This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.
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unit_10.docxUnit Learning Objectives
After reading this unit, you will:
· Be able to explain the legal consequences of the outbreak of war between two or more states and how it alters the way international law operates during peacetime
· Understand critically the changing nature of wars since WWII ('international' and 'non-international wars') and the types of 'combatants' that fight wars, as well as the challenges of regulating the use of force in the face of changing military technologies and other changes
· Understand and comparatively assess the relationship between 'punitive justice' that focuses on punishing violations of rules on the use of force, and 'restorative justice' that attempts to repair harm caused by the use of force.
Unit Plan and Summary
This unit discusses the 'international laws of war'. The unit begins with a discussion of the rules governing how wars may start and end, and on the legal effects of war on relations between states. We then turn to a discussion of humanitarian law (laws for the conduct of war) that represent an attempt to translate moral/ethical notions of 'just war' (discussed in Unit 9) into legally binding rules. We also examine the categories of actions that constitute breaches of the laws of war, the prosecution of war crimes, and the operation of the International Criminal Court established in 2002 as the first permanent international tribunal for prosecuting violations of humanitarian law and other criminal offences. The unit concludes with a discussion of 'transitional justice' that has emerged as an additional tool to address the consequences of the use of force.
Outline
1. Laws on the Commencement and Termination of War
2. Legal Effects of War
3. Humanitarian Law: Laws on the Conduct of War (Jus in bello)
4. Humanitarian Law: War Crimes, Crimes against Peace and Crimes against Humanity
5. The International Criminal Court (ICC)
6. Transitional Justice
Readings
· von Glahn, Gerhard, and Taulbee, James Larry. “ International Humanitarian Law: War Crimes .” In Law Among Nations: An Introduction to Public International Law, 613-644. 10th ed. East Rutherford, NJ: Pearson, 2013.
Readings for Briefs
· Sadat, Leila Nadya. “ The International Criminal Court and Universal International Jurisdiction: A Return to First Principles .” In International Law and International Relations: Bridging Theory, 181-193. London, UK: Routledge, 2007.
· Leebaw, Bronwyn Anne. “ The Irreconcilable Goals of Transitional Justice .” Human Rights Quarterly 30, no. 1 (2008): 95–118.
Key Concepts
· Jus in Bello
· Non-combatant Immunity
· Double Effect
· Humanitarian Law
· Crimes against Humanity
· Crimes against Peace
· War Crimes
· Proportionality & Distinction
· Subjugation
· Armistice/Truce/Ceasefire
· Peace Treaty
· Unconditional Surrender
· International and non-international war
· Enemy Alien/Enemy Character
· Prisoners of War
· 'Enemy Combatants'
· Punitive Justice
· Transitional Justice & Restorative Justice
· Proprio Motuinvestigation
· Individual responsibility
· Complementarity
Laws On the Commencement & Termination of War
The overwhelming majority of wars since WWII have been 'non-international' wars. An 'international war' is one in which the main belligerents or combatants are the armies of two or more different states, whereas in non-international wars the combatants are heterogeneous, often comprising different groups within the same state as in a so-called 'civil war'. However, the distinction between an international and non-international war is not always clear-cut because some armed conflicts that began as 'civil wars' escalated into international wars (e.g. the Vietnam war), and in some cases, belligerents in a 'civil war' are armed and supported by other states (e.g. the Angolan). In other cases, the distinction is blurred by the ambiguity surrounding the international legal personality of the belligerents – are they sovereign states or not? This problem arises when some states extend recognition to one side in a war (e.g. the Biafran war in 1967). Historically, the laws of war applied only to international wars, but the Geneva Conventions and Protocols have sought to extend humanitarian law to cover 'non-international' wars.
Commencement of War
Early writers on international law maintained that a formal declaration of hostilities was required before the start of a war. State practice, however, has not always followed this pattern. For example, the USA never formally declared war on Vietnam; instead, there was a gradual escalation from 1965 onwards. Similarly, there was no formal declaration of war in the Korean War (1950-53), the Iran-Iraq war (1981-88), and the first Gulf War (January 18-February 15 1991). A formal declaration of war is not required in contemporary international law, however a dispute has to precede outbreak of armed hostilities (an unprovoked attack cannot be justified), and before outbreak of hostilities, attempts should have been made to resolve conflict by peaceful means as per Chapter 6 of the UN Charter (negotiation, etc).
Termination of War
Wars may end in one, or a combination, of several ways:
1. Cessation of hostilities: This occurs when wars end without a formal declaration of peace. Hostilities simply end and forces withdraw – as occurred at the conclusion of the Falklands/Malvinas war (June 1982) between Argentina and the UK. Here, no peace treaty was signed. Hostilities ended with surrender of Argentinean forces on the island. The two countries are still technically in a state of war.
