International Criminal Law

PROF. (DR.) C. J. RAWANDALE

AND DR. SHASHI BHUSHAN OJHA
Introduction
International criminal law is the law that governs individual criminal
responsibility, or liability, for international crimes directly under int. law.
Earlier only states were considered to have rights and obligations under
Int. Law
Things started changing after Piracy and Slave Trade was declared as
crime against humanity.
Under Treaty of Versailles 1919 which was signed after the end of World
War I, first attempt was made to establish Int. Criminal Tribunal with
partial success.
Second important attempt was made after the end of World War II
Agreement was signed for the Prosecution and Punishment of the major war criminals of World
War II. Responsibility was to be fixed on individuals for crimes against peace, war crimes and
crimes against humanity. This established Nuremberg Tribunal.
Nuremberg Tribunal is regard as first int. criminal tribunal.
The tribunal declared that int. law imposes duties and liabilities on individuals as well as states.
Since states are abstract entities, punishing individuals for the crimes will enforce int. law.
Individuals have international duties which transcend the national obligations of obedience
imposed by an individual state.
Thereafter The International Military Tribunal for the Far East was established in January 1946 to
deal with Japanese war crimes. It reaffirmed the Nuremberg Tribunal’s finding to punish
individuals holding that ‘superior order’ cannot be a defence under int. law.
General Assembly in 1946 affirmed the principles of this Nuremberg Charter and the decision of
the Tribunal.
However Nuremberg Trial is criticised for being ‘victor’s justice’ and for applying ex post facto law.
Later on, UNGA passed a resolution to declare genocide to be int. crime in 1946 and it
became basis for Genocide Convention 1948. The convention declared that genocide is
punishable crime either under domestic law or int. tribunal.
Thereafter four Geneva Convention 1949 and associated Additonal Protocols fixed
individual liability for war crimes during armed conflicts. (IHL)
Any individual irrespective of rank shall be personally liable for war crimes.
The International Law Commission in 1991 provisionally adopted a Draft Code of Crimes
Against the Peace and Security of Mankind which was revised in 1996. It provides for
individual criminal responsibility with regard to aggression, genocide, a crime against
humanity, a crime against United Nations and associated personnel and war crimes.
UNSC Resolutions (which are binding on all members) also played role furthering the
international criminal law.
Therefore now ICL is now more substantive in nature. The idea is to eliminate the
problems generated by the absence of clearly defined offences and sanctions.
Sources of ICL
Emergence of HR movements. But not all violation of HRs is treated as int. crime.
IHL
Treaty and Customs
UNGA and UNSC resolutions.
Judicial Decisions
Under current international humanitarian law, in addition to individual criminal
liability, State responsibility may ensue as a result of State officials engaging in
torture or failing to prevent torture or to punish torturers. (Prosecutor v. Anto
Furundžija ICTY)
Nullum crimen sine lege (ICCPR Art. 15. Art. 22 of the ICC Statute)
Nulla poena sine lege (Art. 23 of the ICC Statute). These are general principles of ICL
The International Criminal Tribunal for the
former Yugoslavia (ICTY)

