What is International Criminal Law

International criminal law refers to the aspects of international law focused on crimes that have an international dimension or cross international borders. Unlike other areas of international law, international criminal law places criminal responsibility and accountability on individuals rather than on states.

Specifically, international criminal law is concerned with crimes such as war crimes, crimes against humanity, genocide, and the crime of aggression, which often occur during times of conflict. These crimes have an international element in that they violate norms and values seen as universal by the international community.

While states may bear responsibility under international law for certain acts, international criminal law modifies traditional notions of state sovereignty by empowering domestic and international judges to hold individuals personally accountable. By placing responsibility directly on individual perpetrators, international criminal law aims to end impunity and deter future violations.

The core premise is that those who commit grave international crimes should face prosecution and punishment at the international level based on international law standards, regardless of their official position or the jurisdiction in which the crimes occurred. This represents a departure from traditional thinking, which left many international crimes to be handled domestically under national laws.

The Birth and Evolution of International Criminal Law

International criminal law is a relatively new field that has rapidly evolved over the past century. The first major developments were the Nuremberg and Tokyo war crimes tribunals held after World War II. These tribunals marked an end to the idea of absolute state immunity - establishing that state actors could be held accountable for crimes in violation of international law.

The next phase involved the adoption of treaties aimed at repressing international crimes by requiring states to criminalize certain conduct domestically and punish those responsible. This approach used international law as a tool to coordinate the exercise of criminal jurisdiction by states.

Finally, starting in the 1990s, the international community established international courts with jurisdiction over specific crimes. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were the first truly international criminal tribunals. They were followed by the establishment of the permanent International Criminal Court (ICC) in 2002. Other “mixed” courts blending international and domestic law have also emerged. The creation of these international judicial institutions has been a defining feature in the evolution of international criminal law.

War Crimes

War crimes are violations of international humanitarian law governing armed conflict and warfare. Historically, the 18th century saw the emergence of national criminal codes and military manuals that recognized the right of a belligerent party to prosecute and punish their own soldiers for transgressions. Article 228 of the Versailles Treaty represented the first international recognition of the right to bring enemy belligerents to justice for violations.

The criminalization of war crimes under international law began in earnest with the adoption of specific provisions in the four 1949 Geneva Conventions on the protection of victims of war. These conventions obligated state parties to enact domestic legislation to prosecute grave breaches. The 1977 Additional Protocols expanded the scope of international humanitarian law and defined additional war crimes beyond grave breaches of the Geneva Conventions. Subsequent treaties governing armed conflict have also contained provisions criminalizing violations under international law.

The enforcement of violations as international crimes intensified with the establishment of international criminal tribunals in the 1990s and early 2000s, as well as the permanent International Criminal Court in 2002. These judicial bodies were granted jurisdiction to prosecute individuals for war crimes, among other international crimes, under international law. The specific war crimes falling under their jurisdiction were extensively defined in their founding statutes and documents.

Crimes Against Humanity and Genocide

International criminalization of crimes against humanity and genocide is a relatively recent development in international law. Unlike war crimes, these offenses are not rooted in national criminal legal systems, but started with the adoption of the Charter of the International Military Tribunal (IMT) and the subsequent Nuremberg trial after World War II.

The purpose was to address the treatment by a state of its own citizens or those of allied countries. The IMT Charter defined crimes against humanity as murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, whether or not there was an armed conflict. Genocide was codified after Nuremberg in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Both crimes against humanity and genocide impose individual criminal responsibility on state actors and others for widespread or systematic attacks on civilian populations and attempts to destroy national, ethnic, racial or religious groups. By criminalizing these offenses under international law, the aim was to prevent impunity and hold perpetrators accountable regardless of sovereign immunity. This marked a significant evolution in international criminal law.

Ad Hoc Tribunals

The 1990s saw the establishment of the first international criminal tribunals since Nuremberg and Tokyo. These ad hoc tribunals were created by the UN Security Council and given specific, limited mandates and jurisdictions:

• The International Criminal Tribunal for the former Yugoslavia (ICTY), established in 1993, had jurisdiction over serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. This included grave breaches of the 1949 Geneva Conventions, violations of laws or customs of war, genocide, and crimes against humanity. The tribunal focused on crimes committed during the Yugoslav wars, especially in Bosnia and Herzegovina, Croatia, and Kosovo.

• The International Criminal Tribunal for Rwanda (ICTR), established in 1994, had jurisdiction over genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions committed on the territory of Rwanda between 1 January 1994 and 31 December 1994. The tribunal was created in response to the Rwandan genocide and resulting refugee crisis.

Though limited in scope, the ICTY and ICTR were groundbreaking in directly applying international criminal law and prosecuting heads of state, high-ranking officials, and other perpetrators. However, they relied heavily on state cooperation and faced challenges with enforcement, language barriers, and establishing legitimacy. The ad hoc model demonstrated the feasibility of international criminal justice but highlighted the need for a permanent institution like the ICC.

