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ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN ______

General principles of international

International criminal law is the body of law that prohibits certain categories of conduct deemed to be serious , regulates procedures governing investigation, prosecution and of those categories of conduct, and holds perpetrators individually accountable for their commission. The repression of serious violations of international humanitarian law is essential for ensuring respect for this branch of law, particularly in view of the gravity of certain violations, qualified as crimes, which it is in the interest of the as a whole to punish. There are several basic principles upon which international criminal law is based. Since international crimes increasingly include extraterritorial elements, requiring enhanced interaction between States, it is becoming more pressing to coordinate respect for these principles. States must uphold them while also respecting their own national principles of criminal law and any specific principles outlined in the instruments of the regional bodies to which they are party.

Bases of · the protective principle and by certain international (acts affecting the security .1 A exercises jurisdiction of the State). Statutory limitations within its own territory. Such jurisdiction includes the power While these principles enjoy Time-barring, or the application to make law, to interpret or varying levels of support in of a statutory limitation on legal apply the law, and to take State practice and opinion, they action in the event of an action to enforce the law. While all require some link between offence, may relate to either of enforcement jurisdiction is the act committed and the State two aspects of legal generally limited to national asserting jurisdiction. Universal proceedings. territory, jurisdiction, a further basis for · The time may apply to recognizes that in certain asserting extraterritorial prosecution: if a certain circumstances a State may jurisdiction, requires no such time has elapsed since the legislate for, or adjudicate on, link. was committed, this events occurring outside its would mean that no public territory. is the action could be taken and assertion of jurisdiction over that no could be A number of principles have offences regardless of the reached. been invoked as the basis for place where they were · The limitation may apply extraterritorial jurisdiction. committed and the only to the application of These include: of the perpetrator or of the the itself: in this · the or active victims. Universal jurisdiction is case, the that a certain personality principle (acts held to apply to the core amount of time had committed by persons international crimes, namely elapsed would mean that having the nationality of the war crimes, crimes against the criminal sentence could forum State); humanity and , whose not be applied. · the passive personality repression by all States is principle (acts committed justified or required as a matter against nationals of the of international 1 For a more in-depth discussion of forum State); or universal jurisdiction, please refer to the Advisory Service Factsheet entitled “Universal jurisdiction over war crimes”. Most legal systems have time Customary international law occurred. As such, this principle bars for minor offences. But for prohibits the retroactive serious crimes, several legal Several factors have helped application of the law. The systems, in particular those bring to the fore the customary principle of specificity requires based on , do not nature of war crimes and that the definition of the permit a time bar for and proscribed act be sufficiently prosecution. in the non-applicability of statutory precise, while the of countries where limitations to them: analogy requires the definition prevails have either established · the growing number of to be strictly construed. time bars for serious crimes States having stipulated that are much longer than those the non-applicability of Ne bis in idem for misdemeanours, or statutory limitations to excluded this type of these crimes in their penal This maxim enunciates altogether from the effect of ; the principle that no person statutory time limitations. · the of this should be tried or punished concept in Article 29 of the more than once for the same The time-barring of the ICC , which its crime. It ensures fairness for application of criminal penalties drafters considered crucial since they can be is less prevalent. It does not to preventing for sure that the will be exist at all in common law, and these crimes; final and protects against is extremely restricted in other · the growing number of arbitrary or malicious systems. Where it does exist, States party to United prosecution at both domestic the time bars are generally very and Council of and international level. Further, long for the most serious conventions. this principle endeavours to offences and do not apply for ensure that investigations and certain types of offences or in Nullum crimen, nulla poena prosecutions are scrupulously cases involving dangerous or sine lege initiated and carried out. repeat offenders. Also known as the principle of It is important to note that the The absence of statutory , this principle, which is specific application of ne bis in limitations for certain crimes enshrined in Article 15 of the idem at the international level in international law International