2. Subjugation: This occurs with the total defeat of an enemy including the disintegration of its armed forces, government, and the total surrender of its populace. The closest example in recent history is Germany at the conclusion of WWII from May 1945 to September 1949. Subjugation does not itself end hostilities; a formal declaration of cessation of hostilities is required. Thus, for example, the UK and Germany were still technically in a state of war until July 1951 when the UK passed legislation and formally declared the end of hostilities with Germany.
3. Unconditional Surrender: This is largely a WWII phenomenon. It refers to a situation where a belligerent's armed forces are defeated and it offers to make peace without conditions attached. Japan on September 2, 1945 is a good example. Unconditional surrender by itself does not end hostilities. A formal declaration of cessation of hostilities is required.
4. Armistice/Ceasefire/Truce: These refer to a temporary cessation/suspension of hostilities between belligerents. Truce/armistice/ceasefires are virtually identical. All refer to a war agreement concluded between belligerents, and they envisage a future resumption of hostilities, since they merely suspend active hostilities. Belligerents that sign an armistice/truce are still technically in a state of war. There have been numerous examples of armistices suspending hostilities – e.g., the Korean War July 27, 1953. Since 1948, UN forces have supervised and monitored ceasefires beginning in 1948, with the UN Truce Supervision Organization (UNTSO) in the Middle East.
5. Peace Treaty: This is the preferred method of terminating a war. None of the methods above represents a legal termination of war in international law. In all those cases, the belligerents are technically in a state of war until such time they conclude a peace treaty. Once a peace treaty is signed, all international law rules that apply during peacetime come into effect, and all rules that apply during wartime are suspended. For example, the Treaty of Peace and Friendship between the Peoples Republic of China (PROC) and Japan (entered into force in Oct 23, 1978) restored the relations between those two countries.
Legal Effects / Consequences of War
When war breaks out between two or more states, many of the rules of international law that apply in peace time are replaced by the 'international laws of war', particularly in the areas of diplomatic relations, the rights of aliens, and sovereign immunity.
Diplomatic Relations
With the outbreak of war, all diplomatic relations between belligerents are terminated. Diplomatic personnel of the belligerents are to be allowed sufficient time to leave the territory of the affected states. Diplomatic relations with non-belligerent states are not affected.
Treaties
Opinions differ on the effects of war on treaties, but there are three broad areas of agreement:
1. At commencement of war, treaties relating to the conduct of war immediately come into effect. All other bilateral treaties – economic, political, social, etc, – are immediately abrogated for the belligerents. Certain non-war treaties, however, remain in effect, including treaties recognizing title to territory (because under UN Charter article 2[4] any form of territorial acquisition through conquest/force is illegal). In addition, all multilateral treaties remain in effect. It is only bilateral treaties existing between the two belligerents that are abrogated.
2. Pre-war treaties between belligerents are reinstated after a peace treaty is signed.
3. In the absence of a formal peace treaty, the belligerents are still technically in a state of war and hence cannot carry out normal relations. For example, the two Koreas since 1950; Israel and its neighbours since 1967 and 1973 (except Egypt, and Jordan, which concluded peace treaties with Israel).
4. Peace treaties reactivate all pre-war treaties. However, if the peace treaty is silent on the question of reactivation, then all pre-war treaties between the belligerents are still void. Most peace treaties are explicit on this issue. For example, the 1947 US peace treaty with Italy, and the 1951 peace settlement with Japan which contained explicit clauses reactivating pre-war agreements.
Customary law
When war begins, customary rules of war not covered by existing conventions, come into effect. These take precedence over all other customs in the relationship between the belligerents.
Property
When war begins, public property of an enemy state may be seized or confiscated without compensation. This, however, does not normally apply to diplomatic property, which is left in the care of a neutral state. The private property of alien nationals may also be subject to confiscation.
Relations between Nationals of Belligerents
There are no conventions or customary rules regulating this aspect. It is a matter for the municipal law of countries concerned. Some countries, e.g., the USA and the UK, require their nationals to sever all relationships (economic, cultural, etc) with nationals of an enemy state. All contracts are also suspended.
Status of Enemy Nationals: Concept of 'Enemy Alien' or 'Enemy Character'
1. When war occurs, every national of one belligerent becomes an enemy of the other belligerent. Even citizens of neutral countries are not immune: they also assume enemy character when living in the territory of a belligerent. That is, any individual (or firm) of non-enemy nationality voluntarily resident in enemy territory, is considered an enemy alien. For example, if Canada was at war with Denmark any US national/firm voluntarily residing or doing business in Denmark will be considered an enemy of Canada.
