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International Criminal Law and International Criminal Court (ICC)
International Criminal Law
and International Criminal Court
(ICC)
Author: Mr. Darko Trifunovic, M.S.L.
Editor & translator: Ms. Jill Starr
Art director: Mr. Milosh Zorica
Publisher: LPC Yugoslavia
@ 2001 LPC Yugoslavia
1. International Criminal Court
(Process to establish International Criminal Court)
In classic international law, international tribunals have been created from time to time to put enemy soldiers on trial on a charge of war crimes. These tribunals, however, were ad hoc in nature and retroactive in application. They were established after particular armed conflicts had ceased. The jurisdictional basis for prosecution derived from the customary right of a belligerent to open trials against enemy soldiers on a charge of war crimes.
The idea of an International Criminal Court is not new. Virtually since the nations first arose in human society, the law has been concerned with defining criminal acts on the cross-national boundaries, such as slave trade, acts of terrorism, or crimes associated with war. Another issue with which the law has been equally concerned is the prosecution of those accused of such offenses, be they States or individuals. On 17 July 1998 in Rome, 160 nations decided to establish a permanent International Criminal Court to put individuals on trial on a charge of the most serious offences of global concern, such as genocide, war crimes and crimes against humanity. Many felt the agreement was no less important than the adoption of the United Nations Charter itself.
Following the end of the First World War, the Treaty of Versailles provided in Article 227 that the former Emperor of Germany Kaiser Wilhelm II was to be prosecuted by a special International Military Tribunal [1] [2] (IMT) for a supreme offence against international morality and the sanctity of treaties. Although Article 227 of IMT was never executed for several reasons, the Nuremberg and Tokyo Tribunals were instituted later in the wake of the Second World War by the category of ad hoc military tribunals in customary international law.
The first impetus for the creation of an international tribunal was sparked by the assassination of Yugoslavian King Alexander and French Minister Barthou at Marseilles on October 9, 1934. In response to French proposals to establish an international tribunal, the League of Nations Council decided to set up a Committee of Experts to draw up a draft convention for the repression of terrorism [2] [3]. The Committee prepared two draft conventions: one for the repression of terrorism and the other for the creation of an international criminal court, which were revised later in response to the comments of governments. The draft convention for the creation of an international criminal court, or the Permanent Court of International Justice of the League of Nations, contained important provisions on the establishment of a Higher Court of International Justice for the persecution of international criminals. However, the League never adopted this proposal [3] [4].
As for the draft convention for the repression of terrorism, it was adopted as the League of Nations Convention for the Prevention and Punishment of Terrorism [4] [5] together with a treaty for the establishment of an international criminal court [5] [6] to implement provisions of the convention. However, due to the lack of the number of ratifying countries and the outburst of World War II, this convention never entered into force as well as the convention for establishing the Permanent Court of International Justice of the League of Nations. Needless to say, a treaty for the establishment of an international criminal court was not been concluded either.
Another convention to try to regulate criminal acts on the cross-national boundaries was the UN Genocide Convention, which referred to the possibility of trials of persons charged with genocide [6] [7]. However, an international criminal court was not to be established under this Convention. It only gives states the ability (Article IV) to create an international criminal court and to attribute the exercise of jurisdiction to the court.
Despite its stagnant process, the establishment of an international criminal court became a world agenda again in 1951 when the UN General Assembly Committee on International Criminal Jurisdiction produced a draft statute for an international criminal court [7] [8]. Although the draft statute was revised two years later to incorporate various opinions [8] [9], however, the General Assembly was not able to reach agreement on the statute for an international criminal court. The reason was that the Assembly had disagreed with the definition of the crime of aggression, and that an international criminal code had not been adopted as a result. Consequently, the establishment of an international criminal court was postponed indefinitely by UN General Assembly Sixth (legal) Committee in 1957.
Another attempt to establish an international criminal court had not been made until 1979 when the General Assembly asked the UN Commission on Human Rights to produce a draft statute for an international tribunal in order to empower the apartheid Convention [9] [10]. A draft statute, prepared by International Law Commission (ILC) [10] [11], was offered to the General Assembly of UN, but has not been discussed until today. The initiative for putting the establishment of an international criminal court back on the agenda of the United Nations came in 1989 from Prime Minister A.N.R. Robinson of Trinidad and Tobago, who had long been interested in the subject and who found that his country needed help in coping with international drug-traffickers [11] [12]. The General Assembly referred the matter to the ILC, and requested its report in term of one year. The ILC, recognizing that there was an agreement on the desirability of such a court and that the opportunity should not be lost, reported to the General Assembly as scheduled, and was subsequently entrusted to prepare a draft statute for an international criminal court [12] [13]. The ILC established a Working Group on an international criminal court, which in turn formulated basic propositions for the establishment of such a court. The report of Working Group, including a draft statute for an international criminal court, was transmitted to the General Assembly, which, after expressing appreciation, asked the ILC to speedily continue its work in order to present a final draft statute in 1994 [13] [14]. The views during the work of committees varied, and there was much hesitation about accepting such a drastic innovation. Many small states did not see the relevance of such a tribunal, and some powerful states were quite content with the existing legal order based on military might.
As the issues were slowly clarified, however, the feeling began to grow that an independent permanent court, if it would be set up before the crimes were committed, would better serve the interests of world peace. Even when it become apparent that the Security Council, dominated by the ‘Big-5’ with veto powers, could create ad hoc tribunals without further consultation, therefore, the common understanding was that such ‘ad hoc’ was not something that the world had desired. By the end of 1996, the General Assembly requested the Preparatory Committee [14] [15] (Prep.Com.) to negotiate a consolidated text of a Convention as a Statute that could be widely accepted in a treaty creating a permanent international criminal court. Then, by the resolution 52/160 of 150 December 1997, the UN General Assembly accepted with deep appreciation the generous offer of the Italian Government to act as host to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court (ICC), and finally decided to hold the Conference in Rome from 15 June to 17 July 1998.
The Prep. Com. on the establishment of the ICC met at UN headquarters from 25 March to 12 April 1996 and from 12 to 30 August 1996, in accordance with the General Assembly Resolution 50/46 of 11 December 1995 [15] [16]. The missions of the Prep.Com were ‘to discuss further the major substantive and administrative issues’ arising out of the Draft ICC Statute prepared by the ILC [16] [17], and to finalize the draft into a widely acceptable consolidated text of the ICC Statute in order to present to the decision-makers at the Rome conference of plenipotentiaries.
On the other hand, the UN General Assembly requested the ILC to develop a Code of Offences Against Peace and Security of Mankind in 1947. When the ILC set out on its work, however, the world faced the advent of the Cold War, and its consequences were deeply felt on the development of this effort. The work of the ILC on the Draft Code of Offences was at first frustrated, and then truncated with the task of defining ‘aggression’ being eliminated from its mandate. Thereupon, the General Assembly created a Special Committee, and gave it the task of defining such crime [17] [18]. It was twenty years later when the General Assembly adopted Resolution 3314 (XXIX) of 4 December 1974, which included a definition of the crime of aggression, on the basis of the recommendations of the Special Committee. Meanwhile, the ILC finally resumed its works on the Draft Code as late as 1982, following the UN General Assembly Resolution 36/106 of 10 December 1982. Later, the Commission took over the preparation of Draft Code, and approved it at the second reading during the 1996 session. A report dated 8 July 1996 was presented to the General Assembly [18] [19].
