International Criminal Law

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International Criminal Law

• Minna Kimpimäki
• University of Lapland
• 2008

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Timetable

• Tue 9.9. at 10-12, lr 6
• Wed 10.9. at 10-12, lr 6
• Thu 11.9. at 10-12, lr 6
• Fri 12.9. at 10-12, lr 6
• Lecture test I, Mon 15.9 at 10-12, lr 10
• Lecture test II, Mon 22.9. at 10-12, lr 6
• Essays deadline Fri 10.10.2008

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Courses

• OLAW0302 INTERNATIONAL CRIMINAL LAW
• Lectures lecture test essay compensate the
  litterature of the course
• OAIT1014 KANSAINVÄLINEN RIKOSOIKEUS
• Luennot luentokuulustelu essee korvaavat
  opintojakson kirjallisuuden
• OAIO1001 RIKOSOIKEUS
• Luennot luentokuulustelu kelpaa pakolliseksi
  luentosarjaksi (0,5 op. keskeneräisiin
  opintoihin)
• OSYO0102 RIKOSOIKEUDEN PROJEKTIOPETUS
• Luennot luentokuulustelu/luentopäiväkirja ovat
  osa projektiohjelmaa

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Instructions for the essays

• Max. 10 pages
• May be written in English or in Finnish
• Student may decide the theme - must be connected
  to international criminal law
• May be done alone or in groups of 2-3 students
• All sources used (including Internet sources)
  must be mentioned in a list of sources AND at the
  text (footnotes/brackets) !!!
• Use different kind of sources books, articles
  etc. - NOT only Internet sources!
• DO NOT copy directly from the Internet!
• DEADLINE Fri 10.10.2008

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Basic Concepts
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International law / International Criminal Law

• Traditionally international law and criminal law
  have been regarded as separate areas of law
• Criminal law in the competence of sovereign
  states
• Compare INTERNATIONAL CRIMINAL LAW
• As an area of law is located in between
  international law, criminal law and criminal
  procedure

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International criminal law a special area of
law or a part of other areas of law?
PROCEDURAL LAW
CRIMINAL LAW
INTERNATIONAL CRIMINAL (AND PROCEDURAL) LAW
INTERNATIONAL LAW
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Contents of the International criminal law

• Crimes / Substantive intl criminal law
• Crimes (f.ex. war crimes, genocide, terrorist
  acts)
• General principles (f.ex. immunity,
  retroactivity, statutes of limitations)
• Enforcement / Adjective intl criminal law
• Jurisdiction of states
• International tribunals
• International co-operation between states (f.ex.
  extradition)

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Enforcement of international criminal law

• Mechanisms of direct enforcement
• International tribunals enforcement directly at
  the international level
• Mechanisms of indirect enforcement
• National courts enforcement at the national
  level
• Prosecution
• Extradition

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Aim Limits of international criminal law

• Aim
• To secure prosecution for serious crimes
• No escape from the punishment
• Protection for human rights
• Limits
• Sovereignty of the states
• Connection between the crime and the prosecuting
  state is demanded
• Human rights, principle of legality

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International Crimes
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International crimes

• International or transnational character
• committed on the area of several states / common
  threat to several states
• Serious nature
• threat to the peace and stability in general even
  if committed on the area of one state
• International measures
• conventions / international tribunals /
  extraterritorial jurisdiction

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Two groups of international crimesA. Core crimes

• Core crimes, international crimes in the narrow
  sense, crimes under general international law
• Basis in the customary law individual
  responsibility directly on the basis of
  international law
• Created after WW II
• War crimes, crimes against humanity, genocide
• International tribunals

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B. Treaty crimes

• Treaty crimes / common international crimes /
  international crimes in the broad sense
• Basis in international treaties, criminalizations
  in national criminal codes of the states
• Enforcement in states extradition/prosecution
• First international treaties at the late 19th and
  early 20th century (slave trade, piracy,
  narcotics)
• Several treaties since 70ies, still expanding

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Typical features of international treaties

• Definitions of crimes
• Obligations to make punishable
• Statements concerning punishments
• Jurisdictional obligations
• Obligations to prosecute/extradite
• Regulations concerning co-operation in criminal
  matters and extradition