2. A national of an enemy state who is allowed to remain in a belligerent's territory and to conduct business is not considered an enemy alien. Hence, with the same example of a hypothetical Canada-Denmark war, a Danish national who is allowed by the Canadian government to reside/work in Canada will not be considered an enemy alien.
3. Nationals of a belligerent living in a neutral state also assume enemy character (for the other belligerent). Therefore, with the same example of a Canada-Denmark war, a Danish national living in the neutral USA, is still considered an enemy national by the Canadian government.
4. The same rules also apply to corporations. However, there is the added problem of determining the nationality of some corporations, as noted in Unit 6.
5. In the past, nationals of an enemy state residing in the territory of one belligerent were subject to detention/expulsion. The internment during WWII of Japanese nationals and people of Japanese descent in the USA and Canada, even though many were American and Canadian nationals is a good example. Attitudes have begun to change on this issue. Practice that is more recent is for the state concerned to allow them sufficient time to leave voluntarily. States, however, are allowed to place all kinds of restrictions on enemy aliens including restrictions on movement, residence, work, etc.
Humanitarian Law: Laws On the Conduct of War (jus In Bello)
The modern origins of Humanitarian law date back to the creation of the International Red Cross in 1864 – prompted by the need to alleviate suffering during war. Also in 1884 we had the first Geneva Convention on the Amelioration of the Condition of Wounded and Sick of Armed Forces in the Field, followed by the 1899 Hague Convention on Maritime Warfare. The most important sources of laws for the conduct of war today are the four Geneva Conventions of 1949 and the two Protocols to the Geneva Conventions added in 1977. A third Protocol was added in 2005. The International Committee of the Red Cross (ICRC) is the custodian of international Humanitarian Law. 1
The Geneva Conventions and Protocols specify who may participate in war, and how war may be fought legally. They also place limits on how an enemy may be 'injured' by a belligerent. The Geneva Conventions specifically protect people who are not taking part in the hostilities (non-combatants including civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war. The Conventions and their Protocols call for measures to prevent or put an end to all breaches. Together, the Conventions and Protocols represent an attempt to translate moral/ethical principles from various sources regarding Jus in Bello – the 'just conduct of war' – into legally binding rules.
The Geneva Conventions and Protocols include the following:
The first Geneva Convention
The first Geneva Convention protects wounded and sick soldiers on land during war. This Convention represents the updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906 and 1929. It provides protection for the wounded and sick, but also for medical and religious personnel, medical units and medical transports.
The second Geneva Convention
The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war. This Convention replaced Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention.
The third Geneva Convention
The third Geneva Convention applies to prisoners of war. This Convention replaced the Prisoners of War Convention of 1929. It broadens the categories of persons entitled to prisoner of war status and defines the conditions and places of captivity, particularly with regard to the labour of prisoners of war, their financial resources, the relief they receive, and the judicial proceedings instituted against them. The Convention establishes the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
The fourth Geneva Convention
The fourth Geneva Convention affords protection to civilians, including those in occupied territory. Conventions adopted before 1949 were concerned with combatants only, not with civilians. The events of World War II showed the disastrous consequences of the absence of a convention for the protection of civilians in wartime. The Convention adopted in 1949 takes account of the experiences of World War II. It contains a short section concerning the general protection of populations against certain consequences of war, without addressing the conduct of hostilities, as such, which was later examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. It spells out the obligations of the Occupying Power vis-à-vis the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory. It also contains specific rules for the treatment of civilian internees.
Article 3
Article 3, common to the four Geneva Conventions, for the first time covered situations of non-international armed conflicts. These types of conflicts vary greatly and include traditional 'civil wars', internal armed conflicts that spill over into other states or internal conflicts in which third States or a multinational force intervenes alongside the government. Common Article 3 establishes fundamental rules from which no derogation is permitted. It is like a mini-Convention within the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts that are not 'international' in character.
The Additional Protocols
The Additional Protocols: The number of non-international armed conflicts and wars of 'national liberation' increased sharply in the two decades after the adoption of the four Conventions. In response, two Protocols additional to the four 1949 Geneva Conventions were adopted in 1977. They strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are fought. An amendment to the Protocol I in 1977 classifies wars of 'national liberation' in which people are fighting for self-determination against colonial domination (discussed in Unit 11), as international wars. The effect of this is to extend all the protections and rules outlined in the four Conventions to participants in wars of national liberation. Protocol II was the first-ever international treaty devoted exclusively to situations of non-international armed conflicts. In 2005, a third Additional Protocol was adopted creating an additional emblem, the Red Crystal, which has the same international status as the Red Cross and Red Crescent emblems.