As for development on a statute of an international criminal court before the Prep.Com started its work in 1990s, two Special Committees of the UN General Assembly had proposed a draft statute in the 1951 and 1953 [19] [20]. The 1953 Revised Draft of extremely short statute was not taken into serious consideration by the various powers of the Cold War era. It was a period when the law of the force had much more influence on international affairs than the force of law.
(The mandate of UN General Assembly resolutions 43/164 and 45/41 invited the ILC to further consider and analyze the question of international criminal jurisdiction.) In 1947 when the UN General Assembly requested the ILC to develop a Code of Offences Against Peace and Security of Mankind, further analysis on international criminal jurisdiction was also entrusted to ILC at the same time as the mandate of the UN General Assembly resolutions 43/164 and 45/41. What had already been ‘approached’ in the context of the Draft Code on international criminal jurisdiction was not to be seen in the light of the global concern against drug trafficking. As a general response, therefore, the ILC began to move its focus from the Draft Code for international criminal jurisdiction to the draft statute for the International Criminal Court when a group of Caribbean and Latin American States, represented at the UN General Assembly Sixth Committee by Trinidad and Tobago, played a leading role in this decision-making process.
The efforts to establish the ICC gained impetus in early 1990s after Trinidad and Tobago raised their concerns on drug trafficking. Through its working group set up in 1993 and 1994, the Commission, which presented an initial report on a Draft Statute for the ICC to the Sixth Committee of the General Assembly. Taking into consideration written comments that the State had sent the Commission by February 1994 [20] [21], the Commission finally produced a Draft Statute for the ICC, which was contained in its 1994 report. Upon the completion of the Draft Statute for the ICC in 1994, the Sixth Committee of the General Assembly established an Ad Hoc Committee to review the proposed draft. After two meetings of the Ad Hoc Committee in 1995, the Sixth Committee then set up a Prep.Com. to draft the text of a Convention for consideration by an international conference of plenipotentiaries. Remarkably, a number of delegations supported the establishment of the ICC during the meetings.
The results of its 1996 [21] [22] discussions are contained in the large report submitted to the 52nd session of the UN General Assembly. A variety of States representing all regions in the World presented their alternative legal options to those included in the ILC Draft Statute for an ICC. More than 120 States delegations took part in or at least observed carefully the Prep.Com debates.
In 1996, UN General Assembly finally adopted the Sixth Committee resolution of 1996 on the ICC, and called for the international community’s definitive commitment to establishing the ICC. To put it in the other way, the ardent desire of the International society to establish the ICC has been realized by the adoption of this Resolution on the ICC. The Resolution demonstrated the firm determination of the international community to continue to work on the establishment of the ICC, by specifying the provision of four Prep.Com. sessions of 1997 and 1998, by setting a date for the Diplomatic Conference of Plenipotentiaries on the establishment of the ICC, by accepting the generous offer of the Italian Government to host the Conference and pay for its costs, and by indicating the Rome Headquarters of the Food and Agriculture Organization of the UN as venue for future work. Continuous efforts based on the ILC Draft Statute for the ICC while taking into account the report of the Ad Hoc and Preparatory Committees and the comments submitted by States is expected.
2. Rome Conference
The establishment of the ICC was finally decided at Rome Conference in 1998 when more than 150 UN member states gathered in Rome from 15 Jun to 17 July, and negotiated a treaty to establish a permanent International Criminal Court. After the heated discussions of preparatory meetings held in later years in New York and five weeks of negotiation in Rome, 120 UN member states voted for the treaty to hear future cases of genocide, serious war crimes and crimes against humanity with 7 voting against and 21 abstaining. Most of the world's democracies - western and central Europe together with countries like Argentina, Australia, Canada, Costa Rica, South Africa and South Korea - supported the establishment of the ICC. Only two democracies - the U.S. [22] [23] and Israel - voted against it with China, Iraq, Libya and others. When the United States voted in Rome against the treaty to create a permanent international criminal court, or the ICC, it broke ranks with its closest allies. In fact, most of the world, including virtually every established or emerging democracy, voted for the treaty. Among the supporters were the United Kingdom, Germany, France, Russia, Canada, Australia, New Zealand, Argentina, Chile, South Korea and South Africa. The breadth of support for the ICC reflected a remarkable consensus in favor of this new international institution for justice. So far 91 countries had signed the Statute, which was open for signature at the Office of Legal Affairs, and 7 countries had ratified. The treaty will come into force with 60 ratifications [23] [24].
The ICC is a product of extensive compromise, being far from perfect. Most significantly, it may lack jurisdiction of internal wars such as atrocities committed by tyrants against their own peoples, collective punishments, slavery and starvation of civilians. Despite every effort to ensure that the ICC Statute covers both international and internal armed conflicts, some crimes in internal conflicts are omitted from ICC jurisdiction. Although other tribunals may still prosecute such crimes technically, the omission of those crimes from the ICC may cause other courts to question their international legal status. It is also important to note that the ICC may allow too much room for national governments to delay, obstruct and avoid credible international prosecutions.
Despite its flaws, however, the treaty is undoubtedly an important step towards institutionalizing the rule of law internationally and breaking the cycle of impunity that too often benefits those who commit the worst atrocities. Moreover, contrary to Washington's objections, the ICC presents little risk of frivolous or politically motivated prosecutions of U.S. officials or troops deployed abroad in peacekeeping or humanitarian missions. Rather, the ICC promotes stability and peace if it works as an effective court. More importantly, the ICC is the first essential step after years of ups and downs, and should be supported as such. [24] [25]. Taking into consideration these positive aspects, the United States are expected to join this consensus by actively supporting the ICC and by ratifying the Rome Treaty at the earliest opportunity.
The 13-Part Statute of the ICC, containing a total of 128 articles, was opened for signature in Rome on 17 July (year) and will remain open for signature at United Nations Headquarters until 31 December 2000. The Statute is subject to ratification, acceptance or approval by signatory States, and to accession by all States. Instruments of ratification, acceptance, approval or accession are to be deposited with the Secretary-Generally of United Nations. After the Statute enters into force with 60 countries ratifying, the seat of the Court will be in the Netherlands [25] [26], but it will be authorized to open trials in other venues when appropriate. It should be noted here that the ICC has power to open cases only for crimes committed after it comes into being. Therefore, it is considered to be a court for the 21st but not the 20th century.
The ICC Statute contains a number of provisions that protect the interests of victims, the accused and the States concerned. Among the provisions, the following are the key provisions:
· Automatic jurisdiction of the Court over the core crimes of genocide, war crimes and other crimes against humanity
· A well defined and limited role for the Security Council in certain circumstances
· jurisdiction of the Court over internal armed conflicts
· An independent prosecutor, subject only to controls by the Court
· Issues concerning gender and children.
Other provisions are designed to ensure that the Court will not be used for politically motivated investigations or prosecutions, and that it will act only when States concerned are unable or unwilling to do so.
The ICC Statute accepts the current definition of genocide, killing and other violent or coercive acts committed with intent to destroy, in whole or part, a national, ethnic, racial or religious group. These crimes that falls in the category of genocide, serious war crimes and crimes against humanity are the initial core jurisdiction of the ICC. For the sake of the clear jurisdiction of the ICC, however, more steps should be taken to define these crimes.