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• In treaties creating international crimes
• Rules concerning definitions, jurisdiction,
  co-operation
• Obligation to create criminal legislation on
  national level
• Each State Party shall make the crimes set out
  in paragraph 1 punishable
• Often obligation to extradite or to prosecute
  (Aut dedere aut iudicare)
• The State Party in whose territory the alleged
  offender is present shall, if it does not
  extradite that person, submit, without exception
  whatsoever and without undue delay, the case to
  its competent authorities for the purpose of
  prosecution, through proceedings in accordance
  with the law of that State
• Some demands for the punishment (often very
  general in nature)
• by appropriate penalties which shall take into
  account their grave nature

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The role of intl organizations

• Most treaties are created in the context of
  international organizations
• United Nations
• Council of Europe
• European Union
• Red Cross
• International Civil Aviation Organization
• International Maritime Organization

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European union and international criminal law

• Originally criminal law was not a task of the EU
• Nowadays EU regulation has important effects on
  national legislation
• Protection of the economic interests of EU
• Council framework decisions
• F.ex. Council framework decision on combatting
  terrorism, 13.6.2002 (2002/475/YOS)
• Binding for members states vs. no direct power to
  enact criminal law minimum rules for crime
  definitions and punishments

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I Crimes committed during armed conflict other
serious violations of human rights

• Core crimes that are in the jurisdiction of
  international criminal tribunals
• Other serious violations of human rights

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A. Offences that are in the jurisdiction of the
criminal tribunals (esp. ICC)

• War crimes
• Crimes against humanity
• Genocide
• ---
• (The crime of aggression)

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• War crimes, law of Geneva humanitarian
  restrictions of warfare
• Geneva conventions 1949
• I wounded and sick in armed forces in the field
• II wounded, sick and shipwreked members of armed
  forces at sea
• III prisoners of war
• IV civilian persons in time of war
• Grave breaches obligation to extradite or to
  punish
• Definition of war crimes in the statutes of
  international criminal tribunals
• Cases in the international criminal tribunals
  in the national courts

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• War crimes, law of Hague restrictions of the
  weapons and of the methods of warfare
• ICC statute art. 8(2)
• Protection of cultural property in the event of
  armed conflict
• Prohibition of the recruitment, use, financing
  and training of mercenaries
• Prohibition of chemical weapons
• Prohibition of biological weapons
• Prohibition of anti-personnel mines

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ICC, article 8 War Crimes 1. The Court shall
have jurisdiction in respect of war crimes in
particular when committed as part of a plan or
policy or as a part of a large-scale commission
of such crimes 2. For the purpose of this
Statute, war crimes means
art. 8 continues ?
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• Grave breaches of the Geneva Conventions of 12
  August 1949, namely, any of the following acts
  against persons or property protected under the
  provisions of the relevant Geneva Convention
• Wilful killing
• Torture or inhuman treatment, including
  biological experiments
• Wilfully causing great suffering, or serious
  injury to the 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 fair and
  regular trial
• Unlawful deportation or transfer or unlawful
  confinement
• Taking of hostages.

art 8 continues ?
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• Other serious violations of the laws and customs
  applicable in armed conflict, 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 part in hostilities
• Intentionally directing attacks against civilian
  objects which are not military objectives
• 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, as long as they
  are entitled to the protection given to civilians
  or civilian objects under the international law
  of armed conflict

art 8 continues ?
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• intentionally launching an attack in the
  knowledge that such attack will cause incidental
  loss of life or injury to civilians or damage to
  civilian objects or widespread, long-term and
  severe damage to the natural environment which
  would be clearly excessive in relation to the
  concrete and direct overall military advantage
  anticipated
• 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
  defence, 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

art. 8 continues ?
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• 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, provided they are not military
  objectives
• 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,
  and which cause to or seriously endanger the
  health of such person or persons
• Killing or wounding treacherously individuals
  belonging to the hostile nation or army

art. 8 continues ?
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• Declaring that no quarter will be given
• Destroying or seizing the enemys property unless
  such destruction or seizure be imperatively
  demanded by the necessities of war
• Declaring abolished, suspended or inadmissible in
  a court of law the rights and actions of the
  nationals of the hostile party
• 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 belligerents 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

art. 8 continues ?
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• 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,
  provided that such weapons, projectiles and
  material and methods of warfare are the subject
  of a comprehensive prohibition and are included
  in an annex to this Statute, by an amendment in
  accordance with the relevant provisions set forth
  in articles 121 and 123
• Committing outrages upon personal dignity, in
  particular humiliating and degrading treatment
• Committing rape, sexual slavery, enforced
  prostitution forced pregnancy, as defined in
  article 7, paragraph 2 (f), enforced
  sterilization, or any other form of sexual
  violence also constituting a grave breach of the
  Geneva Conventions

art. 8 continues ?
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• 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 or
  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.