General Principles contained in the Geneva Conventions & Protocols
Observe the laws of war
Combatants must be knowledgeable about, and observe at all times, the laws of war.
Non-combatant Immunity & Distinction
Only combatants (soldiers, military installations, supplies, etc) are legitimate targets in war. Non-combatants (civilians, civilian centers, medical facilities and personnel, etc) should never be targeted in war. However, humanitarian law recognizes civilian deaths do occur during armed conflict, even when use of force is proportionate. The principle of 'distinction' stipulates that a violation occurs if the use of force is intentionally directed against non-combatants.
(Military) Necessity & Proportionality
This has three interrelated components designed to limit the harm caused by military force. First, the use of force should have a clear military goal, and be targeted at a military objective. Second, the use of force must be in proportion to the (military) threat and military objectives sought. Third, combatants should use the minimum force necessary to achieve those goals so as not to cause undue harm to non-combatants, and avoid excess pain, suffering, loss of life, and destruction of property. A violation occurs if an attack is launched on a military target with military goals with the knowledge that civilian casualties would be 'excessive' in relation to the anticipated military advantage.
Hence determining the legality of the use of force requires an assessment of:
1. the anticipated harm to civilians
2. the anticipated military advantage, and
3. Whether 'a' was 'clearly excessive' in relation to 'b'.
This principle assumes that the distinction between combatant and non-combatant is always clear-cut. This may have been the case in more 'traditional' inter-state wars fought by 'regular forces' (professional' armies with clearly identifiable uniforms and chains of command). Is it true in many contemporary armed conflicts where combatants include 'irregular forces', and in many cases child soldiers? What about infrastructure (roads, bridges, etc)? What about ostensibly 'civilian' factories that produce weapons or food/supplies for soldiers?
Short Movies
Two Hard Cases: Dresden (1945) and Hiroshima and Nagasaki (1945)
Actions Prohibited by the Geneva Conventions & Protocols
The laws of war prohibit certain acts, the commission of which constitutes a war crime. Examples of actions that constitute war crimes include:
1. Using chemical or biological weapons
2. Killing by 'treachery'
3. Killing an unarmed person or one who has surrendered, or refusing to allow for surrender
4. Mistreating Prisoners of War (see section 2.4 below)
5. Employing arms, projectiles or material calculated to cause 'unnecessary suffering'.
6. Employing deceptive methods (e.g. enemy's uniform, flag, etc)
7. Compelling a national of an enemy state to take actions against their own state
8. Attacking or bombarding, by whatever means, civilian centres such as towns, villages, etc.
9. Targeting and destroying cultural, historic, religious, scientific, medical artifacts and buildings.
10. Clandestinely gathering information with the intention of aiding the enemy (i.e. spying) is prohibited but use of 'ruses' is permitted.
What is the legal status of nuclear weapons? At present, there is no specific convention or rule limiting or prohibiting use of nuclear weapons in war. The Non-Proliferation Treaty (NPT) adopted in 1968 does not say anything about the use of nuclear weapons in war. The NPT restricts the spread of nuclear weapons by restricting dissemination of technologies. States, which do not already possess nuclear weapons, waived their right to acquire nuclear weapons and nuclear weapons states, in turn, pledged to extend security guarantees to any non-nuclear state facing nuclear aggression from a nuclear state. Specific arms control treaties such as between USA and USSR/Russia create specific legal rights and obligations between parties to those treaties.
Laws Governing War Participants
Combatants in a war must meet certain conditions in order to be protected by the Geneva Conventions. These conditions include:
1. They must be regular armed forces/militias/volunteer forces belonging to a 'belligerent community'.
2. There must be a clear chain of command.
3. Combatants must carry arms openly.
4. Inhabitants of a territory who spontaneously take up arms to defend that territory can be considered combatants provided they meet condition 'c'.
5. Irregular forces are recognized and hence protected under the Geneva conventions only if they meet conditions 'b' and 'c'.
6. Guerilla groups and terrorist organizations which do not meet these criteria cannot enjoy protection under the laws of war (e.g. if caught, they can be shot). Mercenaries are in the same category as irregular forces.
7. Foreign Volunteers e.g. UN Forces, are officially recognized as regular forces.
Treatment of Prisoners
The Geneva Conventions also offer protections to prisoners of war (POWs) and specify how they are to be treated. In order to qualify as a POW, however, a combatant must meet the criteria listed in 3.9.