The Yugoslavia genocide 1994 led to establishment of war crimes

tribunal through Security Council Resolution.
The Security Council through a series of resolution first established an
impartial Commission of Experts to examine and analyse evidences of
violation of IHL.
The resolutions are series of steps to establish ICTY, most importantly the
Resolution 827 (1993) which is considered as statue of ICTY, a draft
prepared by UN Sec. General.
The Tribunal was given the power to prosecute persons responsible for
serious violations of international humanitarian law committed in the
territory of the former Yugoslavia. The tribunal does not have a closing
date.
The Tribunal consists of three main organs: the Registry, the office of the Prosecutor and the
Chambers.
The Prosecutor is also the investigator of the case brought to its notice.
Decisions are appealable to Appeals Chamber.
The crimes to be punishable includes: grave breaches of the Geneva Conventions of 1949, violation of
the laws or customs of war, genocide and crimes against humanity (Art. 2-5)
Conspiracy- Art. 7
Concurrent national court jurisdiction- Art. 9. But ICTY to have supremacy.
Int. cooperation to prosecute the guilty persons. Art. 29
The Tadi´c case confirmed the establishment of customary international law of criminal responsibility
for violations of IHL.
Similarly International Criminal Tribunal for Rwanda (ICTR) was established for Rwanda massacre
during 1994. The tribunal judgments include Kambanda case, Akayesu case etc. The latter case is
know for discussion on definition of genocide and crime of rape under int. law.
Rome Statute and ICC
The Genocide Convention through Art. 6 called for establishment of int.
criminal tribunal.
ILC submitted a report in this regard to UNGA. The UNGA based on the
report adopted a draft statute later on. No further progress made till
1989 when Trinidad and Tobago proposed the creation of a permanent
international criminal court to deal with drug trafficking.
In 1994 again ILC adopted a draft statute for creating ICC. It tried to
extend jurisdiction not only over genocide, war crimes, crimes against
humanity and aggression, but also over certain ‘treaty crimes’ such as
terrorism and drugs offences found in UN conventions
It led to Rome Conference 1998 where Rome Statute was adopted for
establishing ICC. In 2002 Rome Statute became enforceable.
The ICC jurisdiction extends to the ‘most serious crimes of concern to the
international community as a whole’, being genocide, crimes against humanity, war
crimes and aggression- Art. 5 read with Art. 22(2), 123, 121(5).
Individual responsibility and punishment according to Rome Statute. Art. 25
When jurisdiction can be exercised- Art. 11, 12,29. (Territorial and Personal
Jurisdiction)
Link b/w UNSC and ICC- Art. 13(b)
Controversial Provisions- Art. 16 and 98(2), Art. 17, 26
The Court consists of four organs. These are respectively the Presidency; an Appeals
Division, a Trial Division and a Pre-Trial Division; the
Office of the Prosecutor; and the Registry- Art. 34
Reservation-Art. 120, 124
Amnesty and ICC
Procedural Concerns- ICC lacks police force; Ability of ICC personnel
from being able to travel to the country concerned; In the Thomas
Lubanga case, use of intermediaries to collect evidences was criticised
by the court.
Sovereign Immunity and ICC. Art 27
Actus rea and Mens Rea
Hybrid Courts
Both international and national elements co-exist in varying
combinations
They are essentially domestic courts applying domestic law, but with a
heightened international element in terms, for example, of their
function or origins, the basis of their applicable law or the use of
international experts.
Examples include: The Special Court for Sierra Leone; The Extraordinary
Chambers of Cambodia.
International Crimes
There are wide range of international crime- aggression, genocide, war crimes, crime
against humanity, piracy, drug trafficking, slave trade, terrorism etc.
Generally first four are tried by int. courts and rest are tried by national courts.
GENOCIDE- There are multiple definitions of genocide. UNGA Resolution has
characterized it as ‘[a]​denial of the right of existence of entire human groups.
Art. 2 of the Genocide Convention 1948 lists the acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group. Same followed in Art. 4
of Statute of ICTY.
It includes (a) genocide; (b) conspiracy to commit genocide; (c) direct and public
incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in
genocide.
The most important element of this crime is the specific intent to destroy the group in
question in whole or in part. It is more than act of killing. (Jelisi´c case)
Akayesu case-the specific intention, required as a constitutive element of the crime, which
demands that the perpetrator clearly seeks to produce the act charged. To be proved by
confessions or facts.
In Jelisi´c case, the ICTY pointed to the difficulty in practice of proving the genocidal intention
of an individual if the crimes committed were not widespread or backed up by an
organisation or a system.
ICTY in the Krsti´c case, held that the intent to eradicate a group within a limited geographical
area, such as a region of a country or even a municipality, could be characterised as genocide.
Killing of substantial part of a group (not whole) is also genocide. The numeric size of the
targeted part of the group is the necessary and important starting point, though not in all
cases the ending point of the inquiry. The number of individuals targeted should be evaluated
not only in absolute terms, but also in relation to the overall size of the entire group. The
substantial part may be necessary for the existence of the group.
ICTR- a combination of ‘extermination and persecutions on political, racial or religious
grounds’ and it was intended to cover ‘the intentional destruction of groups in whole or in
substantial part
‘Intention to destroy’- physically and biologically (but does not include only
death). Forced migration or marriage as such does not constitute genocide,
but may amount to a pattern of conduct demonstrating genocidal intent.
The Akayesu case has also been important in emphasising that rape and
sexual violence may amount to genocide when committed with the
necessary specific intent to commit genocide (specifically targeting).
Further, where it is intended to prevent births within the group whether by
impelling the child born of rape to be part of another group or where the
woman raped refuses subsequently to procreate, this may amount to
genocide.
Genocide includes act and omission both. Often committed against
‘protected group’. Subjective test is applied- treating a person belonging to
the protected group.
 War Crimes
Serious violation of customary and treaty IHL.
(a) wilful killing; (b) torture or inhuman treatment, including biological
experiments; (c) wilfully causing great suffering or serious injury to body or
health; (d) extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly; (e) compelling a
prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully
depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g)
unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking
civilians as hostages.
Essentially, war crimes law applies to individuals and international humanitarian
law to states.
Armed conflict exist whenever there was a resort to armed force between states
or protracted armed violence between governmental authorities and organised
armed groups or between such groups within a state.
It extends beyond the cessation of hostilities until a general conclusion of peace is
reached. Until then, international humanitarian law continue to apply
The distinction b/w international and internal war has been minimised wrt to
protection of human rights.
CRIMES AGAINST HUMANITY- Article 6(c) of the Nuremberg Charter
It is defined as ‘murder, extermination, enslavement, deportation and other
inhumane acts committed against any civilian population, 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 law of the country where perpetrated.
Article 5 of the Statute of the ICTY and Art. 3 of ICTR also provided for the same.
Enforced disappearance and apartheid are added in Art. 7 of the Rome Statute as
part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack.
In Akayesu case, it was held that the concept of widespread could be defined as
‘massive, frequent, large scale action, carried out collectively with considerable
seriousness and directed against a multiplicity of victims’, while ‘systematic’
could be defined as ‘thoroughly organised and following a regular pattern on the
basis of a common policy involving substantial public or private resources. Not
required it to be state policy.
However, in Kunarac, the ICTY Appeals Chamber held that the existence of a
policy or plan could be evidentially relevant, but it was not a legal element of the
crime
Here armed conflict and nationality of the civil population is irrelevant. Still it is
important to maintain a clear distinction between civilian and non-civilian
population.
Genocide is also a crime against humanity, although the reverse is not true. An
attack may also be nonviolent in nature, like imposing a system of apartheid
Aggression
Aggression is recognised as a crime in customary international law.
Article 6 of the Nuremberg Charter calls it to be crime against peace. It
includes planning, preparation, initiation, or waging of a war of
aggression or a war in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.
Aggression is a crime of ‘leadership’ and necessarily requires that it be
determined as an initial point that the state, of whom the accused is a
‘leader’ in some capacity, has committed aggression
Fair Trial must be given. Art. 55,66,67 of ICC Statute.