art. 8 continues ?
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• 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, namely, any of the following acts
  committed against persons taking no active part
  in the hostilities, including 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 regulatory constituted court, affording all
  judicial quarantees which are generally
  recognized as indispensable.

art. 8 continues ?
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• 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.
• 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 attacs against buildings,
  material, medical units and transport, and
  personnel using the distinctive emblems of the
  Geneva Conventions in conformity with
  international law

art. 8 continues ?
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• Intentionally directing attacks against
  personnel,
• installations, material, units or vihicles
  involved in a humanitarian assistance or
  peacekeeping mission in accordance with the
  Charter of the United Nations, as long as they
  are entitled to the protection given to civilians
  or civilian objects under the international law
  of armed conflict
• iv. 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
• v. Pillaging a town or place even when taken by
  assault
• vi. Committing rape, sexual slavery, enforced
  prostitution, forced pregnancy, as defined in
  article 7, paragraph 2 (f), enforced
  sterilization, and any other form of sexual
  violence also constituting a serious violation of
  article 3 common to the four Geneva Conventions

art. 8 continues ?
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• 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 nor carried out
  in his or her interest, and which cause death to
  or seriously endanger the health of such person
  or persons

art. 8 continues ?
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• Destroying or seizing the property of
  anadversary unless
• such destruction or seizure be imperatively
  demanded by the
• necessities of the conflict
• Paragraph 2 (e) 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 or a similar
  nature. It applies to armed conflicts that take
  place in the territory of a State when there is
  protracted armed conflict between governmental
  authorities and organized armed groups or between
  such groups.
• 3. Nothing in paragraph 2 (c) and (e) shall
  affect the responsibility of a Government to
  maintain or re-establish law and order in the
  State or to defend the unity and territorial
  integrity of the State, by all legitimate means.

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• Crimes against humanity
• This group of international crimes was created
  after WWII
• No general convention of these crimes
• Definition in the statutes of international
  criminal tribunals
• International restrictions for the national
  politics of the state
• A crime committed against groups of people
• Rome statute committed as part of a widespread
  or systematic attack directed against any
  civilian population

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• ICC, article 7 Crimes against humanity
• For the purpose of this Statute, 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

art. 7 continues ?
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• 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 or 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

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• 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.
• Paragraphs 2-3 Definitions (Attack directed
  against any civilian population,
  Extermination, Enslavement, Deportation or
  forcible transfer of population, Torture,
  Forced pregnancy, Persecution, The crime of
  apartheid, Enforced disappearance of persons,
  gender)

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• Genocide
• Prohibition of massive destruction of human lifes
  
• Directed against a protected group
• A purpose to destroy this group
• Often done with knowledge, approval or
  participation of the decisionmakers of the state
• Need for international measures
• Convention on the prevention and punishment of
  the crime of genocide (1948)
• Same defintions have also been taken to the
  statutes of international criminal tribunals

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• Definition of genocide
• Purpose to distroy partly or totally a group
  mentioned in the convention
• Act is directed against a group of people
• National, ethnic, racial or religious group
• Methods
• Killing,
• Causing serious bodily or mental harm,
• Inflicting on the conditions of life,
• Measures intented to prevent births,
• Transferring children of the group to another
  group

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• ICC, article 6 Genocide
• For the purpose of this Statute, 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.

