karna thapa faculty of law t.u. email: [email protected]
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International Military Tribunal at Nuremberg
International Military Tribunal at Tokyo
International Criminal Tribunal for the Former Yugoslavia 1993
International Criminal Tribunal for Rwanda 1994
Ad-hoc Criminal Tribunals in 20th Century
International Military Tribunal at Nuremberg
International Military Tribunal at Nuremberg was an occupation court for Germany set up after WW II by Four victorious powers to which Germany had surrendered unconditionally
Victorious powers consist of Great Britain, France, Soviet Union and United States acting in the interest of all nations- which was subsequently endorsed by nineteen other states.( Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxemburg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia)
The Charter of Nuremberg Tribunal was considered as the product of “the exercise of sovereign legislative power by the countries to which the German Reich unconditionally surrendered”
it affirmed “undoubted right of these countries to legislate for the occupied territories as recognized by the civilized world”
The Tribunal tried major Nazi Criminals - One defendant committed suicide- Another was declared unfit to stand trial- By the judgment of tribunal of 1october 1946 - 3 were acquitted- 12 sentenced to death (one of the 12
sentenced to death was Martin Bormann, Head of the Nazy Party Chancellery)
- 3 sentenced to life imprisonment- 4 sentenced to prison terms
International Military Tribunal for the Far East (Tokyo Tribunal)
The Tribunal was set up by United States’ Supreme Commander in Chief in Japan
US Supreme Commander –in- Chief appointed 11 judges
Japanese war crime suspects were classified as
A, B and C suspects “A” Suspect were charged with crime
against peace “B” suspect were charged with Conventional
war crimes “C” suspect were charged with the
atrocities known as the crime against humanity
Tokyo Tribunal prosecuted only A suspects comprising Former Prime Minister Hideki Tojo and 24 other perpetrators
B and C suspects were left to be tried in the before military courts in various states
International Criminal Tribunal for Former Yugoslavia
ICTY was set up by the UN Security Council Resolution 808 of 22 Feb. 1993 & Resolution No 827 of 25 May 1993.
Causes behind the establishment The widespread violation of international
humanitarian law within the territory of Former Yugoslavia,
Practices of ‘ethnic cleansing
Seat of ICTY
ICTY is based in The Hague, The Netherlands
ICTY Statute was adopted by Security Council on 3May 1993 following the report submitted by the secretary general on 3May 1993.
Hirearchy Prosecutor Trial Chamber The Appeal Chamber ICTY’s subject matter jurisdiction consists of
power to prosecute natural person responsible for the grave breach of the Geneva Conventions of 1949 relating to protection of victims of international armed conflict, violation of the laws and customs of war, genocide, crime against humanity.
International Criminal Tribunal for Rwanda (ICTR)
ICTR was setup by Security Council Resolution No 955 of 8 Nov. 1994, in response to the Genocide and other systematic, widespread, and flagrant violation of international humanitarian law that had been committed in Rwanda.
The seat of ICTR is based in Arusha Tanzania
It has jurisdiction over genocide, crime against humanity and violation of Article 3 common to Geneva Conventions of 12 Aug. 1949 for the protection of war victim and Additional Protocols II thereto of 8 June 1977,
ICTR exercises jurisdiction over natural person
Justification or legality for the establishment of ICTR
Rwanda itself requested for establishment of ICTR, and other states are bounds by the UN Charter obligation, it could not be contented that the establishment of ICTR violated the sovereignty of Rwanda and other states
The internal conflict in Rwanda was a threat to international peace and security, the UN Security Council was justified to invoke its competence under chapter VII of the UN Charter and set up the ICTR
International Criminal Court (ICC)Background of establishment Trinidad and Tobago came with the proposal envisaging
such a standing court to prosecute the drug traffickers The matter was referred to ILC by General Assembly in
1989 The International Law Commission (ILC) was asked by
the General Assembly to draft a statute for the court in 1993
The Draft statute finalized in 1994 and largely influenced by ICTY Statute
The advent of the ICTY in 1993 and ICTR in 1994 fueled the widespread belief that the International Permanent International Court was desirable and practical
Another Committee named Preparatory Committee for the Establishment of an International Criminal Court was set up by the General Assembly to prepare the text of the convention to set up international criminal court
Rome Conference was convened from 15 June to 17 July 1998 and participate by 160 states which adopted ICC Statute on the last day of the Conference
ESTABLISHMENT OF THE COURT An International Criminal Court (ICC) as a
permanent institution is established. The court exercises its jurisdiction over
persons for the most serious crimes of international concern.
The court shall be complementary to national criminal jurisdictions.
SEAT OF THE COURT The seat of the Court is established at The
Hague in the Netherlands ("the host State")
2. Headquarters agreement to be signed between the court and the host state for its establishment.
3. Court may sit elsewhere, whenever it considers desirable, as provided in this Statute.
Legal status and powers of the Court1. The Court possesses international legal
personality and such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.
2. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
Relationship of the Court with the United NationsThe 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.
JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Crimes within the jurisdiction of the Court
The Court has jurisdiction over the following crimes:
(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.
Genocide, “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:
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.
Crimes against humanity
"crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
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 sterilization, or any other form of sexual violence of comparable gravity;
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;
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 to mental or physical health.
War crimes war crimes" means: Grave breaches of the Geneva Conventions
of 12 August 1949, namely, Willful killing; Torture or inhuman treatment, including
biological experiments;
Willfully 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;
Depriving a prisoner of war or other protected person of the rights of fair and regular trial; Willfully
Unlawful deportation or transfer or unlawful confinement;
Taking of hostages.
B. Other serious violations of the laws and
customs applicable in international armed conflict,
Intentionally directing attacks against the
civilian population or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is,
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,
Intentionally launching an attack which causes incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment
Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered at discretion;
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;
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;
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
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
Killing or wounding treacherously individuals belonging to the hostile nation or army;
Declaring that no quarter will be given; Destroying or seizing the enemy's property
unless such destruction or seizure be imperatively demanded by the necessities of war;
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;
Pillaging a town or place, even when taken by assault;
Employing poison or poisoned weapons; Employing asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices;
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;
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,
Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
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;
Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, any of the following acts committed against persons taking no active part in the hostilities, members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
Taking of hostages; 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) 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.
E. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
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;
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,
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;
Pillaging a town or place, even when taken by assault;
Committing rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
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;
Killing or wounding treacherously a combatant adversary;
Declaring that no quarter will be given;
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
Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
Preconditions to the exercise of jurisdiction
1. A State Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes ( Genocide, Crime against humanity, War crimes and Crime of Aggression)
Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court.
Exercise of jurisdiction The Court may exercise its jurisdiction with
respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Applicable law 1.The Court shall apply: (a) In the first place, this Statute,
Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
(c) General principles of law derived by the Court from national laws of legal systems of the world including, the national laws of States that would normally exercise jurisdiction over the crime,
provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
2.The Court may apply principles and rules of law as interpreted in its previous decisions. 3.The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
Individual criminal responsibility 1.The Court shall have jurisdiction over
natural persons. 2.A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3.In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.