ADVISORY SERVICE ON IHL

INTERNATIONAL CRIMINAL
JUSTICE: THE INSTITUTIONS

Although the idea dates back to the aftermath of the First World War, it was only in 1945 that the
first successful international organs of criminal justice – the Nuremberg and Tokyo International
Military Tribunals – were established, to address war crimes, crimes against peace and crimes against
humanity committed during the Second World War. The process of creating a permanent international
criminal court dates back to the end of the Second World War, but was virtually suspended in the 1950s
due to the complex international political environment of the Cold War. Talks about the establishment
of such a judicial body resurfaced in the early 1980s and gained momentum in the 1990s; meanwhile,
the large-scale atrocities committed in the former Yugoslavia and Rwanda prompted the United
Nations to set up two ad hoc tribunals in the 1990s. A series of negotiations to establish a permanent
international criminal court that would have jurisdiction over serious international crimes regardless
of where they were committed subsequently led to the adoption of the Statute of the International
Criminal Court (ICC) in July 1998 in Rome. It embodied the international community’s resolve to
ensure that those who commit serious crimes do not go unpunished. The ICC is the first treaty-
based, permanent international criminal court established to help end impunity for the perpetrators
of the most serious crimes of international concern. Several mixed tribunals, comprising elements
of both international and domestic jurisdiction, and special chambers within national courts have
subsequently been established to try those responsible for crimes committed in specific contexts.
 THE AD HOC TRIBUNALS
The International Criminal Tribunal for the former Yugoslavia (ICTY), based in The Hague, Netherlands,
was established in May 1993 by Security Council Resolution 827 Its jurisdiction was limited to acts
committed in the former Yugoslavia since 1991 and covered four categories of crimes as defined in the
ICTY’s Statute, namely, grave breaches of the 1949 Geneva Conventions,
violations of the laws and customs of war, genocide and crimes against
humanity. The jurisdictions of
the ICTY and the ICTR
The International Criminal Tribunal for Rwanda (ICTR), with its Trial were not exclusive but
Chambers based in Arusha, Tanzania, and its Appeals Chamber in The
concurrent with national
Hague (shared with the ICTY), was established in November 1994 by
Security Council Resolution 955. Its jurisdiction was limited to acts courts, over which they
committed in Rwanda or by Rwandan nationals in neighbouring States nevertheless had primacy.
during 1994 and covered three categories of crimes, namely, genocide,
crimes against humanity and violations of Article 3 common to the 1949
Geneva Conventions and Additional Protocol II, which set out rules applicable to non-international
armed conflicts.

The jurisdictions of the ICTY and the ICTR were not exclusive but concurrent with national courts, over
which they nevertheless had primacy.

The ICTR and the ICTY closed in 2015 and 2017, respectively.

The United Nations Mechanism for International Criminal Tribunals (MICT) was created to carry out
a number of essential functions of both tribunals as part of their completion strategy. The MICT has
jurisdiction to supervise the enforcement of sentences, designate the State in which convicted persons
will serve their sentences and decide on requests for pardon or commutation of sentence. In addition,
the MICT is responsible for the protection of victims and witnesses in the cases before it and in cases
completed by the tribunals. The MICT also retains jurisdiction over three of the remaining fugitives still
wanted by the ICTR. The MICT branches in Arusha and The Hague started functioning on 1 July 2012
and 1 July 2013, respectively, and worked concomitantly with the ICTY and the ICTR while the two latter
tribunals wound up pending proceedings.

MIXED TRIBUNALS AND SPECIAL CHAMBERS

Established in 2000 pursuant to Security Council Resolution 1315, the Special Court for Sierra Leone
(SCSL) had jurisdiction over all violations of Sierra Leonean law and international humanitarian law
(IHL) committed in Sierra Leone since 30 November 1996 and enjoyed primacy over the national
courts of Sierra Leone. The SCSL had offices in Freetown, The Hague and New York City. The Residual
Special Court for Sierra Leone took over the SCSL’s functions after the latter closed in 2013.