The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf [26] [27]. Therefore, the Court will not be an organ of the United Nations although it will have formal relations with the Security Council [27] [28]. The Security Council [28] [29] will have an important role in the Court's operation by virtue of its authority to initiate or defer investigations. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The Court may exercise its functions and powers, as provided in the ICC Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
Initially, the Court will consist of 18 judges, elected by a two-thirds majority vote of the Assembly of States Parties to nonrenewable nine-year terms [29] [30]. The requirement of a two-thirds majority ensures that only judges who are broadly acceptable to the international community will be seated on the Court. Moreover, only citizens of countries that are parties to the treaty can be judges [30] [31]. And no two judges may be citizens of the same country [31] [32]. In selecting judges, the States Parties must take into account the need for representation of the principal legal systems of the world, equitable geographic representation and a fair representation of female and male judges [32] [33]. Once elected, the judges will divide themselves among three divisions: Pre-Trial, Trial and Appeals [33] [34].
Absolute majority of the Assembly of States Parties will elect the Prosecutor and one or more Deputy Prosecutors to nonrenewable nine-year terms [34] [35]. These individuals must have extensive practical experience in the prosecution or trial of criminal cases. The Prosecutor will act on referrals by States Parties or the Security Council and may initiate investigations on his/her own motion propio motu, subject to various safeguards and controls. The Rome Treaty permits the Security Council to refer situations while acting under Chapter VII of the UN Charter [35] [36]. And when the Security Council refers a situation, the Court can exercise its jurisdiction even though interested countries, such as the country of a suspect's nationality, have not accepted the Court's jurisdiction. Thus, the Court's reach is greatest when Security Council gives a mandate. In turn, the Security Council will also have the power to defer investigations or prosecutions for renewable twelve-month periods [36] [37].
The Court is not intended to replace functioning judicial systems. Rather, the goal is to provide an alternative to impunity where independent and effective judicial systems are not available. Thus, a fundamental principle of the Rome Statute is that the Court must defer to national courts, except in those cases where they are "unwilling or unable genuinely" to investigate or prosecute [37] [38]. This principle, known as ‘complementarity [38] [39],’ can be invoked by interested states and by individuals who have been accused of crimes to block Court action. The exceptions to the basic presumption of deferral to national systems are quite narrow. By the treaty's terms, ‘unwillingness’ in effect requires that national proceedings be undertaken in bad faith before the ICC can step in. Thus, the use of established, transparent judicial procedures - the norm in the military and civilian courts of established democracies governed by the rule of law - precludes a finding of ‘unwillingness.’ Unwillingness is not established just because an investigation does not result in prosecution. When a State carries out its obligation to investigate, even if it decides not to prosecute, the Court will be barred from acting.
One of the exceptions to the principle of ‘complementarity’ is called ‘inability,’ which means ‘a total or substantial collapse or unavailability’ of the national courts. This exception would apply to countries in which the judiciary has ceased in whole or substantial part to function. It would not apply to a state with a functioning judicial system, therefore, even if the system has structural flaws. Article 18, which was proposed and strongly pushed by the United States, allows a state to assert the primacy of its national system with regard to individuals within its jurisdiction at the very outset of an investigation, even before individual suspects have been identified. The Prosecutor must defer to the state unless he/she can bear the burden of convincing two panels of judges that the state is not willing and able genuinely to investigate and prosecute. In one respect, this provides a safeguard against a prosecutor of overzealous countries, such as the United States, interfering with a functioning and independent judicial system. However, at the same time, it offers authorities of less responsible states an opportunity to delay and obstruct an investigation.
In one of six resolutions adopted, the Conference recognized that terrorist acts and trafficking of illicit drugs were serious crimes of concern to the international community, sometimes destabilizing the political, social and economic order in States. The Conference regretted that no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for inclusion within the jurisdiction of the ICC. Therefore, it recommended that a review conference provided for in the Statute should consider these crimes to reach an acceptable definition and include them in the list of crimes within the Court's jurisdiction.
Another important decision that the Conference made was to establish the Preparatory Commission [39] [40] for the ICC. Preparatory Commission was entrusted to take all possible measures and to make all the necessary arrangements in order to ensure that the Court starts functioning without undue delay. Among the measures are:
l preparation of the draft on rules of procedure and evidence
l preparation of the draft on elements of crimes
l a relationship agreement between the Court and the United Nations
l basic principles governing a headquarters agreement to be negotiated between the Court and host country (Netherlands)
l a budget for the first financial year
l The rules of procedure of the Assembly of States Parties;
It should be noted that the draft texts of the rules of procedure and evidence and of the elements of crimes should be finalized before 30 June 2000.
The Commission shall consist of representatives of States which have signed the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and other States which have been invited to participate in the Conference;
The Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute;
3. Definition of International Crimes
International Crimes are such conducts of individuals that have been defined by general international law or by international treaties and conventions. Most international crimes are part of jus cognes. In other words, an international crime is internationally wrongful act, which is potentially harmful to the community of nations. The concept of an international crime arises when a serious violation of an international obligation of fundamental importance for the security of international legal order has occurred [40] [41]. The international crimes have following ten characteristics:
1. Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime
2. Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like
3. Criminalization of the proscribed conduct
4. Duty or right to prosecute
5. Duty or right to punish the proscribed conduct
6. Duty or right to extradite
7. Duty or right to cooperate in persecution, punishment (including judicial assistance)
8. Establishment of a criminal jurisdictional basis
9. Reference to the establishment of an international criminal court or international tribunal with penal characteristics
10. No defense of superior orders;
The existence of any one of these ten penal characteristics has been deemed sufficient to identify the multilateral instrument as part of international criminal law [41] [42].
When international crimes are the product of state-policy, or when, in their commission, they are the product of state-favoring policy, there are twenty-two kinds of international offenses. Some offenses fall mandatory within this category while all other offenses will fall within it only if they are the product of state action, or are favored by state conduct. The mandatory offenses falling in this category are: 1.Aggression, 2.War Crimes, 3.Crimes against Humanity, 4.Genocide, 5.Unlawful use of weapons, 6.Apartheid [42] [43].
4. Definition of International Criminal Law
International Criminal Law is still young and less-developed branch of the laws, but it has grown tremendously in modern times. One of the development that this branch saw is its definitions. It has been defined in different ways, and these definitions have mostly been on the precepts of international criminal law, which are generally for the prevention of criminal violations of the system of public international law.
When we meet the Romans in history, their jurisdictional unit is the large family, in which the sovereign, the pater familias, exercises full sovereign criminal law jurisdiction (patria potestas), including the power to impose capital punishment, with respect to any family member. But when a criminal act offends some other family, or some member thereof, the problem become an inter-sovereignty matter, or as we would call it today, a problem of International Criminal Law. The sovereigns of the two concerned jurisdictions had to meet and arrange for a noxae deditio, or surrender of the offender to the injured family [43] [44].
Today, International Criminal Law is a body of law attributable to wrongful conduct, which violates international public regulation, and endangers the maintenance of international legal order and peace. The object of the normative prescription of international criminal law is a specific conduct identified as harmful to a given world social and political interest whose protection is deemed to require criminal sanctions on perpetrators and strong enforcement of sanctions by the member states of the world community through collective, cooperative or national action [44] [45].
The following are the characteristics that International Criminal Law has:
1. International Criminal Law is extra national law
2. The object of International Criminal Law is wrongful conduct, which violates international public regulation, and endangers the maintenance of international legal order and peace
3. International regulations of International Criminal Law are norms of Criminal Law with international characteristics
4. Norms and regulations of ICL are directed to punish or enforce specific measure to the perpetrators responsible for the violation of those norms and regulations
5. The subject of International Criminal Law is individuals but not states as defined by International Public Law
States, although they remain the primary subject of international law, are no longer its exclusive subject as they once were. It has been increasingly recognized that individuals may be held responsible for certain conduct. It is no longer believed that states are exclusively the perpetrators of conduct, which breaches International Criminal Law. Individual responsibility derives from international law and is independent of the law of any state. At Nuremberg the International Tribunal held: "Crimes against international law are committed by man, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced [45] [46]".
