International Criminal Law: Global Reach And Application

International Criminal Law (ICL) is a body of public international law that establishes individual criminal responsibility for international crimes, such as war crimes, crimes against humanity, genocide, and aggression. The exact definition of an international crime is debated, but it is usually understood as an act that violates the fundamental interests of the international community and entails individual criminal responsibility. ICL is practiced by and prosecuted within international criminal tribunals, which can be permanent or ad-hoc. The International Criminal Court (ICC) is the only permanent tribunal in the world, with a mandate to investigate and prosecute cases worldwide. Ad-hoc tribunals, on the other hand, deal with specific national and international conflicts and the crimes committed by the armed parties involved.

International Criminal Court (ICC)

The International Criminal Court (ICC) is an intergovernmental organisation and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals for genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC is distinct from the International Court of Justice, which is an organ of the United Nations that hears disputes between states.

The ICC was established in 2002 pursuant to the multilateral Rome Statute. It is governed by an international treaty called the Rome Statute, which grants the ICC jurisdiction over four main crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC is designed to complement, not replace, national criminal systems; it can only exercise its jurisdiction when national courts are unwilling or unable to prosecute such crimes.

The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The President is the most senior judge chosen by the eighteen judges in the Judicial Division. The Judicial Division is composed of eighteen judges and hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor, who investigates crimes and initiates criminal proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defence office.

The ICC has eighteen judges, each from a different member country and elected by the member states. The court requires its members to seek a gender-balanced bench, and the judiciary must include representatives of each of the United Nations' five regions. Judges and prosecutors are elected to non-renewable nine-year terms. The President and two vice presidents of the court are elected from among the judges.

The ICC has jurisdiction over four categories of crimes under international law:

• Genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or religious group, as such.
• War crimes, including grave breaches of the laws of war under the Geneva Conventions and serious violations under customary international law, such as torture, taking of hostages, willfully causing great suffering, intentionally attacking civilian populations as such, attacking undefended civilian property, schools, historic monuments, or hospitals, using starvation of civilian populations as a method of warfare, or using child soldiers.
• Crimes against humanity, or violations committed as part of a large-scale attack against any civilian population, including murder, rape, unjust imprisonment, slavery, persecution, torture, or apartheid.
• Crimes of aggression, where a political or military leader plans or executes the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or in any other manner inconsistent with the UN Charter.

The ICC can open an investigation into possible crimes in one of three ways: a member country can refer a situation to the prosecutor; the UN Security Council can refer a situation; or, with the approval of pretrial ICC judges, the prosecutor can launch an investigation proprio motu, or "on one's own initiative". The court can investigate individuals from non-member states if the alleged offenses took place in a member state's territory, if the non-member state accepts the court's jurisdiction, or with the Security Council's authorisation.

The ICC has indicted more than fifty individuals, mostly from African countries. Twenty-one people have been detained in The Hague, ten have been convicted of crimes, and four have been acquitted. The court has successfully prosecuted individuals for war crimes committed in the former Yugoslavia, including in Srebrenica. It has also resolved cases of significance for international justice, shedding light on the crimes of using child soldiers, the destruction of cultural heritage, sexual violence, or attacks on innocent civilians.

The ICC has faced criticism from many parties and has been unable to gain the membership of major powers, including the United States, China, and Russia. Two countries have withdrawn from the court, and many African governments have complained that its prosecutions have singled out the continent. However, the ICC's ongoing investigations into the conflicts in Ukraine and the Palestinian territories demonstrate the court's continued relevance despite its formidable challenges.

War crimes

The first systematic attempt to define war crimes was the "Lieber Code", issued by US President Abraham Lincoln during the American Civil War. The Lieber Code held that it was a "serious breach of the law of war to force the subjects of the enemy into service for the victorious government" and prohibited "wanton violence" such as rape, maiming, and murder.

The modern concept of war crimes was further developed under the Nuremberg trials, which were based on the definition in the London Charter published on 8 August 1945. The Nuremberg trials prosecuted three categories of offences: crimes against peace, war crimes, and crimes against humanity. The Rome Statute of the ICC, established in 1998, also targeted these three kinds of crimes and added the crime of genocide.