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• Genocide individual criminal responsibility?/
  state responsibility?
• The criminal responsibility of individuals
• International tribunals
• National courts
• The responsibility of states
• International responsibility, not criminal
  responsibility
• International Court of Justice (ICJ) Case
  concerning Application of the Convention on the
  Prevention and Punishment of the Crime of
  Genocide (Bosnia and Herzegovina v. Serbia and
  Montenegro), Judgment of 26 February 2007

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• Crimes against peace (aggression)
• Most disputed of the war crimes
• Is there individual criminal responsibility on
  the basis of international law?, How wide is this
  responsibility?
• Was created in the statute of the Nuremberg
  tribunal
• Was not taken in the statutes of the ad hoc
  tribunals
• No definition in Rome statute

45

• Definitions are partly overlapping
• F.ex. Rape in the armed conflict
• ICTY ICTR statutes rape is mentioned as a
  crime against humanity
• Practice of these courts Sexual violence may be
  regarded as
• crime against humanity
• war crime (see f.ex. ICTY Furundzija)
• genocide (see f.ex. ICTR Akayesu)
• torture (see. f.ex. ICTY Furundzija)
• ICC Rome Statute rape mentioned as a war crime
  and as a crime against humanity
• Rape other forms of sexual violence (sexual
  slavery, enforced prostitution, forced pregnancy,
  forced sterilization other forms of sexual
  violence)

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B. Other serious violations of human rights

• Racial discrimination apartheid
• Forced disappearance of persons
• Torture

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• Racial discrimination apartheid
• International convention on the elimination of
  all forms of racial discrimination
• International convention on the suppression and
  punishment of the crime of apartheid (1973)
• Policies and practices of racial segregation and
  discrimination
• Inhuman acts committed for the purpose of
  establishing and maintaining domination by one
  racial group of persons over any other racial
  group of persons and systematically oppressing
  them

48

• Forced disappearance of persons
• International convention for the protection of
  all persons from enforced disappearance (not in
  force yet)
• Arrest, detention, abduction or other deprivation
  of liberty
• Perpetrated by agents of the state or by
  persons/groups acting with the authorization,
  support or acquiescence of the state,
• Followed by a refusal to acknowledge the
  deprivation of liberty or by concealment of the
  fate or whereabouts of the disappeared person
• Person is placed outside the protection of the
  law

49

• Torture
• Convention against torture and other cruel,
  inhuman or degrading treatment or punishment
  (1984)
• Infliction of severe pain or suffering, whether
  physical or mental, which does not arise only
  from lawful sanctions
• The intentional infliction of pain or suffering
• The involvement of a public official in the
  commission of an act of torture or in its
  authorization
• Torture / other cruel, inhuman or degrading
  treatment - Ireland v. United Kingdom
• National courts, international tribunals,
  supervision of human rights

50
II Offences connected to terrorism
51

• Terrorism
• Several treaties regulating different forms of
  terrorist action
• No global, comprehensive treaty
• European convention on the suppression of
  terrorism (1977)
• Definition of terrorism?
• Use/threat of violence
• Creation of an atmosphere of fear
• Attempt to influence on the acts or opinions of
  other persons or institutions

52

• Criminal acts against air traffic
• Increase of criminal acts against air traffic at
  -60ies and -70ies, international nature of the
  acts
• Convention for the suppression of unlawful
  seizure of aircraft (Hague, 1970)
• Convention for the suppression of unlawful act
  against the safety of civil aviation (Montreal,
  1971)
• Lockerbie -case

53

• Piracy
• Historically high seas were an important
  economical, political and militarian arena
• Special jurisdiction on the basis of customary
  law any state (earlier any person) has the right
  to punish for piracy
• UN convention on the high seas 1958 / UN
  convention on the law of the sea 1982
• Very restrictive definition
• Illegal violence against another vessel,
• for private purposes,
• on the high seas

54

• Criminal acts against the safety of maritime
  navigation
• Convention for the suppression of unlawful acts
  against the safety of maritime navigation (1988)
• Protocol safety of fixed platforms located on
  the continental shelf
• Regulation concerning piracy was not
  comprehensive enough new treaties were needed
• Achille Lauro
• In new treaties similar regulation as in the
  previous treaties concerning air traffic

55

• Criminal acts against internationally protected
  persons
• Need to grant the safety of diplomatic personnel
  and of the personnel in peace keeping forces
• Convention on the prevention and punishment of
  crimes against internationally protected persons,
  including diplomatic agents (1973)
• Violence / threat against protected person or
  his/her family (f.ex. killing, kidnapping etc),
  attacks against his/her apartment, office or
  means of transport
• Convention on the safety of United nations and
  associated personnel

56

• Taking of hostages
• International convention against the taking of
  hostages (1979)
• Taking a hostage in order to force a third person
  to do something
• Covers acts that are part of political terrorism
  but also acts that are done for private ends
  (f.ex. economic purposes)
• International element is demanded