International Criminal Law is reflected in the convergence of two disciplines: the penal aspects of international law and the international aspects of national criminal law. Moreover, generally, there are two basic types of international criminal law: international agreements, and customary international law. International agreements are technically binding only upon the signatories to such agreements and their nationals. International custom is an evidence of general practice accepted as law.
5. Jurisdiction, admissibility and applicable law of International Criminal Court
Distinction in jurisdiction between the ICC and domestic courts is an another question to be raised here. To determine whether a particular court has jurisdiction to open trials for a particular crime and to sentence a convicted individual, the following principles listed herein should be considered, taking into consideration that the ICC has jurisdiction of specific crimes limited to the most serious crimes of concern to the international community.
The principles to which domestic courts refer to exercise criminal jurisdiction
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Crimes under the jurisdiction of the ICC [47] [48]
· Crime of genocide
· Crimes against humanity
· War crimes
· Crime of aggression
The ICC will exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the ICC will exercise jurisdiction with respect to this crime.
A) Crime of genocide
Genocide is deliberate and systematic destruction of a racial, religious, political, or ethnic group. The word [48] [49] ‘Genocide,’ deriving from the Greek word genos for ‘race,’ ‘nation,’ or ‘tribe,’ and the Latin word cide for ‘killing,’ was coined after events in Europe in 1933-45 in order to present a legal concept to describe the deliberate destruction of large groups [49] [50]. Despite many historical incidents of genocide and the modern case of the massacre of Armenians by the Turks at the outbreak of World War I, there had been no attempt until after World War II to construct a legal framework through which the international community could deal with cases of mass extermination of peoples. Finally, in 1946, under the impact of revelations at the Nuremberg [50] [51] and other war-crimes trials, the General Assembly of the United Nations affirmed that "genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices are punishable." In 1948 the General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide [51] [52].
Genocide is a crime whether it is committed in time of peace or of war. Under the terms of the convention, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
i. Killing members of the group
ii. Causing serious bodily or mental harm to members of the group
iii. Deliberately inflicting on the life conditions of a group the damage calculated to bring about physical destruction of this group in whole or in part iv. Imposing measures intended to prevent births within the group
v. Forcibly transferring children of the group to another group [52] [53]
The objective of such a plan would be the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of national groups, and destruction of personal security, liberty, health, dignity, and even lives of the individuals belonging to such groups.
Genocide is international crime imposing individual responsibility upon its perpetrator who cannot claim the defense of ‘act of state’ or ‘superior orders’. Therefore, perpetrators may be punished whether they are constitutionally responsible rulers, public officials, or private individuals. Moreover, conspiracy, incitement, attempt, and complicity in genocide are also to be punishable. Perpetrators will be tried by a competent tribunal of the state in which the act was committed or by the ICC.
One of the achievements of the Convention has been the establishment of the principle that genocide, even if perpetrated by a government in its own territory, is not an internal matter (‘a matter essentially within the domestic jurisdiction’) but a matter of international concern. Any contracting state may call upon the United Nations to intervene and to take such action, as it considers appropriate for the prevention and suppression of acts of genocide. The Convention, in Article VIII, authorizes any of the contracting parties in such necessary situations to call upon "the competent organs of the United Nations to take such actions under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III." Article VIII has in fact given necessary support to create necessary cooperation between parties to the Convention and the United Nations organs for the prevention of acts of genocide. It should be noted, however, that the article does not extend the powers of the United Nations concerning the question of genocide.
B) Crime Against Humanity
The term ‘Crimes against humanity’ did not exist in official language of international law before the outbreak of World War II, but came into existence in connection with war. ‘Crimes against humanity’ were codified for the first time in the Nuremberg charter and recently have been included in the statutes of the ICTY, the ICTR, the ICC and Draft Code of Crimes against Peace and Security of Mankind [53] [54]. As ‘Crimes against humanity’ do have a strong relationship to war crimes, the subjects matter of both these crimes often overlaps in many situations [54] [55]. However, it should be important to note that the term ‘Crime against humanity’ applies to any human activity, which is committed before or during war, as the scope of the term is not limited to wartime.
In early 1800s when several official statements of European Governments condemned the Turkish Government for brutal massacres of minority Christian populations, the ‘Law’ or ‘Principles of humanity’ was mentioned in their statements. Afterwards, European Powers invaded territory under Ottoman rule in several instances in order to prevent further slaughter of Christian minorities. Referring to this, it has been argued that the laws of humanity form part of international customary law and give rise to a right to one state to intervene militarily on the territory of another state to put a stop to gross violation of human rights against its own nationals. However, it is doubtful that ‘humanitarian intervention’, as it is called now, was ever either sufficiently clear in its concept of the ‘Laws of humanity [55] [56]’ or in its designation of rights and obligations to be a norm of international law [56] [57].
The theory of crimes against humanity strengthens the legal applicability of international criminal law for those acts, which do not come under a particular definition of international crimes in the strict sense of the meaning. This applicability is particularly important when governments against their own nationals in peacetime commit crimes against humanity. It must be emphasized, however, that "in order not to characterize any inhuman act committed by a private individual as an international crime, it was found necessary to provide that such an act constitutes an international crime only if committed by the private individual at the instigation or with the toleration of the authorities of a State [57] [58]". Crimes that fall into the category of ‘Crimes against humanity’ have the following two conditions:
· Firstly, it must be carried out in a systematic manner
· Secondly, it must be committed with the toleration of the authorities of a state.
It is, therefore, clear that acts committed by private individuals in their own capacity and without any complicity form the state authorities do not constitute ‘Crimes against humanity.’ They may simply be considered as, for instance, murder. More importantly, the obligations regarding ‘Crimes against humanity’ are an integral part of international jus cognes. In other words, treaties and the like cannot ignore these obligations. Therefore, they can only be altered by the formation of subsequent rules of customary law, which indicates that modification of the obligations is necessary [58] [59].
According to the Article 7 of the ICC Statute, ‘Crime against humanity’ are the following acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack (Note that ‘attack direct against any civilian population’ is defined as a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.):
i. Murder
ii. Extermination (defined as ‘the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’)
iii. Enslavement (defined as ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’)
iv. Deportation or forcible transfer of population (defined as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’)
v. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
vi. Torture (defined as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused, with an exception in which torture does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’) vii. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity (Note that forced pregnancy is defined as the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.)
viii. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court (defined as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’)
ix. Enforced disappearance of persons (defined as ‘the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time’)
x. The crime of apartheid (defined as ‘inhumane acts of a character committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’)
xi. Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health
Crimes against humanity, like many other crimes, are closely connected with political matters, and, thus, they are often committed as a result of the collective decisions of politicians. Essential reason for the commission of this category of international crime is economic, ideological or political superiority or inequality. The unlimited international legal personality of states is another reason. Thus, the crimes are most frequently committed with collusion of members of the state legal apparatus. However, it should be emphasized that ‘crimes against humanity’ give rise to the international criminal responsibility of individuals as well as states. Therefore, both individuals and states are responsible with regard to criminal prosecution and punishment [59] [60].
C) War Crimes
"War is not a relation of man to man but a relation of state to another state in which individuals are becoming enemies to say incidentally, not as men, not even as citizens, but as soldiers not as members of their countries but as their defenders" [60] [61]. The idea of Rousseau significantly influenced the first major restrictions on warfare, which developed in the second half of the nineteenth and at the beginning of the twentieth century.
