces or by Then it must be decided whether civilians, on the national territory or prosecutions must be brought; the 1 abroad, in the course of an main factor in such a decision For a more in depth discussion of international or non-international should be the quality of the evidence judicial guarantees, please refer to the armed conflict. Similarly, genocide Advisory Service Factsheet titled "Judicial Guarantees and safeguards " To overcome possible inactivity on Taking / evaluation of evidence the part of the government, for example for reasons of political Trials of offences committed abroad expediency, the criteria to which the raise particular issues relating to the bringing of criminal action is subject, taking of evidence and to the right of or the justification of a refusal to do the defence to review it. It is so, should be set out in a clear and important to look into these issues strict manner in national legislation. and, if necessary, to make provision It is also essential that the judiciary for suitable procedures such as and legal counsel (both for the taking evidence by video or accused and the prosecution) be executing letters rogatory abroad, properly trained for prosecuting and to bolster international judicial these international crimes. Finally, it cooperation agreements. is important that the victims of these crimes be given easy and direct To establish the defendant’s guilt in access to justice as well as war crimes cases, it must be information regarding the outcome demonstrated, among other things of trials. that the act in question occurred in the course of an armed conflict or in connection with it. National Choice of competent court legislation should therefore specify which authority is empowered to International law takes no clear qualify a given situation as an armed stand on the choice of competent conflict. court. While at the national level the establishment of exceptional In addition, victims should be tribunals is generally in conflict with allowed to participate actively in the the requirement for an impartial and procedure. Like the accused and the regularly constituted court, the witnesses, they should also benefit assignment of competence to from protection if needed. Situations military or civilian jurisdiction is left where resentment and the risk of to the discretion of the States. It is revenge are increasing would justify by no means easy to declare a priori such a measure. or as a general rule that one solution is preferable to another. With a view The need to protect military secrets to the repression of war crimes, must also be taken into account in national legislators will nevertheless criminal procedure, but bear in mind the following confidentiality must not be invoked considerations: with the sole aim of preventing prosecution. In camera proceedings · war crimes, crimes against may be held if necessary. humanity and genocide can be committed by civilians as well Participation of victims in trials as by military personnel; · they can be prosecuted in time In Common Law countries, since of peace as well as in time of crimes are considered committed war, especially where the against the State, as a result it is the principle of universal jurisdiction State that brings the prosecution. is applied; The role of the victims is limited to · they may involve carrying out providing evidence and they are not investigations abroad or having considered as parties to the recourse to international judicial proceedings. Upon request of the cooperation in cases where prosecution or the defence, they universal jurisdiction is applied may participate as witnesses. or where judgment is passed on the State’s own troops sent 2 By contrast, in Civil Law countries, abroad. the victims may initiate criminal proceedings and therefore become Possible solutions will depend on parties to the proceedings the relationship between military and (“constitution de partie civile”). In ordinary law and between military this context, victims have the power and civilian power within the to request the authorities, for organization of the State. example, to perform investigative acts or question witnesses and experts.

2 For a more in depth discussion on cooperation, please refer to the Advisory Service Factsheet entitled "Cooperation with extradition and judicial assistance in criminal matters" 03/2014