A A Beginners Guide to International Criminal Law

Analysis

to International Criminal Law

Christopher Gevers

What is international criminal law?

The term international criminal law is used to describe the body of norms that govern the prosecution
of international crimes by both domestic and international courts. Today, international criminal law
is one of the most highly developed fields of international law and a key feature of both international
and domestic politics. Its rise to prominence is testament to the global communitys commitment
to combating impunity for the most serious human rights violations and atrocities.

What are international crimes?

The three core international

crimes are war crimes, crimes
against humanity and genocide.

Christopher Gevers teaches
international law and human
rights at the University of
KwaZulu-Natal, South Africa.
He studied at the University
of KwaZulu-Natal and the
London School of Economics
and Political Science and
has previously worked for
Amnesty International and the
International Crisis Group.
War crimes are serious
violations of international hu-
manitarian law that take place
during armed conflicts. They
include (amongst others): the
unlawful targeting of civilians
and those wounded during
the course of hostilities; the
severe mistreatment of both
soldiers and civilians (torture,
etc.); the use of prohibited
methods of warfare such as
the excessive use of force,
the use of human shields and
hostage-taking; and the use of
prohibited means of warfare
(such as weapons that cause
unnecessary suffering).
Crimes against humanity
were initially introduced to
cover atrocities committed
against the civilian
population in times of
armed conflict. Today, they
include certain inhumane
acts committed as part of
a widespread or systematic
attack against a civilian
population, whether in a
time of peace or armed
conflict. These inhumane
acts include murder, torture,
sexual violence, deportation,
enslavement and
enforced disappearances,
amongst others.
Similarly, the crime of
genocide involves the
commission of certain
inhumane acts, namely:
killing, causing serious bodily
or mental harm, deliberately
inflicting conditions of life
calculated to bring about
the destruction of a group,
measures intended to prevent
birth, and forcibly transferring
children from one group to
another. However, in order to
qualify as genocide, these acts
must be committed with the
intention to destroy a national,
religious, ethnic or racial
group in whole or in part.

11
These three core international crimes are
currently prosecuted by the International
Criminal Court (ICC) as well as numerous
domestic courts where the states
have adopted legislation providing for
such prosecutions.
Subject to the entry into force of an
amendment to its founding statute, the
ICC will also be able to prosecute the crime
of aggression as of 2017. According to that
amendment, an act of aggression is defined
as the use of armed force by one state
against another state such as launching
an invasion or attack, blockading ports,
or sending armed groups or mercenaries
which, by its character, gravity and
scale, constitutes a manifest violation
of the Charter of the United Nations.
The individuals who are responsible for
the planning, preparation, initiation or
execution of acts of aggression will be guilty
of the crime of aggression.
In addition, there is support for
expanding the list of international crimes
to include torture, terrorism and grand
corruption. However, while the four
abovementioned crimes are undoubtedly
crimes under customary international
law, and therefore universally outlawed,
there remains some doubt about the
customary character of other putative
international crimes.
12
How is international criminal
law enforced?
International criminal law is enforced by
both domestic and international courts.
The first international prosecution of
these crimes took place after World War
II, when the International Military Tribunal
at Nuremburg was established by the Allied
powers (Britain, France, the United States
and Russia) in 1945 to try the major war
criminals of the European Axis for viola-
tions of the laws of war, crimes against the
peace and crimes against humanity.1 The
Nuremberg trial had a profound effect on
the development of international criminal
law. In fact, many people believe it repre-
sents the birth certificate2 of the discipline.
It was followed in 1946 by the International
Military Tribunal at Tokyo, set up for the
just and prompt trial and punishment of
the major war criminals in the Far East. 3
The unanimity that existed in the
aftermath of World War II dissipated as
the Cold War set in. As a result, the next
international courts were only established
nearly half a century later when the United
Nations Security Council created two ad
hoc tribunals to prosecute international
crimes committed in the former Yugoslavia
(the ICTY) and during the 1994 Rwandan
genocide (the ICTR). These ad hoc tribunals
were established by the Security Council
acting under Chapter VII of the UN
Charter, which tasks the Council with the
maintenance of international peace and
security. Then, in 1998, states adopted the
Rome Statute of the International Criminal
Court (ICC), which established the first
permanent international court for the
prosecution of international crimes.
Brief mention must also be made of
the hybrid tribunals that emerged in the
late 1990s, such as the Special Court for
Sierra Leone, the Extraordinary Chambers
in the Courts of Cambodia and the Special
Tribunal for Lebanon. These courts are
neither purely domestic nor international
rather their founding documents,
jurisdiction, composition and funding are
a mixture of the two.
The enforcement of international
criminal law by international courts is usually
given more media and scholarly attention
than the domestic prosecutions of these
crimes. As a result, many see international
criminal justice as justice delivered by
international courts. 4 However, this
underestimates the importance of domestic
prosecutions in both the development of
the field and its enforcement. The fact is
that for much of the 20th century in the
absence of an international enforcement
mechanism for international crimes
international criminal law was primarily
the concern of domestic courts. The four
1949 Geneva Conventions, for example,
contain a provision setting out an obligation
on states, through their domestic courts,
to either prosecute individuals alleged to
have committed or ordered the commission
of grave breaches of the Conventions (i.e.
war crimes) or extradite such persons to
another state willing to do so. 5 Similarly,
the 1948 Genocide Convention contains a
provision stating that individuals charged
with committing genocide shall be tried
by a competent tribunal of the State in the
territory of which the act was committed
or by an international court such as the ICC.
Even with the resurgence of international