The term war crime alludes to the violation of a recognized obligation of the rules of armed conflict, which must be respected by conflicting parties. The term war crime has been difficult to define, but after World War II three categories against the law of nations became generally accepted as such. The first category is ‘crimes against peace.’ It involves preparing for or initiating 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. The second is ‘war crimes’, or violations of the laws or customs of war (or ‘conventional war crimes’). It includes murder, ill treatment, or deportation of the civilian population of occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity. The third is ‘crimes against humanity.’ It includes political, racial, or religious persecution against any civilian population, either before or during a war, and is understood to include War crime offense against the law of war as laid down by international customary law and certain international treaties.
A war crime may be considered a crime against humanity, but this does not necessarily mean that a crime against humanity can be a war crime. For instance, crimes committed against civilian populations in an occupied territory would be classed as war crime. At the same time, such offences may be considered crimes against humanity whereas the civilian population of or in occupied territory is included within the meaning of the phrase ‘any civilian population. The distinction between the two crimes is the timing: crimes committed only up to the end of an armed conflict is regarded as ‘war crimes,’ but ‘crimes against humanity’ range from ones committed in peacetime to ones in wartime.
International criminal law, which seeks to mitigate the effects of war, is traditionally divided in two parts: ‘the Hague Conventions’ and ‘other Rules of Warfare and law of Geneva.’ However, as a result of the development of the rules and customs of war, this traditional division has been blurred and the distinction is no longer clear. Additional Protocol I to the Geneva Conventions, for example, contains both ‘Hague and Geneva’ laws [61] [62].
As ‘the Hague Law’, the fourteen Hague Conventions [62] [63] from 1899 to 1907 and a number of additional conventions and protocols lay down the rules and limitations concerning the choice of weapons, means, and methods of waging wars. They are traditionally applicable only to international armed conflicts, and derive from various sources such as: customary international law, the St. Petersburg Declaration of 1868, the 1899 and 1907 [63] [64], Hague Conventions and Regulations, Geneva Protocol of 1925 [64] [65] banning the use of specific chemical and biological weapons, and certain other conventions which forbid the use of particular weapons and restrict the use of force to military, as opposed to civilian targets. The aim of the Hague law is to codify laws of war in general.
Meanwhile, ‘the Geneva law’ usually refers to the Geneva Conventions of 1864, 1929 and 1949, and the 1977 Protocols Additional to the Geneva Conventions. The four Geneva Conventions of 1949 and the 1977 Additional Protocols give main grounds for Humanitarian law, and set rules for the treatment of the wounded and sick, shipwrecked, prisoners of war, and civilians, in situations of armed conflict.
The obligations of States to ensure respect for the present Conventions in all circumstances are notified within jurisdiction of the ICC, which shall have jurisdiction [65] [66] in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. War crimes under the jurisdiction of the ICC consist of grave breaches of the Geneva Conventions of 12 August 1949, serious violations of the laws and customs within the established framework of international law, and serious violations of article 3 common to the four Geneva Conventions of 12 August 1949.
The following grave breaches of the Geneva Conventions of 12 August 1949 are war crimes under the jurisdiction of the ICC.
i. Willful killing
ii. Torture or inhuman treatment, including biological experiments
iii. Willfully causing great suffering, or serious injury to body or health
iv. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly
v. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power
vi. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
vii. Unlawful deportation or transfer or unlawful confinement
viii. Taking of hostages
Meanwhile, the following serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law are categorized as war crimes under the jurisdiction of the ICC:
i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
ii. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives
iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict
iv. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated
v. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives
vi. Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered at discretion
vii. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury
viii. The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory
ix. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives
x. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons
xi. Killing or wounding treacherously individuals belonging to the hostile nation or army
xii. Declaring that no quarter will be given
xiii. Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war
xiv. Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party
xv. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war
xvi. Pillaging a town or place, even when taken by assault
xvii. Employing poison or poisoned weapons
xviii. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices
xix. Employing bullets, which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions
xx. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123
xxi. Committing outrages upon personal dignity, in particular humiliating and degrading treatment
xxii. Committing rape, sexual slavery, enforced prostitution, forced pregnancy (as defined in article 7, paragraph 2 (f) of ICC Statute), enforced sterilization, or any other form of sexual violence constituting a grave breach of the Geneva Conventions
xxiii. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations
xxiv. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law
xxv. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions;
xxvi. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Regarding an armed conflict that does not have an international character, the following serious violations of article 3 common to the four Geneva Conventions of 12 August 1949 are regarded as war crimes under the jurisdiction of the ICC. It should be noted that the following acts are to be committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other causes:
i. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture
ii. Committing outrages upon personal dignity, in particular humiliating and degrading treatment
iii. Taking of hostages
iv. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees, which are generally recognized as indispensable
Paragraph 2 (c) of ICC Statute, applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
Meanwhile, the following serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, are also considered to be war crimes under the jurisdiction of the ICC:
i. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
ii. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law
iii. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict
iv. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives
v. Pillaging a town or place, even when taken by assault
vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy (as defined in article 7, paragraph 2 (f) of ICC Statute, enforced sterilization, and any other form of sexual violence constituting a serious violation of article 3 common to the four Geneva Conventions
vii. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities
viii. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand
ix. Killing or wounding treacherously a combatant adversary;
x. Declaring that no quarter will be given
xi. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons
xii. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict
Paragraph 2 (e) of ICC Statute applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or among such groups. It is also important to note that nothing in paragraphs 2 (c) and (d) of ICC Statute shall affect the responsibility of a Government to maintain or reestablish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
The main problem that the ICC is facing is the policy of United States of America and several other countries, which did not, signed the ICC Statute at Rome Conference. Those countries are indirectly or directly involved in almost every conflict (and war crimes) in the world. For instance, the second session of the International War Crimes Tribunal held in Roskilde in Denmark from November 20 to December 1 of 1967 concluded that United States of America had committed a number of crimes in Vietnam such as: 1. The use of firepower and bombardment in Vietnam; 2. Direct aggression; 3. The use of napalm and others causing unnecessary suffering; 4. The bombardment in North Vietnam, and the use of search & destroy missions and devastation; 5. The use of chemical warfare, non-lethal gases, and herbicides; 6. The denial of quarter, and the torture and mistreatment of prisoners of war; 7. The use of repressive measure with respect to the civilian population [66] [67]. These actions clearly constitute aggression of crimes against peace, war crime, crimes of unlawful use of weapons, crimes against humanity, genocide, and violations of fundamental principles of humanity in relation to the Vietnamese people. Except an American Army major, no persons were brought to justice on charge of war crimes until today. Furthermore, it should be remembered that Russia, China, U.K., France and others also reserve exclusive rights to waging a war without any punishment and responsibility by using veto power in Security Council of United Nations.
D) Crimes of aggression
The term aggression has been entered into the charter of the United Nations [67] [68]. In practice, it is left to the Security Council to decide, case by case, whether an action of a state constitutes aggression. However, this decision tends to be highly political, and Security Council has rarely explicitly affirmed that an aggression has occurred [68] [69]. Since World War I, most states have accepted the obligations to refrain from the use of force, and held international forums to consider the problem of aggression in hostilities that have occurred. In such cases, the League of Nations and the United Nations have usually followed the procedure for ordering a cease-fire, and have considered a government an aggressor only when it failed to observe that order.