Inaugurated in March 2009 pursuant to Security Council Resolution 1664, the Special Tribunal for
Lebanon (STL) has jurisdiction over the crimes committed under Lebanese criminal law in the attack
on the former Lebanese prime minister Rafic Hariri, carried out on 14 February 2005. It is the first
tribunal of international character to try crimes under domestic law and to deal with terrorism as a
distinct crime. The tribunal sits in Leidschendam, Netherlands and has an office in Beirut.

Special Chambers were established in the courts of East Timor (Special Panel for Serious Crimes),
Cambodia (Extraordinary Chambers), Serbia (War Crimes Chamber) and Bosnia-Herzegovina (War
Crimes Chamber) in 2000, 2001, 2003 and 2005, respectively. In Kosovo, a hybrid entity known as the
“Regulation 64 panels”, established in 2000 by the United Nations Interim Administration Mission in
Kosovo (UNMIK, established by UN Security Council Resolution 1244), allowed international judges
to serve alongside domestic judges to try crimes under domestic law. UNMIK’s involvement with the
Kosovo judiciary ended in November 2008 and the responsibility for the prosecution of war crimes,
organised crime and other serious crimes under Kosovo law was formally transferred to the European
Union Rule of Law Mission in Kosovo (EULEX). EULEX war crimes trials in Kosovo are conducted
through the ordinary court system by mixed panels of international EULEX judges and Kosovo judges.

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 In 2016, the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC-SPO) based in The
Hague. The KSC has jurisdiction over crimes under international and national law. It forms part of the
Kosovo judicial system and administers justice under Kosovo law with jurisdiction over war crimes,
crimes against humanity, as well as transnational crimes committed or commenced in Kosovo. How-
ever, it is independent from, and has primacy over, Kosovo courts. Its judges and staff are exclusively
international.

THE INTERNATIONAL CRIMINAL COURT (ICC)

The Statute of the ICC entered into force on 1 July 2002 after 60 States had become party to it.

The ICC is the first treaty-based, permanent international

criminal court established to help end impunity for the
perpetrators of the most serious crimes of international concern.

NATIONAL ENFORCEMENT SYSTEMS, STATE RESPONSIBILITY AND THE ICC

The ICC is not intended to replace national criminal justice systems but rather to complement them.
Nothing in the ICC Statute releases States from their obligations under customary international law
and existing instruments of IHL to investigate and prosecute war crimes allegedly committed by
their nationals or armed forces or on their territory. States
are thus still required to enact implementing legislation
giving effect to these obligations. By virtue of the principle of
complementarity, the ICC’s jurisdiction
By virtue of the principle of complementarity, the ICC’s is intended to come into play only
jurisdiction is intended to come into play only when a State
when a State is unwilling or unable
is unwilling or unable to genuinely investigate or prosecute
alleged war criminals over whom it has jurisdiction. The ICC to genuinely investigate or prosecute
is thus intended to be a last resort in the event that a State alleged war criminals over whom
fails or is unable to properly discharge its duty to prosecute it has jurisdiction.
with regard to these international crimes. This principle is
merely intended to serve as a means of bringing about a more effective system of repression aimed
at preventing, halting and punishing the most serious international crimes.

CRIMES UNDER THE ICC’S JURISDICTION

According to its Statute, the ICC has jurisdiction over aggression, genocide, crimes against human-
ity and war crimes. Article 8 of the Statute lists the war crimes over which the ICC has jurisdiction.
These include most of the grave breaches listed in the 1949 Geneva Conventions and Additional
Protocol I and a number of serious violations of IHL, some of which are considered war crimes
irrespective of whether they were committed in international or non-international armed conflicts.
Offences specifically identified as war crimes in the Statute include:
•• rape, sexual slavery, enforced prostitution, forced pregnancy or other forms of sexual violence
•• conscripting or enlisting children under the age of 15 into armed forces or groups or using them
to participate actively in hostilities.

The Statute also contains a number of provisions concerning certain weapons whose use is prohib-
ited under various existing treaties, such as poison or poisoned weapons, asphyxiating, poisonous or
other gases and all analogous liquids, materials or devices and, more broadly, weapons and methods
of warfare which are of a nature to cause superfluous injury or unnecessary suffering. An amend-
ment to the Statute extending these provisions to non-international armed conflicts was adopted in
2010 and applies to States that have ratified the amendment.