Covenant on Civil depends upon its formulation in and Political , states that the relevant of The 1949 no one may be convicted or international . For and their 1977 Additional punished for an act or example, the Statutes of the Protocols are silent on the that did not violate a penal law International Criminal Tribunals subject of time bars for war in existence at the time it was for the former Yugoslavia crimes. committed. Therefore, the (ICTY) and (ICTR) existence of a particular crime provide that no national The depends on the existence of may try a person for acts on the Non-Applicability of legislation stating that the already tried before the Statutory Limitations to War particular act is an offence, and international , while Crimes and Crimes against for a specific penalty to be under certain specific Humanity applies to both imposed for that offence, the circumstances the international prosecution and application of legislation in force at the time of tribunal may try a person that a sentences, and covers war its commission must include national court has already tried. crimes – in particular grave that particular penalty as one of The ICC Statute provides for a breaches of the Geneva the possible for that slightly different application of Conventions – and crimes crime. The purpose of this the principle of ne bis in idem in against humanity, including principle is to ensure that that a person may be tried at and genocide, legislation is specific and national level for conduct which committed in times of war and predictable so that individuals already constituted the basis of of . It is retroactively may reasonably foresee the a by the ICC. The effective, insofar as it abolishes legal consequences of their ICTY, ICTR and ICC Statutes time bars that had previously actions. The ICC Statute all provide for the possibility of been established pursuant to contains a specific provision on trying an individual for conduct or to other enactments. the principle of legality (Art. 22). that was already the subject of proceedings at national level Further, the Rome Statute of The principle of legality is where the proceedings were the International Criminal Court associated with the principle of designed to shield the person (ICC) stipulates the non- non-retroactivity, the principle from criminal responsibility at applicability of statutory of specificity, and the international level (Art. 10(2)(b), limitations for war crimes, prohibition of analogy. The ICTY Statute; Art 9(2)(b), ICTR crimes against humanity, principle of non-retroactivity Statute; Art. 20(3)(a), ICC genocide and the crime of states that the law proscribing a Statute). aggression (Art. 29). given act must have existed before the act in question · Personal immunity protects the acts of Forms of criminal persons essential to a responsibility State’s administration, whether in their Individual criminal responsibility personal or official capacity, for the International criminal law allows duration of their term for individuals to be held in office. criminally responsible not only · Functional immunity for committing war crimes, protects official acts of crimes against humanity and State representatives genocide, but also for carrying out their attempting, assisting in, functions for the State facilitating or aiding and and continues to abetting the commission of protect those acts after such crimes. Individuals may the end of their term in also be held criminally office. responsible for planning and Immunity thus acts as a even instigating the procedural bar to the initiation commission of such crimes. of proceedings against protected persons by foreign ; the official’s State of nationality may nevertheless Violations of international waive the immunity. criminal law can also result from a failure to act. Armed The ICTY, ICTR and ICC forces or groups are generally Statutes explicitly exclude the placed under a command that availability of functional is responsible for the conduct of immunities in cases of its subordinates. As a result, in international crimes (Art. 7(2), to make the system ICTY Statute; Art. 6(2), ICTR effective, hierarchical superiors Statute; Art. 27(1), ICC should be held to account when Statute). Only the ICC Statute they fail to take proper expressly excludes the measures to prevent their availability of personal subordinates from committing immunities in cases of serious violations of international crimes (Art. 27(2)). international humanitarian law. They may therefore be held to Indeed, the ICC Statute goes be criminally responsible for so far as to require States to criminal activities to which they remove immunities regarding 2 made no personal contribution. the perpetration of international crimes by enacting appropriate Immunity legislation in their national law (Arts 27 and 88). In practice, Immunities flow from the idea of the ICTY indicted two sitting State . Traditionally, Heads of State although the State representatives were court’s jurisdiction was only granted immunity from foreign effectively exercised once they jurisdiction. The purpose of had left office. The waiver of immunity is to allow is qualified in Article representatives to effectively 98(1) of the ICC Statute with exercise their official functions respect to non-party States and represent the State in . Two types of immunity have emerged.

2 For more information, please refer to the Advisory Service Factsheet entitled “Command responsibility and failure to act”.

03/2014