57

• Terrorist bombings
• International convention for the suppression of
  terrorist bombings (1997)
• Delivers, places, discharges, detonates explosive
  or other lethal device in, into or against place
  of public use, a State or government facility, a
  public transportation system or an infrastructure
  facility
• Financing of terrorism
• International convention for the suppression of
  the financing of terrorism (1999)
• Prohibition to provide or collect funds with
  intention that they should be used or in
  knowledge that they are to be used in order to
  carry out a terrorist offence

58
III Offences connected to organized crime
59

• Organized crime
• United nations convention against transnational
  organized crime
• Three protocols
• trafficking in persons,
• smuggling of migrants
• illegal manufacture of and trade in arms
• Organized criminal group
• Three or more persons
• Exists for a period of time
• Acts in concert with an aim of committing one or
  more serious crimes or offences
• In order to obtain, directly or indirectly,
  financial or other material benefit

60

• Narcotic drugs a complex set of international
  treaties
• Single convention on narcotic drugs (1961)
• Convention on psychotropic substances (1971)
• United nations convention against illicit traffic
  in narcotic drugs and psychotropic substances
  (1988)
• Cultivation, production, manufacture, extraction,
  preparation, possession, offering, offering for
  sale, distribution, purchase, sale, delivery,
  transport, importation and exportation, money
  laundering
• Offences and sanctions, jurisdiction,
  confiscation, extradition, mutual legal
  assistance, transfer of proceedings

61

• Trafficking in persons / smuggling of migrants
• International treaties etc
• Protocols for the UN convention against organized
  crime,
• Council of Europe convention on action against
  trafficking in human beings,
• Council framework decisions (EU)
• Trafficing
• Act recruitment, transportation, transfer,
  receipt
• Means threat, use of force, deception, abuse of
  vulnerability
• Aim/purpose exploitation (sexual exploitation,
  forced labour, removal of organs )
• Trafficking in persons Smuggling of migrants

62

• Counterfeiting currency
• International convention for the suppression of
  counterfeiting currency (1929)
• Council framework decision (14.6.2000,
  2000/383/YOS) protection of the Euro
• Money laundering
• Rules concerning f.ex. money laundering in
  international treaties concerning organized crime
  and drug trafficking
• Directive Council framework decision (EU)
  concerning money laundering
• Corruption
• Active / passive
• EU, OECD, Council of Europe, UN treaty against
  transnational organized crime, UN treaty against
  corruption

63
Enforcement
64
I Criminal Jurisdiction
65
Jurisdiction

• Persons who have committed crimes travel from
  state to another
• International crimes
• Common crimes having international connections
• Idea that there should be no escape from the
  criminal proceedings fight against impunity
• Rules of jurisdiction in national legislation
• Sovereignty of states, no jurisdiction on
  arbitrary basis (nexus demanded)
• vs.
• Jurisdictional obligations in international
  treaties

66
Forms of jurisdiction

• Legislative jurisdiction (jurisdiction to
  prescribe)
• Jurisdiction to establish the contents and
  application of national criminal law
• Judicial jurisdiction (jurisdiction to
  adjudicate)
• Jurisdiction to apply established jurisdiction in
  a particular proceedings
• Executive jurisdiction
• Jurisdiction to commit government actions / to
  enforce orders

67
Principles of jurisdiction

• Principles on international level exact rules
  on national level
• Principles of jurisdiction describe connections
  that are more or less generally accepted
• Rational connection between criminal act /
  offender and prosecuting state
• Territorial / extraterritorial jurisdiction

68
Principle of territoriality

• Jurisdiction of the state where the crime was
  committed
• For a long time was the only jurisdictional
  principle that was generally accepted, especially
  in common law countries
• Is still often the most rational place for
  prosecution (availability of evidence and
  wittnesses, knowlede of language and culture )
• Where the act was committed? In the place where
  the act was committed and in the place where the
  result of the act came out

69
Flag principle

• Jurisdiction for crimes committed on a ship / air
  plane registered at the state
• Rational basis ships/air planes are moving from
  one place to another, crews/passangers have
  different nationalities
• Earlier was sometimes considered to be a part of
  territorial principle (floating part of the
  state)
• Nowadays is usually considered to be a
  jurisdictional principle of its own