The ICC has jurisdiction over war crimes, but national courts generally must judge the perpetrators. Other institutions with jurisdiction include international, mixed, and hybrid tribunals. Under the Geneva Conventions, perpetrators of war crimes must also be tried in countries other than those in which the crimes were committed, in application of the principle of universal jurisdiction.

To be liable for a war crime, the victim must be protected under the Geneva Conventions. GC I, II, and III apply to soldiers, while GC IV applies to civilians and "unlawful combatants". The following acts are war crimes under the Rome Statute Article 8:

• Torture or inhuman treatment, including biological experiments
• Wilfully causing great suffering, or serious injury to body or health
• Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
• Compelling a prisoner of war or other protected person to serve in the forces of a hostile power
• Wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial
• Unlawful deportation and transfer or unlawful confinement

Genocide

The United Nations General Assembly first recognised genocide as a crime under international law in 1946, and it was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The International Court of Justice (ICJ) states that all countries, regardless of whether they have ratified the Convention, are legally bound by the principle that genocide is prohibited under international law.

The Genocide Convention defines genocide as:

> [A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

> - Killing members of the group

> - Causing serious bodily or mental harm to members of the group

> - Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

> - Imposing measures intended to prevent births within the group

> - Forcibly transferring children of the group to another group

This definition includes two key elements: a mental element, which is the intent to destroy a group, and a physical element, which includes one of the five acts outlined above. The United Nations states that intent is the most challenging element to determine, and it must be proven that the perpetrators intended to physically destroy a group.

The Rome Statute of the International Criminal Court (ICC) includes genocide as one of the four main crimes under its jurisdiction. The ICC can prosecute individuals for genocide, which is characterised by the specific intent to destroy a national, ethnic, racial, or religious group, either partially or wholly. The ICC's jurisdiction applies to crimes committed on or after 1 July 2002, and it relies on the cooperation of countries worldwide for arrests, transfers, and enforcement of sentences.

Crimes against humanity

The first prosecution for crimes against humanity took place during the Nuremberg trials against the defeated leaders of Nazi Germany. Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda.

According to the Rome Statute, there are eleven types of crimes that can be charged as crimes against humanity when they are "committed as part of a widespread or systematic attack directed against any civilian population":

• Murder
• Extermination
• Enslavement
• Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
• Torture
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender grounds
• Enforced disappearance of persons
• The crime of apartheid
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health

The legal basis for prosecuting crimes against humanity is found in international criminal law, which is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities. International criminal law governs the relationships, rights, and responsibilities of states, organisations, and individuals operating across boundaries in committing international crimes.

The prosecution of crimes against humanity is necessary to enforce international criminal law and deliver justice to victims. It plays a crucial role in restoring dignity to victims and rebuilding trusting relationships in society.

International tribunals

The International Criminal Court (ICC) is the only permanent tribunal established in the world. It was established in 2002 pursuant to the multilateral Rome Statute and is seated in The Hague, Netherlands. The ICC has a mandate to investigate and prosecute cases worldwide, but its jurisdiction is limited to the countries that have accepted it. As of February 2024, 124 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania, and roughly half of Africa. The ICC is governed by the Assembly of States Parties, which elects officials of the Court, approves its budget, and adopts amendments to the Rome Statute. The Court itself has four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The ICC is distinct from the International Court of Justice, which is an organ of the United Nations that hears disputes between states.

Ad-hoc or temporary tribunals deal with specific national and international conflicts and the crimes committed by the armed parties involved. They have temporary mandates, which are dissolved after accomplishing their objectives. Some famous examples include the International Military Tribunal of Nuremberg, which prosecuted and condemned Germany's military and political leaders after World War II, and the International Military Tribunal for the Far East, also known as the Tokyo Tribunal, which sentenced Japanese leaders for their involvement in the war. Currently, ad-hoc tribunals such as the Special Tribunal of Lebanon are still operating.

The United Nations Security Council has also established several ad-hoc criminal tribunals, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ICTY was established in 1993 to prosecute serious crimes committed during the Yugoslav Wars, while the ICTR was created in 1994 following the Rwandan genocide. These tribunals have played a crucial role in addressing war crimes and providing justice to victims.

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