This chapter discusses the process toward the eventual adoption of a Statute for a permanent International Criminal Court (ICC) and the adoption of Statutes of various ad hoc international criminal courts. The process can be conceptualized in terms of several distinct phases: abortive early attempts (1919–45); the establishment of the Nuremberg and Tokyo Tribunals in the aftermath of the Second World War (1945–7); the post-Cold War ‘new world order’ and the establishment by the UN Security Council of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (1993–4); the drafting and adoption of the ICC Statute (1994–8); and the establishment of ad hoc hybrid criminal courts.
14. International criminal courts
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
3. The prosecution of international crimes:
The role of international and national courts and tribunals
This chapter offers a brief historical introduction to the rise of individual accountability for international crimes. It first outlines the history of war crimes prosecutions prior to the Nuremberg Trials. It then introduces the origins of the Nuremberg International Military Tribunal (IMT), the conduct of the trial of the major war criminals, the legal controversies involved, and other post World War II proceedings. The remainder of the chapter provides an overview of national prosecutions after 1945 and the complexities involved in drafting national legislation allowing such prosecutions; examines the ‘rebirth’ of international criminal tribunals in the 1990s and early 2000s; and steps back to briefly survey the question of what international criminal law is for or what goals it is intended to serve.
14. International Criminal Law
This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.
13. Defences or grounds for excluding criminal responsibility
This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.
4. Jurisdiction and structure of international criminal courts and tribunals
This chapter provides a general overview of the structure and workings of the different types of international criminal courts and tribunals. It first introduces the basic types of international criminal tribunal as well as the advantages and disadvantages of each. It then outlines the forms of jurisdiction; considers in more detail the ways in which the jurisdiction of the International Criminal Court (ICC) may be engaged and the limitations which are inherent in its statute on when it may proceed with an investigation or trial; and examines the structure of the ICC as a representative international criminal tribunal, which is internally divided into judicial, prosecutorial, and administrative organs.
12. Immunities Enjoyed by Officials of States and International Organizations
This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.
30. International criminal justice
This chapter discusses the development of international criminal law and institutions, international criminal courts and tribunals, and international criminal justice in national courts. These developments respond to but also reflect repeated failures to prevent serious violations of human rights and international humanitarian law. The work of the International Criminal Court, specialized criminal tribunals and ‘hybrid’ tribunals is outlined.
19. The Repression of International Crimes
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
This chapter begins with an overview of international crimes, namely, offences entailing the personal criminal liability of the individuals concerned (as opposed to the responsibility of the State) under international law. International crimes include war crimes, crimes against humanity, genocide, torture, aggression, and terrorism. The discussion then turns to the prosecution and punishment by State courts, focusing on the grounds of criminal jurisdiction and in particular universal criminal jurisdiction. It ends with an overview of the prosecution and punishment by international criminal courts and tribunals, with an emphasis on the International Criminal Court, and with an assessment of the main problems besetting international criminal proceedings.
6. Fair trial rights, appeals, and revision and enforcement of sentences
There is no general law or uniform code of international criminal procedure. The International Criminal Court's procedure is still developing, and the ad hoc international criminal tribunals have their own procedural rules. However, defendants before any of the tribunals share certain fundamental fair trial rights. This chapter examines those rights and a defendant's right to appeal against their conviction or sentence. It first introduces general fair trial rights enjoyed by the defendant. It then examines in more detail the content of the right to a public, fair, and expeditious hearing. Next, it considers some of the issues concerning legality of arrest and detention, the right of appeal, and the revision and enforcement of sentences.
9. Crimes against humanity
This chapter discusses the definition of crimes against humanity, its underlying offences, and some of the historical and theoretical issues surrounding the offence. It first outlines the evolution of the legal definition of crimes against humanity, which occurred through the statutes of international criminal tribunals. It then deals with the ‘contextual element’ of the offence; considers the prohibited acts that may form the conduct underlying a crime against humanity, with the exception of the complex crime of persecution; and examines the crime of persecution. Finally, it re-considers the question why there should be a separate category of crimes against humanity.
5. Crimes against humanity
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with discussions of the Nuremberg Charter and subsequent developments in international law. It then covers the notion of crimes against humanity today; objective and subjective elements; the authors and victims of crime; and Article 7 of the International Criminal Court Statute and customary international law.
International Criminal Law provides an introduction to a fascinating subject area. Structured in four parts, the first part of the work looks at the foundations of international criminal law. Part II considers issues surrounding the prosecuting of international crimes. It analyses areas such as jurisdiction, evidence, procedure, and appeals. Part III is about core international crimes and it examines topics such as war crimes, genocide, crimes against humanity, and aggression. The final part looks at defendants in international criminal trials. Finally, consideration is given to issues such as legal defences and immunities under international law.