70
Protective principle

• Jurisdiction for crimes committed against the
  state itself
• Need of the state to defend itself from crimes
  directed against its interests
• Internal / external safety of the states, other
  important interests of the states
• Protection of the state f.ex. against spying,
  forgery of the currency, violations of customs
  legislation)
• Necessary because states dont always defend
  interests of other states

71
Passive personality principle

• Jurisdiction over offences committed against
  nationals of the state
• Disputed principle persons abroad are entitled
  to the protection of the territorial state
• Some states find it necessary to protect their
  nationals from serious crimes even abroad
• In most cases demand of double criminality
• Should be a crime both in the prosecuting state
  and in the place where the crime was committed

72
Active personality principle

• Jurisdiction over offences committed by nationals
  of the prosecuting state (nationality principle)
• Traditionally accepted in continental Europe
• Originally obedience of the nationals towards
  the legislation of the home state (right of the
  state to monitor its citizens)
• More liberal views after WWII in most cases
  demand of double criminality
• Nowadays international solidarity and practical
  considerations restricted extradition of the
  nationals

73
Universality principle

• Jurisdiction regardless of the place where the
  crime was committed and regardless of the
  authors / victims nationality
• Possibility to prosecute international crimes in
  any state
• Restricted group of international crimes crimes
  directed against universal, generally accepted
  and important values
• Different interpretations which are this kind of
  crimes
• Origins in the regulation of piracy enemies of
  the mankind

74
Principle of representation

• Jurisdiction on behalf of other state
• This principle isnt recognized in all states
• Principle of representation / principle of
  universality
• Request from the state where the crime was
  committed
• Double criminality demanded

75
Competence conflicts

• Jurisdiction of the states has got wider
• Often several states have jurisdiction over
  same act
• Positive competence conflicts
• No binding rules concerning hierarchy
• In practice proceedins usually in the state that
  has most interest and best practical
  possibilities to prosecute

76
II International Criminal Tribunals
77
International criminal tribunals

• Efforts after WWI
• Treaty of Versailles responsibility of
  individuals on the basis of international law
• In practice no success
• Emperor of Germany was not extradited from
  Netherlands
• Few war criminals were prosecuted, many were
  found innocent, lenient punishment, some escaped
  during their punishment
• New idea was created basis for prosecutions
  after WWII

78

• After WWII war tribunals in Nuremberg and Tokyo
• Special circumstances serious crimes, global
  disapproval, total capitulation of Germany,
  evidence available etc.
• Courts of victors - not clearly international
• Partly retroactive criminal legislation
• Important for the development of the
  international criminal law
• Crimes against peace, war crimes, crimes against
  humanity

79

• ICTY www.un.org/icty
• International tribunal for the prosecution of
  persons responsible for serious violations or
  international humanitarian law committed in the
  territory of the former Yugoslavia since 1991
  (ICTY) UN security council 827 (1993)
• ICTR www.ictr.org
• International criminal tribunal for the
  prosecution of persons responsible for genocide
  and other serious violations of international
  humanitarian law committed in the territory of
  Rwanda and Rwandan citizens responsible for
  genocide and other such violations committed in
  the territory of neighbouring states between 1
  January 1994 and 31 December 1994 (ICTR) UN
  security council 955 (1994)

80

• ICTY and ICTR were created by UN security council
  was in that situation an efficient way to
  create an international court
• Jurisdiction limited certain crimes, certain
  place, certain time
• ICTY Grave breaches of Geneva conventions,
  violations of laws and customs of war, genocide,
  crimes against humanity
• ICTR genocide, crimes against humanity,
  violations of article 3 common to the Geneva
  conventions and of additional protocol II
• Primary nature compared to national jurisdictions
• Special courts also f.ex. in East Timor, Sierra
  Leone, Cambodia

81
International criminal court, ICC

• www.icc-cpi.int
• Created by an international treaty Rome statute
  (1998, came into force 2002)
• Jurisdiction for the crimes committed after the
  statute came into force
• Jurisdiction over natural persons (18 years?)
• National jurisdiction of the state is primary
• ICC when national courts are unwilling/unable to
  prosecute