prosecutions, and the establishment of a
permanent international court (the ICC),
domestic prosecutions remain essential to
the enforcement of international criminal
law. In fact, under the ICCs principle of
complementarity, domestic courts remain
the preferred forum for delivering justice
for international crimes.
In order to facilitate these national
prosecutions, international law has evolved
to allow states to exercise universal
jurisdiction over individuals accused
of international crimes. Traditionally,
the ability of the states to prosecute
and punish crimes (i.e. exercise criminal
jurisdiction) was limited to crimes that take
place within their borders. The exercise
of criminal jurisdiction by a state over
events that take place outside its borders
was limited to circumstances where there
was some other link between the state and
the crime in question: such as when the
accused or the victim of the crime was a
citizen of that state. However, under the
principle of universal jurisdiction, states
can exercise criminal jurisdiction based
solely on the nature of the crime, without
regard to where the crime was committed,
the nationality of the alleged or convicted
perpetrator, the nationality of the victim, or
any other connection to the state exercising
such jurisdiction.6
While the exercise of universal
jurisdiction remains contested by some,
a growing number of states accept it
as a basis for exercising jurisdiction, at
least in principle, over war crimes, crimes
against humanity and genocide. Since
the entry into force of the Rome Statute
in 2002, a number of states (including
South Africa) have adopted implementing
legislation providing for the exercise of
universal jurisdiction provisions over
international crimes by their domestic
courts. Furthermore, the existence of such
jurisdiction is supported by the Preamble
to the Rome Statute which: [a]ffirms that
the most serious crimes of concern to the
international community as a whole must
not go unpunished and that their effective
prosecution must be ensured by taking
measures at the national level and by
enhancing international cooperation....
A Beginners Guide to International Criminal Law
What is the International
Criminal Court?
The ICC is the culmination of efforts that
began well over a century ago in 1872 when
Gustave Moynier (one of the founders of
the International Committee of the Red
Cross) proposed the establishment of an
international tribunal to punish violations
of the Geneva Convention of 1864.7
Following the atrocities committed during
World War II, and the successful trials at
Nuremburg and Tokyo, the UN General
Assembly passed a resolution calling on
the International Law Commission (ILC)
to study the desirability and possibility
of establishing an international judicial
organ for the trial of persons charged with
genocide or other crimes.8
However, the Commissions work stalled
in 1954 and was only formally revived in
1989, when the UN General Assembly once
again asked the Commission to address the
issue. As a result, in 1994 the ILC completed
a draft of what would become the Rome
Statute. This led the General Assembly to
convene the UN Diplomatic Conference of
Plenipotentiaries on the Establishment of
a Permanent International Criminal Court
in Rome from 15 June to 17 July 1998 to
negotiate and agree the final text of a treaty
establishing a permanent international
court. At the end of this marathon meeting,
120 states adopted the Rome Statute of the
International Criminal Court.9 Senegal was
the first state to ratify the Rome Statute,
which entered into force on 1 July 2002.
Under the Rome Statute, the ICC is
tasked with prosecuting genocide, crimes
against humanity and war crimes. A state
that becomes party to the Rome Statute
authorises the ICC to exercise jurisdiction
over these crimes when they are committed
by their nationals or on their territory. The
ICCs jurisdiction can then be triggered
either by that state or by another state
that is party to the Rome Statute, or by
the Prosecutor acting on his own initiative
(with the authorisation of the ICC Judges).
For example, having ratified the Rome
Statute in June 2002, Uganda referred
the situation in the north of the country to
the Court in December 2003. Meanwhile,
the Democratic Republic of Congo (DRC)
became a party to the Rome Statute in April
2002 and two years later the government
triggered the exercise of jurisdiction over
its territory by asking the Prosecutor to
investigate crimes within the jurisdiction
of the ICC allegedly committed in the DRC
since the entry into force of the Statute. The
first case to be triggered by the Prosecutor
on his own accord related to the 2008 post-
election violence in Kenya.
There are two additional ways that
the ICC can exercise jurisdiction when
the state concerned is not a party to the
Rome Statute.
Firstly, a state that is not party to the
Rome Statute can lodge a declaration
with the Court accepting its exercise of
jurisdiction over a particular situation.
This happened in the case of Ivory Coast,
which lodged a declaration with the ICC in
April 2003 accepting the Courts exercise
13
 The principle ensures that the unwilling or unable to prosecute the
offender domestically. This principle