Other grave breaches of IHL, namely unjustifiable delay in the repatriation of prisoners or launch-
ing an attack against works or installations containing dangerous forces, which are defined as
grave breaches in Additional Protocol I, are not specifically referred to in the Statute.

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 WHEN CAN THE ICC EXERCISE ITS JURISDICTION?
States that become party to the Statute accept the jurisdiction of the ICC in respect of the above-
mentioned crimes. Under Article 25 of the Statute, the ICC has jurisdiction over individuals, not States,
and, unlike the ICTY and ICTR, it does not have primacy over national courts.

At the instigation of the Prosecutor or any State Party, the ICC may exercise its jurisdiction over
crimes committed on the territory of a State Party or by a national of a State Party. A State that is
not a party to the Statute may make a declaration to the effect that it accepts the Court’s jurisdiction.
Further, under the collective security framework of Chapter VII of the Charter of the United Nations,
the Security Council may refer a situation to the Prosecutor for investigation. It may also request that
no investigation or prosecution commence or proceed for a renewable period of 12 months.

PROCEDURE AND EVIDENCE BEFORE THE ICC

Some elements of the inquisitorial system were introduced in the ICC’s Rules of Procedure and Evidence
in order to balance some of the major disadvantages of the adversarial model, the principal features
of which were adopted by the ICC. For instance, the Prosecutor must investigate both incriminating
and exonerating evidence equally in order to “establish the truth” as he is required to do under Article
54(1)(a) of the Statute. One particular feature of the ICC is
that victims have the right to participate in proceedings
and request reparations. They may also present their views States have clear obligations to
and concerns at all stages of the proceedings. cooperate with the ICC. These
include, where necessary, the
STATES AND THE ICC
States have clear obligations to cooperate with the
enactment of legislation to ensure
ICC. These include, where necessary, the enactment of the collection of evidence and the
legislation to ensure the collection of evidence and the arrest and transfer of those accused
arrest and transfer of those accused of crimes under the of crimes under the ICC’s jurisdiction.
ICC’s jurisdiction.

In addition, by virtue of the principle of universal jurisdiction, States are themselves obliged to bring
persons accused of grave breaches of the 1949 Geneva Conventions and 1977 Additional Protocol
I for trial before their national courts or to extradite them for trial elsewhere, regardless of their
nationality and of the place of the offence. National courts will thus continue to play an important and
primary role in the prosecution of war crimes.

WHAT IS NEEDED TO ENSURE THE ICC’S EFFECTIVENESS?

•• States should ratify the ICC Statute as soon as possible, since universal ratification is essential to
allow the Court to exercise its jurisdiction effectively and whenever necessary.
•• States should carry out a thorough review of their domestic legislation to ensure that their
laws and institutions are in compliance with their IHL obligations and that the ICC crimes are
integrated into their domestic legislation and tried and punished at domestic level.
•• States should assist each other and the ICC in connection with proceedings relating to crimes that
come under the Court’s jurisdiction. This requires the enactment or amendment of legislation
to ensure any necessary transfer of those accused of such crimes and of required evidence and
information.

INTERNATIONAL COURTS AND THE ICRC

The ICRC supports all efforts to promote respect for IHL, including when it comes to preventing,
halting and punishing war crimes. In this connection, it strongly welcomed the establishment of the
ad hoc tribunals and actively participated in the negotiations to establish the ICC, although it has not
been involved in court proceedings. In order to protect its confidentiality, the ICRC enjoys testimonial
immunity, notably under the ICC’s Rules of Procedure and Evidence, and therefore does not provide
evidence to the ICC or other tribunals.

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MISSION
The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent
organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of
armed conflict and other situations of violence and to provide them with assistance. The ICRC also
endeavours to prevent suffering by promoting and strengthening humanitarian law and universal
humanitarian principles. Established in 1863, the ICRC is at the origin of the Geneva Conventions and
the International Red Cross and Red Crescent Movement. It directs and coordinates the international
activities conducted by the Movement in armed conflicts and other situations of violence.

04.2021   Cover photo: C. Scott/ICRC

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