ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN ______

International criminal : The

Although the idea dates back to the aftermath of the First World War, it was only in 1945 that the first successful international organs of , the Nuremberg and Tokyo International , were established, to address war , crimes against and committed during the Second World War. Talks about the establishment of an international criminal resurfaced half a century later with the end of the Cold War; in the meantime, the large-scale atrocities committed in the former Yugoslavia and Rwanda had prompted the United Nations to set up two ad hoc tribunals, in 1993 and 1994, respectively. A series of negotiations to establish a permanent international criminal court that would have over serious international crimes regardless of where they were committed subsequently led to the adoption of the of the International Criminal Court (ICC) in July 1998 in Rome. The Statute entered into force on 1 July 2002 after 60 countries had become parties to it. It embodies the international community’s resolve to ensure that those who commit serious crimes do not go unpunished. The ICC is the first treaty-based, permanent international criminal court established to help end impunity for the perpetrators of the most serious crimes of international concern. In the years that followed, two mixed tribunals, comprising elements of both international and domestic jurisdiction, and special within national were established to try those responsible for crimes committed in specific contexts.

The ad hoc tribunals International Criminal Tribunals Residual Special Court for Sierra (MICT) was created to carry out a Leone will take over the SCSL’s The International Criminal number of essential functions of both functions after the latter closes. for the former Yugoslavia (ICTY), tribunals as part of their completion based in The Hague (Netherlands), strategy. The MICT has have Inaugurated in March 2009 pursuant was established in February 1993 by jurisdiction to supervise the to Security Council resolution 1664, Security Council resolution 808. Its enforcement of sentences, designate the Special Tribunal for Lebanon jurisdiction is limited to acts committed the State in which convicted persons (STL) has jurisdiction over the crimes in the former Yugoslavia since 1991 will serve their sentences and decide committed under Lebanese criminal and covers four categories of crimes on requests for pardon or law in the attack on the former Prime as defined in the Tribunal's Statute, commutation of sentence. In addition, Minister carried out on 14 February namely, grave breaches of the 1949 the MICT will be responsible for the 2005. It is the first international Geneva Conventions, violations of the protection of victims and witnesses in tribunal to try crimes under domestic and customs of war, genocide the cases before it and in cases law and to deal with terrorism as a and crimes against humanity. completed by the tribunals, while the distinct . The tribunal sits in The ICRT and the ICTY will remain in Hague and has an office in Beirut. The International Criminal Tribunal charge of this task for cases for Rwanda (ICTR), based in Arusha remaining before them. The MICT will Special Chambers were established (United Republic of Tanzania), was also retain jurisdiction over three of in the courts of East Timor (Special established in November 1994 by the remaining fugitives still wanted by Panel for Serious Crimes), Security Council resolution 955. Its the ICTR. The MICT branches in Cambodia (Extraordinary jurisdiction is limited to acts committed Arusha and The Hague started Chambers), Serbia (War Crimes in Rwanda or by Rwandan nationals functioning on 1 July 2012 and 1 July Chamber) and Bosnia-Herzegovina in neighbouring States during 1994 2013, respectively, and will work (War Crimes Chamber) in 2000, and covers three categories of crimes, concomitantly with the ICTY and the 2001, 2003 and 2005, respectively. In namely, genocide, crimes against ICTR while the two latter tribunals Kosovo1, a hybrid entity known as the humanity and violations of Article 3 wind up pending proceedings. " 64 panels", established common to the 1949 Geneva in 2000 by the United Nations Interim Conventions and Additional Protocol Mixed tribunals and special Mission in Kosovo II, which set out rules applicable to chambers (UNMIK), allows international non-international armed conflicts. to serve alongside domestic judges to Established in 2000 pursuant to try war criminals. The of the ICTY and the Security Council resolution 1315, the The International Criminal Court ICTR are not exclusive but concurrent Special Court for Sierra Leone (ICC) with national courts, over which they (SCSL) has jurisdiction over all nevertheless have primacy. violations of Sierra Leonean law and National enforcement systems, international humanitarian law (IHL) State responsibility and the ICC Pursuant to Security Council committed since 30 November 1996 resolution 1966 of 22 December and enjoys primacy over the national The ICC is not intended to replace 2010, the ICTY and the ICTR are courts of Sierra Leone. The SCSL has national criminal justice systems but expected to complete their respective offices in Freetown, The Hague and mandates by 31 December 2014, and New York City. Under an agreement 1 the United Nations Mechanism for signed in February 2012, the UN Security Council resolution 1244. rather to complement them. Nothing 2010 Review Conference in Kampala include, where necessary, the in the ICC Statute releases States and will be applicable to States that enactment of to ensure from their obligations under ratify the amendment. the collection of and the customary and arrest and transfer of those accused existing instruments of IHL to Other grave breaches of IHL, namely of crimes under the ICC’s investigate and prosecute war unjustifiable delay in the repatriation jurisdiction. crimes allegedly committed by their of prisoners or launching an attack nationals or armed forces or on their against works or installations In addition, by virtue of the principle territory, and they are thus still containing dangerous forces, which of universal jurisdiction, States are required to enact implementing are defined as grave breaches in themselves obliged to bring persons legislation giving effect to these Additional Protocol I, are not accused of grave breaches of the obligations. specifically referred to in the Statute. 