In 1974, General Assembly Resolution 3314 [69] [70] defined ‘aggression,’ and gave some examples in its articles. Article 1 of the resolution concerns the possible definition of the term ‘aggression,’ and is of vital importance for the whole resolution. As is evident from this article, aggression is armed force by one state against another. Therefore, economic, political, ideological and cultural pressures are not considered to constitute aggression [70] [71]. According to Article 2, the first use of arms in contravention of the Charter constitutes prima facie evidence of an act of aggression unless the Security Council finds otherwise in the light of other relevant circumstances, including a case that the acts concerned or their consequences are not of sufficient gravity. Article 3 regards as ‘aggression’ invasion or attack by armed forces of a state, military occupation, bombardment against the territory of another state, blockade of ports or coasts, action of a state in allowing its territory to be used for preparing an act of aggression against a third state, and the sending of armed bands, groups, irregulars, or mercenaries to carry out acts of armed force against another state.
The use of force is prohibited by article 2 (4) of the resolution as well as other General Assembly resolutions, notably Resolution 2625 of 1970 (Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations). Article 2(4) says "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." However, it should be noted that this article does not prohibit the use of force for the purpose of self-defense in the case of an armed attack.
Aggression exists as a crime under international criminal law. It is an international crime, and should be subject to criminal responsibility as such. In terms of international relations, ‘aggression’ is an act or policy of expansion carried out by one state at the expense of another by means of an unprovoked military attack. In terms of international law, meanwhile, as Article 1 of General Assembly Resolution 3314 defined, ‘aggression’ is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. In other words, ‘aggression’ means any use of armed force unjustifiable from the perspectives of defensive necessity, international authority, or consent of the state in which force is used in international relations.
The following are acts of aggression specified in Article 3 of General Assembly Resolution of 3314.
i. The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting form such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof
ii. Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by State against the territory of another State
iii. The blockade of the ports of coasts of a State by the armed forces of another State
iv. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State
v. The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement
vi. The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State
vii. The sending by or on behalf of a State armed bands, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. It is important to note that the ICC Statute does not define ‘aggression.’ Therefore, to find the acceptable definition of ‘crimes of aggression’ is a primary objective of Preparatory Commission, which is to continue work after ‘Rome Conference.’
7. General principles of criminal law
General principles of criminal law describe the conditions under which a person is held criminally responsible for a specific action, and the principles concerning the exoneration of such a responsibility. These general principles are what national legal system calls as ‘general part’ of a statute whereas definition of crimes corresponds to what national legal system usually refers to as the ‘special part.’ Such a general part is needed to satisfy the principles of legality, and must be set up in accordance with the requirements of the world's major criminal justice systems [71] [72].
The following legal issues are addressed in the Statute of International Criminal Court as general principles of criminal law:
A) Non bis in idem
The principle non bis in idem [72] [73] aims at preventing a person form being tried and punished for the same crime twice [73] [74]. Except as provided in Article 20 in the ICC Statute, no person shall be tried before the ICC with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the ICC. In several cases, the ICC reserves an exclusive right to prosecute suspects for crimes that fall into the jurisdiction of the ICC. One of the instances is a case in which a trial was not held either independently or impartially in accordance with the norms of due process recognized by international law, but in a manner inconsistent with an intent to bring the person concerned to justice.
B) Nullum crimen sine lege
The concept of nullum crimen sine lege is considered fundamental to any legal system. According to this concept, an action is punishable only when law stipulates it as punishable prior to its commission. In terms of the ICC jurisdiction, this means that punishment occurs only if the act already constitutes a crime, at the time of its commission, under the ICC Statute, customary international law or national law in accordance with international law. This principle requires that crimes should be defined with clarity and precision [74] [75]. The main purpose of the principle is to protect the accused from being punished for a conduct, which was not punishable at the time of commission, or for a conduct, which the individual could not know clearly enough that, it was punishable. According to the ICC Statute, person shall not be criminally responsible unless the conduct in question constitutes a crime within the jurisdiction of the Court at the time it takes place. Article 11 (2) of the Universal Declaration provides:
“No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”
C) Non-retroactivity
There is a substantive link between the concept of nullum crimen sine lege and the concept of non-retroactivity although these two are not identical. Non-retroactivity means that an individual may not be punished for an action that was not designated a crime at the time it was carried out [75] [76]. Based on this principle, hence, the ICC applies only to crimes committed after the entry into force of the Statute, thus requiring a given number of ratification by State parties [76] [77].
D) Criminal responsibility
Criminal responsibility is not limited only to those who perform the criminal acts themselves. As a general principle, anyone who ‘aids and abets’ the perpetrator by encouraging or by knowingly helping him in any way (for instance, by providing information, implements, or practical help) is an accomplice, and is considered equally guilty.
Criminal responsibility refers to the perpetrators’ liability for a crime. There are three questions that should be answered to establish general criminal responsibility:
· How old is a person who is criminally responsible?
· Does the criminal responsibility apply only to individuals or to institutions as well?
· Are there any accomplices who are criminally responsible in addition to the principal perpetrators?
The ICC shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime [77] [78]. However, the Court has jurisdiction over natural persons [78] [79] if he/she is over 18 years old, and an individual is the subject of International Criminal Law [79] [80]. When the Court refers to ‘individual criminal responsibility,’ it means that a person who commits a crime under the Statute (including act of planning, instigating, and assisting the person who actually commits the crime) is individually responsible and liable for punishment. Thus, criminal responsibility is per se individual and cannot go beyond the person and his/her possessions. It should be noted, however, that individual criminal responsibility is to be questioned in the case of institutions because individuals indeed control institutions. Moreover, participants in crimes and a person who commands actions are to be questioned as well under the Statute because criminal responsibility ranges over principal perpetrators. Those types of criminal responsibilities are commonly accepted not only by the Statute but also by international law. In terms of criminal responsibility of principals, those who commit a crime individually or jointly with the mental element required for the crime shall be liable for punishment as principals. A person could also be deemed as a principal if he/she commits a crime through an innocent who is not aware of the criminal nature of the act conducted.
E) Actus reus
It is generally agreed that one of the essential ingredients of crime is a voluntary acts or omission (actus reus). Actus reus is physical elements of crime - the conduct for which a person is criminally responsible and liable for punishment. The principle of actus reus is incorporated into definitions of the crimes in the Statute of the ICC [80] [81]. However, it should be made clear that a person is criminally responsible only if the harm is caused by the perpetrator's conduct.
F) Mens rea
A mental element is required to establish criminal responsibility for a crime under the International Criminal Law. Person shall be criminally responsible and liable for punishment only if the mental elements contain intent and knowledge. The intent exists when a person engaged in the conduct intentionally causes the consequence or when he/she is aware that the consequence will occur in the ordinary course of events. The knowledge exists when there are circumstances under which a person engaged in the conduct can be aware that the consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ in the ICC Statute shall be construed accordingly [81] [82].
G) Mistake of fact and of law
If a person is not aware of the facts that his/her conduct constitutes an offence at the time of conduct, it is called mistake of fact. In the case of mistake of fact, conducts are not punishable. However, mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime [82] [83]. Meanwhile, mistake of law means that a person commits crime in the mistaken belief that he/she is acting lawfully although he/she is aware of the facts that his/her conduct constitutes an offence. In this case, conducts are punishable. Besides, mistake of law shall not be a ground for excluding criminal responsibility. However, it may be a ground for excluding criminal responsibility if it negates the mental element required by such a crime [83] [84]
H) Self Defense and Defense of Others
According to the Article 31 (c) of the ICC Statute, ‘defense’ is defined as follows: the person acts reasonably to defend himself/herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. As stipulated in the Statute, if a person acts against imminent unlawful force in the reasonable belief that force is necessary, and if force is used in proportion to the degree of danger involved, he/she is not criminally responsible. However, it should be noted that the fact that the person was involved in a defensive operation conducted by forces should not in itself constitute a ground for excluding criminal responsibility.