The ICC

The International Criminal Court (ICC) is the first permanent global court created for trying individuals accused of international crimes such as war crimes, crimes against humanity and genocide. Prior to the ICC, these crimes were prosecuted through ad hoc tribunals like the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY).

The ICC was established by the Rome Statute which came into force in 2002 after ratification by 60 countries. The ICC is located in The Hague, Netherlands and has jurisdiction over the 124 countries that are currently state parties to the Rome Statute.

The ICC can prosecute and try individuals accused of international crimes committed within the territory of a state party or by a national of a state party. The ICC only steps in when national courts are unwilling or unable to investigate or prosecute. This principle is known as complementarity and respects state sovereignty.

Cases can come before the ICC in three ways:

• A situation is referred to the ICC Prosecutor by a state party
• The ICC Prosecutor initiates an investigation proprio motu (on their own initiative)
• The United Nations Security Council refers a situation to the Prosecutor, even involving non-state parties

Once the Prosecutor initiates an investigation, cases are handled independently by the ICC’s chambers and judges. The ICC does not have an independent police force so it relies on cooperation from states for evidence collection and arrest warrants.

So far, the ICC has opened investigations in over a dozen countries and issued arrest warrants for various war crimes and crimes against humanity. However, the ICC faces challenges in apprehending suspects and carrying out its mandate. Several nations oppose the ICC’s authority and have not signed or withdrawn from the Rome Statute. Nevertheless, the establishment of the ICC remains an important milestone in the evolution of international criminal law.

The United Nations Security Council and the ICC

The UN Security Council has a unique relationship with the International Criminal Court (ICC) when it comes to the Court’s jurisdiction. Under the Rome Statute, the Security Council can refer situations to the ICC, thereby expanding the Court’s jurisdiction to crimes committed by any individual, even if their home country is not a party to the Rome Statute. This is what happened in the case of Darfur, when the Security Council passed Resolution 1593 in March 2005 referring the situation in Darfur to the ICC.

At the same time, the Security Council can limit the ICC’s jurisdiction through the use of Article 16 of the Rome Statute, which allows the Council to pass a resolution deferring an ICC investigation or prosecution for 12 months (renewable). This happened in 2002 and 2003 when the Security Council passed Resolutions 1422 and 1487 regarding UN peacekeeping forces, requesting immunity from ICC prosecution.

So in summary, the Security Council has a unique ability to both expand and limit the jurisdiction of the ICC through referrals and deferrals. This highlights the special status of the Council under international law.

The Relationship Between International Criminal Courts and National Courts

International Courts

• Apply international law directly without needing implementing domestic legislation. This allows them to more easily prosecute crimes under international law.
• Have greater visibility than national courts. Their global mandate and connection to the UN or treaty regime gives them more prominence.
• Must rely on cooperation from states for arrests, evidence gathering and enforcement of sentences. This can be a challenge.
• Can face language barriers in working across multiple national jurisdictions.
• Work under the principle of complementarity, stepping in when national courts are unwilling or unable to act.

National Courts

• Need to first incorporate international criminal law into domestic legislation before having jurisdiction. This extra step can cause delays.
• Have established law enforcement and penal systems making investigation, prosecution and punishment more straightforward.
• Have priority jurisdiction under the ICC Statute. The ICC intervenes only if national courts fail to act.
• Better understand domestic context and have easier access to evidence and witnesses within their jurisdiction.

Conclusion

International criminal law is a vital field of public international law that establishes individual criminal responsibility for certain egregious crimes of global concern. As we have seen, it has evolved substantially over the past century, from its origins at the Nuremberg and Tokyo tribunals to the establishment of the ICC and other international courts today.

Some key points to highlight:

• International criminal law pierces the veil of state sovereignty by holding individual state actors criminally accountable for grave breaches of international law. This marks an important shift from traditional concepts of absolute state immunity.
• The core international crimes of genocide, crimes against humanity, and war crimes are now widely recognized and codified in treaties and domestic laws. Their prosecution and punishment is seen as essential to protecting human rights and human dignity.
• Ad hoc tribunals like the ICTY and ICTR, as well as the permanent ICC, demonstrate the increasing role of international judicial institutions in enforcing international criminal law. However, they remain reliant on state cooperation.
• National courts also play a critical role in implementing international criminal law domestically and prosecuting international crimes. The principle of complementarity gives them priority over international courts.

In today’s globalized world, impunity for international crimes is unacceptable. International criminal law upholds the rule of law and gives force to the moral imperative that the worst violations of human rights and humanitarian law must be punished. Its continuing evolution and enforcement will be vital to protecting human rights and human security worldwide.

Further Reading

For more information on international criminal law, consult the following resources:

• The International Criminal Court: The Making of the Rome Statute by Roy S. Lee. Provides a historical account of the establishment of the ICC.
• Principles of International Criminal Law by Cherif Bassiouni. A leading textbook covering the origins and major principles of international criminal law.
• International Criminal Law by Antonio Cassese. A comprehensive overview of the field of international criminal law and its key institutions.