1. INTERNATIONAL CRIMINAL JURISDICTION
Jo Stigen
Oslo, 28 January 2019

2. Some Introductory remarks
National criminal jurisdiction is a function of the state’s sovereignty
An international court is an international subject, but possesses no sovereignty
Its jurisdiction = given by sovereign states; in a way and with a scope according to Int’l law

3. Important limit that an international court must not necessarily observe: immunity
The jurisdiction of an international criminal court can be “tailor made” to a certain situation or more general for future
Note that there are hybrid criminal courts; mixes of national and international

4. How can the issue of the validity and scope of international jurisdiction be raised?
Can an international court assess the validity of its own jurisdiction?
IMT: the jurisdictional provisions of the Nuremberg charter “are binding upon the Tribunal as the law to be applied to the case.”
Today: an international criminal court must always assess the validity of its own jurisdiction (Tadic)

5. - Today: See Tadic para. 56 
Also, it has been controversial whether the individual can invoke lack of jurisdiction
Eichmann and Noriega
 - Today: See Tadic para. 56  

6. ”To bar an accused from raising such a plea is tantamount to deciding that, in this day and age, an international court could not, in a criminal matter where the liberty of an accused is at stake, examine a plea raising the issue of violation of State sovereignty. Such a startling conclusion would imply a contradiction in terms which this Chamber feels it is its duty to refute and lay to rest.”

7. The ICJ can determine the jurisdiction of national courts, but not of an international court
Will a state have locus standi before an international criminal court regarding the issue of jurisdiction?
The general rule is no; not before the IMT of IMTFE; ICTY or ICTY.
But before the ICC according to article 19(2)(b) and (c) of the Rome Statute – why?

8. Establishment of IMT and IMTFE
WWI: article 227 of the Versailles Treaty
The Leipzig trials
WWII
St. James Agreement (1941)
Moscow Conference (1943)
Nuremberg Charter (London Agreement, USA, UK, France, Soviet, 1945)

9. Over whom had the IMT jurisdiction?
The international law basis?
Could these four states be said to represent the “international community”?

10. What about the credibility of IMT? Independence? Impartiality?
What about the credibility of IMT?
Independence?
Impartiality?
Which crimes were not prosecuted here?

11. Some words on the IMTFE
Established 19 January 1946 by Special Proclamation by the High Commander in Chief for the Allied in the Pacific Theatre, General Douglas McArthur
Mandate from the Allied States
Judges from eleven states 

12. The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal:
Greece, Denmark, Yugoslavia, Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Austria, Honduras, Norway, Panama, Luxemburg, Haiti, New Zealand, India, Venezuela, Uruguay and Paraguay.

13. Which crimes were not prosecuted by the IMTFE?

14. Control Council Law No. 10 tribunals
20 December 1945 – a modified version of the Nuremberg Charter
From the Justice trial:
“tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. [The] jurisdiction to enforce [international law] by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned.”

15. The US Military Tribunal considered itself a national court
From the Milch trial:
”It must be constantly borne in mind that this is an American court of Justice.”

16. Yet in the Justice trial the US Military Tribunal, with reference to the UN General Assembly’s Nuremberg Principles, noted that:
”The General assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. […] The jurisdiction of this Tribunal rests on international authority.”
And in the Flick trial:
”This Tribunal is not a court of the United States as that term is used in the Constitution of the [US]. […] It is an international tribunal established by the International Control Council.”

17. The Big Four prosecuted partly according to national law, partly according to international law
Their constitution was international, but each of the four courts as such was fundamentally national, as the states operated the courts individually

18. Establishment of the ICTY and ICTR
How were the ICTY and the ICTR established?
Legitimacy under international law?
Credibility?   
Over whom have the tribunals jurisdiction?
Tadic claimed that an international criminal court only could be established by voluntary treaty or by an amendment of the UN Charter.

19. Tadic also claimed that the ICTY was not ”established by law”, according to ICCPR art. 14:
The Appeals Chamber found that an international court could not
”be set up at the mere whim of a group of governments. [It must] be rooted in the rule of law and offer guarantees embodied in the relevant international instruments [in order to] be ’established by law”.

20. Tadic also claimed that a court could not be
established by an administrative decision (the Security Council resolution), but had to be established according to law adopted by a legislator.
The Appeals Chamber noted that this principle did not apply in an international context where there is no regular legislator. It sufficed that the court was established by an international organ with the competence to establish it.

21. The international criminal court (ICC)
How is this court established?
Over whom has the Court jurisdiction?

22. Is the establishment legitimate?
Lawful under international law?
Credibility?
Independence and impartiality?
Which is the role of the Security Council?

23. Hybrid criminal courts
Lebanon
In Mars 2006 the Security Council requested the Secretary General to negotiate an agreement with Lebanon regarding a hybrid court to prosecute the killings and attempted killings on prominent Lebanese politicians, including former Prime Minister Rafiq Hariri, committed from early 2004
A negotiated agreement was never signed by the parties, and instead a Security Council resolution made it binding
The court primarily applies Lebanese law, but it is seated in the Netherlands and it has both Lebanese and international judges

24. Kosovo
Crimes committed in the late 1990s in Kosovo.
No legitimate government to negotiate with; the court was established by the UN administration (UNTAET), which derived its competence from Chapter VII of the UN Charter
The court is nevertheless based on national law and is an integral part of the national judiciary. It is technically national, while its panels consist of two international and one national judge

25. Kambodia
June 2003; an agreement between UN and Cambodia to prosecute Red Khmer leaders for crimes committed under the regime of Pol Pot before a hybrid court.
Cambodia has insisted that the court, which has seat in Cambodia, shall only have national judges; but according to the final agreement there will be international judges as well.
Technically a national court with international participation

26. East Timor
As with Kosovo, no legitimate government to negotiate with
Established by UNMIK according to Chapter VII.
Technically a national court integrated into the judiciary of East Timor 

27. Bosnia
Prosecute crimes committed during the conflict
Started as initiative between ICTY and UN High Commissionaire for Human Rights
A main point is to take some of the caseload from the ICTY (mandate ends in 2010)
The legal foundation is a specific Bosnian law; it is technically national, something which was confirmed in Stankovich (ICTY, 2005):

28. The panels nevertheless have a majority of international judges
”The State Court of Bosnia and Herzegovina, of which the War Crimes Chamber is a component, is a court which has been established pursuant to the statutory law of Bosnia and Herzegovina. It is a court of Bosnia and Herzegovina, a ‘national court’.”
The panels nevertheless have a majority of international judges
But after 5 years, a majority of national judges
And by 2010, only national judges

29. Sierra Leone
The statute of the SCSL is an integral part of an agreement between UN Secretary General and Sierra Leone (2000).
The agreement was adopted on the initiative of the UN Security Council.
The SCSL does not, unlike the ICTY and ICTR, derive its power from UN Chapter VII, but from the agreement; i.e. from the jurisdiction of Sierra Leone
Yet, the curt noted in Taylor that:

30. ”The agreement between the united Nations and Sierra Leone is thus an agreement between all members of the united Nations and Sierra Leone. This fact makes the agreement an expression of the will of the international community.”
The question as to the national or international status of the SCSL was important with regard to the issue of immunity (of Taylor)
The SCSL is probably international, due to the fact that it is not an integral part of the Sierra Leone judiciary