I) Presumption of innocence
Presumption of innocence is the basic principle of both Anglo-American and continental procedures. Under this principle, the defendant is to be presumed innocent unless and until his guilt has been established beyond a reasonable doubt [84] [85]. On the Continent, therefore, the burden of proof rests upon the prosecution even in cases involving insanity, drunkenness, self-defense, or necessity. Meanwhile, Anglo-American law requires the defendant to provide at least some evidences that they were factors [85] [86], and calls this ‘affirmative defense.’
Concerning the evaluation of evidence presented, courts in continental legal systems are not bound by any legal rules. Rather, courts are to follow their conscience in establishing guilt or innocence. The same applies on the Anglo-American jury system. However, there is a complicated set of legal rules determining what evidence can be presented to juries since juries are thought to be easily distracted from the real issues of the case.
The presumption of innocence grants to the accused a variety of rights at different stages of the proceedings, including the right to remain silent and the right to refuse to testify whatever may suggest any guilt either before investigators or in court. Particularly important is the right of the accused pending trial. He/She must be allowed full facilities in preparing his/her defense, and there are normally safeguards provided to protect him/her from being detained unjustifiably before trial. Some systems even require the order and the authorization of a magistrate in order to detain the accused just for a limited period. In the case where the commanding officer of the accused is empowered to authorize the arrest, the commanding officer is likely obliged to report frequently the progress of the case at specified intervals to higher authority because the needs to detain the accused must be constantly monitored.
The ICC Statute incorporates the principle of ‘presumption of innocence, which all countries maintain, into Article 66 as follows: everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt [86] [87].
8. Investigations and prosecution [87] [88]
The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under the ICC Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:
· The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
· The case is or would be admissible under article 17 [88] [89]; and
· Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
If the Prosecutor determines that there is no reasonable basis to proceed solely based on subparagraph (c) above, he/she shall inform the Pre-Trial Chamber. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because of the following three reasons, he/she shall inform the Pre-Trial Chamber and the State making a referral under article 14 [89] [90], or the Security Council in a case under article 13 [90] [91], of his/her conclusion and the reasons for the conclusion:
· There is not a sufficient legal or factual basis to seek a warrant or summons under article 58 [91] [92];
· The case is inadmissible under article 17; or
· A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.
At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed, and may request the Prosecutor to reconsider that decision. In addition, the Pre-Trial Chamber may, on its own initiative, review the decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, therefore, the decision of the Prosecutor shall be effective only if it is confirmed by the Pre-Trial Chamber. Meanwhile, the Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information [92] [93].
In order to establish the truth, the Prosecutor shall extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the ICC Statute, and, in doing so, investigate incriminating and exonerating circumstances equally. At the same time, he/she shall take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court. Moreover, particularly in a case involving sexual or gender violence, and violence against children, the Prosecutor shall take into account the nature of the crime, and fully respect the rights of persons arising under the Statute, or the interests and personal circumstances of victims and witnesses, including age, health, gender as defined in article 7, paragraph 3 [93] [94].
In investigating, the Prosecutor may collect and examine evidence, request the presence of and question persons being investigated, victims and witnesses, seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate, enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person, agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents and take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence [94] [95].
It should be noted that, according to the Statute of the ICC, the Prosecutor is not independent and free in his action because no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect [95] [96]. It is equally important to note that this request may be renewed by the Council under the same conditions [96] [97].
9. Applicable penalties
During the sessions of Prep. Com., two different options were discussed in terms of applicable penalties:
· To create a general penalty system applicable to all crimes under the jurisdiction of the ICC; and
· To create provisions for each single category of offences.
The first option prevailed as a result since the second option was basically understood that it would meet the needs of equitable punishment for only two different categories of criminal acts. At present [97] [98], the ICC Statute contains two main penal sanctions under the Article 77. The ICC may impose one of the following penalties on a person convicted of a crime:
· Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
· A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
The ICC may order in addition to imprisonment a fine under the criteria provided for in the Rules of Procedure and Evidence and a forfeiture of proceeds, property and assets derived directly or indirectly from the crime, without prejudice to the rights of bona fide third parties.
10. International cooperation and judicial assistance among International Criminal Court, States, and other international organizations
The ICC will depend upon the cooperation of the national judiciary. In its Commentary to the part on “state cooperation” in the Draft Statute, the ILC made reference to the ad hoc Tribunal for former Yugoslavia (ICTY) [98] [99]. The ad hoc Committee also made reference to ICTY [99] [100]. Moreover, the 1994 ILC Draft clearly stated that "the effective functioning of the Court will depend upon the international cooperation and judicial assistance of States". Despite of this firm conviction, however, the ILC could not provide the ICC with an absolute legal obligation for cooperation of all the member States of the United Nations as in the case of ICTY [100] [101]. This difference was resulted from the fact that the ILC envisaged the ICC to be established by multilateral treaty while ICTY was established on the basis of Chapter VII of the UN Charter [101] [102] without all legal basis. Just by becoming a party to the Treaty, therefore, States do not have to automatically submit themselves to the ICC regime as stringent as in the case of ICTY. According to Article 87 of the ICC Statute, the ICC shall have the authority to make requests to States Parties for cooperation. It is important to note that the requests for cooperation are to be transmitted, unlike the case of ICTY, through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. When appropriate, requests for cooperation may be transmitted also through the International Criminal Police Organization or any appropriate regional organization.
Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or in one of the working languages of the ICC, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. After receiving the request, the requested State shall keep confidential the request, except to the extent that the disclosure is necessary for execution of the request. Meanwhile, in transmitting any request for assistance, the ICC may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families.
The ICC may invite any State Not Party to this Statute to provide assistance on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate arrangements. Where a State Not Party to this Statute, which has entered into an ad hoc arrangement or an agreement with the ICC, fails to cooperate with requests pursuant to any such arrangement or agreement, the ICC may inform the Assembly of States Parties, or the Security Council when the matter is referred the Security Council. In addition to State Not Party, the ICC may ask any intergovernmental organizations to provide information or documents. In this case, the ICC may ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.
Where a State Party fails to comply with a request to cooperate with the ICC contrary to the provisions of the Statute, thereby preventing the ICC from exercising its functions and powers under the Statute, the ICC may make a finding to that effect and refer the matter to the Assembly of States Parties, or the Security Council when the matter is referred to the Security Council.
11. International Criminal Police Organization
INTERPOL byname of INTERNATIONAL CRIMINAL POLICE ORGANIZATION is an organization that exists to facilitate the cooperation of the criminal police forces of more than 125 countries in their fight against international crime. The aims of the organization are to promote the widest possible mutual assistance among all the criminal police authorities of the affiliated nations within the limits of the laws existing in those countries and to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary crime. A General Secretariat [102] [103] headed by a General Secretary controls the everyday workings of Interpol.
Each affiliated country has a domestic clearinghouse (called the National Central Bureau, or NCB) through which its individual police forces may communicate either with the general secretariat or with the police of other affiliated countries. Although television and motion pictures have portrayed Interpol agents as wandering from country to country, making arrests wherever they please, such representations are false. Because states have various legal systems, and their criminal laws, practices, and procedures differ substantially from one another, no sovereign state would permit any outside body to bypass its police or disregard its laws. The main weapon in the hands of Interpol, therefore, is not a universal detective but the extradition treaty.