ICC reinforces the criminal justice
systems of states at a national level,
as well as the broader system of
international criminal justice.
of jurisdiction over acts committed on its
territory since September 2002. Notably,
the Palestinian Authority has attempted
to lodge a similar declaration in respect
of the crimes committed in Gaza, but the
Prosecutor is yet to rule on whether it can
be considered a state for these purposes.
The second is when the UN Security
Council refers a situation to the ICC for
investigation and possible prosecution,
acting under Chapter VII of the UN
Charter. The Council has done so on two
occasions: the first was in March 2005
when the Council passed Resolution 1593
referring the situation in Darfur (Sudan) to
the ICC, while the second was in February
2011 when the Council passed Resolution
1970 referring the situation in Libya to
the ICC. The role given to the Security
Council to refer matters to the ICC and
defer proceedings for a period of one year
is extremely controversial, particularly
among African states that see the Council
as unrepresentative. This role is the result
of a political compromise between the
states that negotiated the Courts founding
treaty in Rome in 1998, which had divergent
interests and very different views on the
legitimacy of the Security Council and its
role in maintaining international peace
and security. One might add that the role
the Council plays under the final Statute is
significantly diminished, not least because
of the efforts of African states in Rome.
Nevertheless, the fact that the Council plays
any role in the Courts functioning remains
a central concern for African states, which
has been exacerbated by the fact that the
Council has so far only used this power to
refer African States to the ICC.
Crucially, just because the ICC has
jurisdiction over an international crime
does not automatically mean that it will
prosecute the individuals concerned. This
is because at the heart of the Rome Statute
is the principle of complementarity, in
terms of which the ICC will only prosecute
an individual if the state concerned is
reflected within Articles 1 and 17, as well
as the Preamble to the Rome Statute is
a novel idea. Effectively, it affords states
primary jurisdiction over international
crimes committed within their jurisdiction.
The principle ensures that the ICC
reinforces the criminal justice systems of
states at a national level, as well as the
broader system of international criminal
justice. The principle proceeds from the
belief that national courts should be the first
to act. Aside from assuaging the concerns of
states over the potential usurpation of their
national sovereignty, the principle carries
with it other important consequences,
such as recognition of: the need for full
participation by victims; the practicality
of local prosecutions; and, the practical
limitations of a court with potentially
universal jurisdiction.
In order to give effect to the principle
of complementarity, a number of states
have amended their laws to allow for the
prosecution of core international crimes
within domestic courts. From an African
perspective, South Africa, Kenya, Uganda,
Burkina Faso and Senegal have all done
so either through specialised Acts of
Parliament or through amendments to their
criminal codes. A number of other countries
are also in the process of doing so.

E
Endnotes

1. Article 1, International Military Tribunal (1945)

2. Werle, Principles of international criminal law, 6
3. Article 1, International Military Tribunal for the Far East Charter (1946)
4. Jessberger, International v. National Prosecutions of International Crimes, in A Cassese (ed), The Oxford companion to international
criminal justice, Oxford: Oxford University Press, 2009, 208
5. Article 49 Geneva Convention I; article 50 Geneva Convention II; Article 129 Geneva Convention III; and article 14
6. Geneva Convention IV6 Principle 1 (1), The Princeton Principles on Universal Jurisdiction (2001)
7. G Moynier, Note sur la cration dune institution judiciaire internationale propre prvenir et rprimer les infractions la Convention de
Genve, Bulletin international des Socits de secours aux militaires blesss, Comit international 11 (1872), 122
8. General Assembly Resolution 260 B. (III) (9 December 1948)
9. Seven voted against the final text, with 21 abstentions

14