1949 Geneva Conventions and 1977 Additional Protocol I for before By virtue of the principle of When can the ICC exercise its their national courts or to extradite complementarity, the ICC’s jurisdiction? them for trial elsewhere, regardless jurisdiction is intended to come into of their nationality and of the place of play only when a State is genuinely States that become party to the the offence. National courts will thus unable or unwilling to prosecute Statute accept the jurisdiction of the continue to play an important and alleged war criminals over which it ICC in respect of the above primary role in the prosecution of has jurisdiction. The ICC is thus mentioned crimes. Under Article 25 war crimes. intended to be a last resort in the of the Statute, the ICC has event that a State fails or is unable to jurisdiction over individuals, not What is needed to ensure the properly discharge its duty to States, and, unlike the ICTY and ICC's effectiveness? prosecute with regard to these ICTR, it does not have primacy over international crimes. This principle is national courts. § States should ratify the ICC merely intended to serve as a means Statute as soon as possible, of bringing about a more effective The ICC may exercise its jurisdiction since universal ratification is system of repression aimed at at the instigation of the or essential to allow the Court to preventing, halting and punishing the a State Party, providing that State is exercise its jurisdiction effectively most serious international crimes. either the State on whose territory and whenever necessary. the crime was committed or the § States should carry out a thorough Crimes under the ICC's jurisdiction State from which the person review of their domestic legislation accused of the crime is a national. A to ensure that their laws and According to its Statute, the ICC has State that is not a party to the institutions are in compliance with jurisdiction over aggression, Statute may make a declaration to their IHL obligations and that the genocide, crimes against humanity the effect that it accepts the Court's ICC crimes are integrated into and war crimes. Article 8 of the jurisdiction. Further, under the their domestic legislation and tried Statute lists the war crimes over collective security framework of and repressed at domestic level. which the ICC has jurisdiction. These Chapter VII of the of the § States should assist each include most of the grave breaches United Nations, the Security Council other and the ICC in connection with listed in the 1949 Geneva may refer a situation to the proceedings relating to crimes that Conventions and Additional Protocol I Prosecutor for investigation. It may come under the Court's jurisdiction. and a number of serious violations of also request that no investigation or This will require the enactment or IHL, some of which are considered prosecution commence or proceed amendment of legislation to ensure war crimes irrespective of whether for a renewable period of 12 months. any necessary transfer of those they were committed in international accused of such crimes and of or non-international armed conflicts. Procedure and evidence before the required evidence and information. Offences specifically identified as ICC war crimes in the Statute include: Some elements of the inquisitorial International courts and the ICRC § rape, sexual slavery, enforced system were introduced in the ICC’s prostitution, forced pregnancy or rules of procedure and evidence in The ICRC supports all efforts to other forms of sexual violence; order to balance some of the major promote respect for IHL, including § use of children under the age of disadvantages of the adversarial when it comes to preventing and 15 to participate actively in model, the principal features of which repressing war crimes. In this hostilities. were adopted by the ICC. For connection, it strongly welcomed the instance, the Prosecutor must establishment of the ad hoc tribunals The Statute also contains a number of investigate both incriminating and and actively participated in the provisions concerning certain exonerating evidence equally in order negotiations to establish the ICC, weapons the use of which is to “establish the truth” as he is prohibited under various existing required to do under Article 54(1)(a) although it has not been involved in treaties, such as poison or poisoned of the Statute. One particular feature court proceedings. In order to protect weapons, asphyxiating, poisonous or of the ICC is that victims have the its confidentiality, the ICRC enjoys other gases and all analogous liquids, right to participate in proceedings and testimonial immunity, notably under materials or devices and, more request reparations. They may also the ICC Rules of Procedure and broadly, weapons and methods of present their views and concerns at Evidence, and therefore does not warfare which are of a nature to all stages of the proceedings. provide evidence to the ICC or other cause superfluous injury or tribunals. unnecessary suffering. An States and the ICC amendment to the Statute extending these provisions to non-international States have clear obligations to armed conflicts was adopted at the cooperate with the ICC. These

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