The principal target of Interpol is international criminals, who are to fall into the following main three categories:
i. Those who operate in more than one country in dealing mainly in gold, narcotics and other illicit drugs - for instance, smugglers;
ii. Those who do not travel at all but whose crimes affect other countries - for example, a counterfeiter of foreign bank notes; and
iii. Those who commit a crime in one country and flee to another.
At its headquarters in Lyon, France, Interpol maintains voluminous records of international criminals and others who may later fall into that category. The records contain various information such as particulars of their identities, aliases, associates, and methods of work, and all those information are to be gathered through Interpol telecommunications network or confidential circular from the police of the affiliated countries.
As for confidential circular, there are four types. The first type asks for the detention of a particular criminal in order that the extradition proceedings can be started. The second does not ask for detention but gives full information about the criminal and his methods. The third describes property that may have been smuggled out of the country in which a crime was committed. A fourth deals with unidentified bodies and attempts to discover their identity.
Interpol began in Europe, which is not surprising since many countries of Europe have common frontiers, and a criminal can, for example, be in one of four other countries within an hour after having committed a crime in Belgium. After World War I, there was a great increase in crime. One of the countries most affected was Austria, and the Viennese police president, Johann Schober [103] [104], obtained his government's support in 1923 to call for strong cooperation with representatives of the criminal police in other countries. The representatives of 20 nations met to discuss the problems facing them, and the International Criminal Police Commission was formed that year. Thus, Vienna was the home of its first headquarters, and Schober became its first president. From 1923 until 1938, the commission flourished. In 1938, however, the Nazis seized Austria and Interpol altogether, and all of the records were taken to Berlin. The outbreak of World War II brought Interpol's activities to a standstill. After World War II, the French government offered Interpol a headquarters in Paris, together with a staff for the general secretariat consisting of French police officials. This offer was gratefully accepted, and Interpol thus revived. However, Interpol required complete reorganization since all its prewar records had been lost or destroyed.
Afterwards, Interpol rebuit itself, and grew successfully. For 9 years since 1946, the number of affiliated countries had increased to 55 from 19. A modern and complete constitution for the organization was ratified in 1956, and its name was changed to the International Criminal Police Organization under the new constitution. The organization continued to progress, and by the mid-1980s the number of affiliated countries had risen to more than 125, representing all the continents of the world. Today, Interpol could act only in those territories or regions where international laws applied. Depending on the determination which crime is declared as international, Interpol could have jurisdiction both ratione loci and ratione materiae.
12. Important conventions and documents
(I)
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951.
The Contracting Parties,
Having considered the declaration made by UNGA in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,
Hereby agree as hereinafter provided:
Article 1
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article 2
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article 4
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article 5
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.
Article 6
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Article 7
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Article 8
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.
Article 9
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Article 10
The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.
Article 11
The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any nonmember State to which an invitation to sign has been addressed by the GA.
The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State, which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 12
Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.
Article 13
On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proces-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article 11.
The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.
Any ratification or accession effected, subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.
Article 14
The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.
It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.
Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.
Article 15
If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.
Article 16
A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The GA shall decide upon the steps, if any, to be taken in respect of such request.
Article 17
The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:
(a) Signatures, ratifications and accessions received in accordance with article 11;
(b) Notifications received in accordance with article 12;
(c) The date upon which the present Convention comes into force in accordance with article 13;
(d) Denunciations received in accordance with article 14;
(e) The abrogation of the Convention in accordance with article 15;
(f) Notifications received in accordance with article 16.
Article 18
The original of the present Convention shall be deposited in the archives of the United Nations.
A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.
Article 19
The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.
II
Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946).
In order to give effect to the terms of the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal,
the Control Council enacts as follows: . . .
Article II
1. Each of the following acts is recognized as a crime:
a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging 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.
b) War Crimes. Atrocities or offences against persons or property, constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labour or for any other purpose of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. . . .
III
Convention on the Non-Applicability of Statutory Limitations to War Crimes and CrimesAgainst Humanity, G.A. res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. A/7218 (1968).
PREAMBLE
The States Parties to the present Convention,
Recalling resolutions of the General Assembly of the United Nations 3 (I) of 13 February 1946 and 170 (II) of 31 October 1947 on the extradition and punishment of war criminals, resolution 95 (I) of 11 December 1946 affirming the principles of international law recognized by the Charter of the International Military Tribunal, Nuremberg, and the judgement of the Tribunal, and resolutions 2184(XXI) of 12 December 1966 and 2202(XXI) of 16 December 1966 which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other,
Recalling resolutions of the Economic and Social Council of the United Nations 1074 D (XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of war criminals and of persons who have committed crimes against humanity,
Noting that none of the solemn declarations, instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation,
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,
Have agreed as follows:
Article 1
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the ‘grave breaches’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.
Article 2
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.
Article 3
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.
Article 4
The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles 1 and 2 of this Convention and that, where they exist, such limitations shall be abolished.
Article 5
This Convention shall, until 31 December 1969, be open for signature by any State Member of the United Nations or member of any of its specialized agencies or of the International Atomic Energy Agency, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention.
Article 6
This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 7
This Convention shall be open to accession by any State referred to in article 5. Instruments of accession shall be deposited with the Secretary- General of the United Nations.
Article 8
1. This Convention shall enter into force on the ninetieth day after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the tenth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day after the date of the deposit of its own instrument of ratification or accession.
Article 9
1. After the expiry of a period of ten years from the date on which this Convention enters into force, a request for the revision of the Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.
Article 10
1. This Convention shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States referred to in article 5.
3. The Secretary-General of the United Nations shall inform all States referred to in article V of the following particulars:
(a) Signatures of this Convention, and instruments of ratification and accession deposited under articles 5, 6 and 7;
(b) The date of entry into force of this Convention in accordance with article 8;
(c) Communications received under article 9.
Article 11
This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 26 November 1968.
IN WITNESS WHEREOF the undersigned, being duly authorized for that purpose, have signed this Convention
12.(IV) Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. res. 3074 (XXVIII), 28 U.N. GAOR Supp. (30A) at 78, U.N. Doc. A/9030/Add.1 (1973).
The General Assembly,
Recalling its resolutions 2583 (XXIV) of 15 December 1969, 2712 (XXV) of 15 December 1970, 2840 (XXVI) of 18 December 1971 and 3020(XXVII) of 18 December 1972,
Taking into account the special need for international action in order to ensure the prosecution and punishment of persons guilty of war crimes and crimes against humanity,
Having considered the draft principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity,
Declares that the United Nations, in pursuance of the principles and purposes set forth in the Charter concerning the promotion of co-operation between peoples and the maintenance of international peace and security, proclaims the following principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity:
1. War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.
2. Every State has the right to try its own nationals for war crimes against humanity.
3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.
4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them.
5. Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the countries in which they committed those crimes. In that connection, States shall co-operate on questions of extraditing such persons.
6. States shall co-operate with each other in the collection of information and evidence which would help to bring to trial the persons indicated in paragraph 5 above and shall exchange such information.
7. In accordance with article 1 of the Declaration on Territorial Asylum of 14 December 1967, States shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity.
8. States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment-of persons guilty of war crimes and crimes against humanity.
9. In co-operating with a view to the detection, arrest and extradition of persons against whom there is evidence that they have committed war crimes and crimes against humanity and, if found guilty, their punishment, States shall act in conformity with the provisions of the Charter of the United Nations and of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
