Marko Milanovic, University of Cambridge ATHA Training, June 2010

 Set of rules (substantive law on crimes, forms of responsibility, etc.) and institutions (criminal courts and tribunals).  Attempts to address system criminality; international crimes are often committed as a consequence of state or organizational policy, thereby leading to impunity  Horizontal and vertical regulation; core or true international crimes v. treaty crimes

 Post WW I – Versailles, the Kaiser, and the Leipzig war crimes trials (all in all, pretty pathetic)  Post WW II – IMTs at Nurembeg and Tokyo; NMTs and domestic trials (all in all, pretty impressive, if one-sided); ◦ Justice Jackson opening statement: The privilege of opening the first, trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.  The big Cold War lull ends in the 1990s: ICTY and ICTR  ICC 1998; Rome Statute enters into force on 1 July 2002

 International courts and tribunals ◦ Ad hoc tribunals: ICTY, ICTR, SCSL, STL ◦ A permanent court: the ICC  Internationalized or hybrid courts ◦ ECCC, courts in East Timor, Kosovo, Bosnia  Domestic courts ◦ Trials of lower-ranking defendants in post-conflict societies, e.g. in the former Yugoslavia ◦ Universal jurisdiction

 Treaty-based court; 111 states parties to the Rome Statute so far  Jurisdiction based on territoriality and active nationality; referral by a state party or investigation by the prosecutor proprio motu  Possibility of UNSC referral even of a situation in a non-state party under Chapter VII (Darfur) or of acceptance of jurisdiction by a non-state party (arguably Palestine); UNSC can defer proceedings by up to a year, renewably  Complementarity as a structural principle; cf. primacy with the UNSC ad hoc tribunals; cases admissible only if the state concerned is unwilling or unable to genuinely prosecute  Subject-matter jurisdiction extends to core international crimes; definition of aggression pending

 Nuremberg: crimes against peace, waging of aggressive war  Distinction between jus ad bellum and jus in bello  Proposed Art. 8 bis, para. 1: ‘For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.  Main issue: the role of the Security Council

 Nexus with armed conflict, and nexus between the crime and the conflict  Until Tadic, it was questionable whether there even was individual criminal responsibility for violations of IHL in internal armed conflict; now generally accepted by states, e.g. in the Rome Statute  Not every violation of IHL amounts to a crime ◦ In IACs = grave breaches of the GCs + serious violations of the laws and customs of war ◦ In NIACs = violations of CA3 + serious violations of the laws and customs of war  Criminalization can impose stricter conditions ◦ IHL prohibits disproportionate acts ◦ Art. 8(2)(b)(iv) ICC St. ‘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’ is a war crime

 At Nuremberg had a nexus to armed conflict (pre-war persecution of Jews was out); even in the ICTY Statute; no longer custom  Article 7(1) ICC St 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: e.g. murder, extermination, torture, persecution  Importance of the contextual element

 Art. II 1948 Genocide Convention, Art. 6 ICC St. "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: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.  The crime of crimes? Rwanda, Bosnia, Darfur, Cambodia

 Dual role: descriptive – taking into account the distinctive features of international criminality; and overcoming evidentiary hurdles  Joint criminal enterprise/common purpose  Command/superior responsibility  Indirect perpetration and co-perpetration

 Penological justifications ◦ Retribution; satisfaction to the victims ◦ Specific and general deterrence ◦ Rehabilitation  Truth and reconciliation and transitional justice? ◦ Former Yugoslavia  Legality and nullum crimen sine lege?  Victors’ justice? ◦ Jackson: “Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves.... We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”  Cost effective?