82

• Most serious crimes which are a concern of whole
  community of states
• Genocide, Art. 6
• As in the genocide convention
• Crimes against humanity, Art. 7
• Widespread or systematic attack against civilian
  population
• Murder, extermination, enslavement, deportation,
  forcible transfer, imprisonment, torture, rape,
  sexual slavery, forced pregnancy, enforced
  sterilization, persecution, enforced
  disappearance, apartheid, other inhumane acts
• War crimes, Art. 8
• International conflicts
• Grave breaches of the Geneva Conventions, other
  serious violations of the laws and customs
  applicable in international armed conflict
• Armed conflict not of an international character
• Serious violations of article 3 common to the
  Geneva Conventions, other serious violations of
  the laws and customs applicable in armed
  conflicts not of an international character
• In the future perhaps aggression

83

• ICC definitions vs. definitions of crimes in
  national penal codes
• ICC No clear obligation to criminalize certain
  acts
• Complementary nature Jurisdiction if state is
  unwilling/unable to prosecute
• States often want to formulate their criminal
  legislation as such that they are not regarded as
  unwilling/unable to prosecute
• ICTR The Prosecutor v. Michel Bagaragaza,
  ICTR-05-86-AR11bis, Decision on rule 11bis
  appeal A request to refer case of Michel
  Bagaragaza to the Kingdom of Norway was denied

84

• Referral of the cases to the ICC
• By security council no state consent required
• By state party state consent required, must
  specify relevant circumstances and include
  supporting documentation
• By ICC prosecutor state consent required
• State consent
• Agreement of the state where committed or of the
  state whose national accused person is
  (ratification/ad hoc agreement)

85

• Penalties
• Imprisonment for a specified number of years
• Max. 30 years
• Life imprisonment
• Fine / forfeiture in addition to imprisonment
• Determination of the sentence
• Gravity of the crime
• Individual circumstances of the convicted person
• Enforcement of sentences
• Imprisonment is served in a state designated by
  the Court

86

• General obligation to co-operate, art. 86
• States Parties shall, in accordance with the
  provisions of this Statute, cooperate fully with
  the Court in its investigation and proscution of
  crimes within the jurisdiction of the Court.
• Fex.
• Surrender of persons arrest provisional
  arrest identification and whereabouts of
  persons location of items taking of evidence
  questioning service of documents facilitating
  the voluntary appearance of persons examination
  of places execution of searches and seizures
  provision of records and documents protection of
  victims and witnesses identification, tracing
  and freezing or seizure of proceeds, property and
  assets

87
Situations and cases Situation in Democratic
Republic of the Congo Case The Prosecutor v.
Thomas Lubanga Dyilo Case The Prosecutor v. Bosco
Ntaganda Case The Prosecutor v. Germain Katanga
and Mathieu Ngudjolo Chui   Situation in
Uganda Case The Prosecutor v. Joseph Kony,
Vincent Otti, Okot Odhiambo and Dominic
Ongwen Situation in Central African
Republic Case the Prosecutor v. Jean-Pierre Bemba
Gombo Situation in Darfur, Sudan Case The
Prosecutor v. Ahmad Muhammad Harun (Ahmad
Harun) and Ali Muhammad Ali Abd-Al-Rahman (Ali
Kushayb)   
88
Conclusions
89
International Criminal Law
Criminal jurisdiction
Definitions of crimes
Extradition cooperation in criminal matters
International criminal tribunals
90
Developments

• More international treaties more international
  offences
• Wider jurisdiction at the national level
• International tribunals
• From ad hoc solutions to permanent one (ICC)
• Regional and global development
• More active role of the EU
• Forms of co-operation created at the regional
  level are taken also to the global treaties
• New types of international co-operation mutual
  assistance
• F.ex. gathering of the evidence, transfer of
  prisoners, recognition of foreign penal
  judgements, transfer of criminal proceedings,
  assets freeze and seizure

91
Problems / challenges

• International tribunals
• Limited jurisdiction
• Limited resources practical possibilities
• Lack of prevention?
• National jurisdiction
• Selective
• Unpredictable
• Disputed

92
Aiming high

• Rome Statute, preamble
• Mindful that during this century millions of
  children, women and men have been victims of
  unimaginable atrocities that deeply shock the
  conscience of humanity,
• Recognizing that such grave crimes threaten the
  peace, security and well-being of the world,
• Affirming 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,
• Determined to put an end to impunity for the
  perpetrators of these crimes and thus to
  contribute to the prevention of such crimes