1. POWs are in the custody of capturing state not of capturing army, are entitled to humane treatment, and are to be given the same maintenance as soldiers of the capturing army of equivalent rank.
2. POWs cannot be forced to divulge information. All they are required to give is family name, rank, date of birth, etc.
3. No physical or mental duress or coercion (torture) may be applied to POWs.
4. POWs are to be evacuated to a location as far away from the frontlines as possible in order that they are not placed in danger.
5. POWs are not to be placed in certain locations to render those locations immune from enemy military operations (i.e. they cannot be used as 'human shields').
6. POWs are to be released and repatriated soon after the cessation of hostilities.
The term 'enemy combatants' originally referred to members of the armed forces of states that were at war, who could be detained as POWs under the Geneva Conventions. However, the term became somewhat controversial in the context of the 'war on terror' waged in the aftermath of the September 11, 2001 terrorist attacks in the USA. The government of US President G.W. Bush used the term enemy combatant to refer to 'unlawful combatants' such as members of al Qaeda and the Taliban who did not qualify as regular POWs, and therefore were not entitled to protection under the Geneva Conventions.
Humanitarian Law: War Crimes, Crimes Against Peace & Crimes Against Humanity
Humanitarian law also includes stringent rules to deal with 'grave breaches' of the laws of war. Those responsible for 'grave breaches' must be sought, tried or extradited, irrespective of the nationality they may hold.
Generally 'grave breaches' may fall into one or more of the following categories:
War crimes
War crimes are violations of the laws for the conduct of war as specified in The Hague and Geneva Conventions. The ICRC is the principal organ for overseeing these rules. In the event of flagrant violations, War Crimes Tribunals are established. A war crime is defined as any act which may be punished by one belligerent upon capture of the offender. The Geneva Conventions identify four kinds of war crimes:
1. Violations of the rules governing warfare and treatment of prisoners;
2. Acts committed by persons not recognized as combatants;
3. Espionage, sabotage and war treason; and
4. All marauding acts
Defense of superior orders (i.e., acting on orders of a commanding officer) is not recognized, but it may however factor in the type of punishment but not in conviction of guilt. Superior officers are responsible for all acts committed by subordinates, even if they gave no direct orders. A commanding officer cannot plead ignorance of the offences that were committed. The presumption is that he/she should have known and should have taken measures either to prevent the acts or to punish the offenders.
Crimes against Peace
These involve the planning, initiation and waging of aggressive (offensive) war in violation of article 2(4) of the UN Charter, and the 1928 General Treaty on the Renunciation of War (Kellog-Briand Pact) (see Unit 9).
Crimes against Humanity
These include genocide, mass murder, extermination, enslavement, forced deportations and other inhumane acts committed against a civilian population; and persecutions on political, racial or religious grounds, whether or not these were in violation of the domestic law of the country where the acts are perpetuated. Apartheid has been included as an international crime. International Criminal Acts, then, can occur in peacetime or wartime – there is no distinction (see 'universality principle' in section 3.5 in Unit 7 on Jurisdiction).
International War Crimes Tribunals
The main mechanisms for prosecuting and punishing violations of humanitarian law are national and international war crimes tribunals. A number of prominent international tribunals have been established since the end of WWII. These tribunals were 'ad hoc' in that they were created in the context of prosecuting offences in specific wars. Three examples of such 'ad-hoc' tribunals include:
The Nuremberg Tribunal
This was established in August 1945 with the London Four-Power Agreement (USA-UK-USSR-France). It was comprised of four judges, one from each of the four parties to the London Agreement. Tribunal had jurisdiction in crimes against peace, war crimes and crimes against humanity. The trials began November 20th, 1945 and ended August 31, 1946. Judgements were rendered and sentences passed on Oct 1 1946.
Tokyo International Military Tribunal
This was established in June 1946 and judgements rendered on November 4th, 1948. Similar in jurisdiction to Nuremberg Tribunal, but had eleven judges from countries that had fought the war against Japan.
Bosnian War Crimes Tribunal
Established in 1993 in the Hague (Netherlands) by the UN Security Council to prosecute individuals accused of war crimes in the Bosnian War.
Criticisms of Ad-hoc War Crimes Tribunals
A number of criticisms have been levelled against ad-hoc international war crimes tribunals:
1. Legality: Some critics question the legality of offences such as 'crimes against peace' and 'crimes against humanity' especially in the context of the Nuremberg and Tokyo trials. The argument here is that these offences occurred prior to the UN Charter (Oct. 1945) and the Genocide Convention (1948). They argue that the "Inter-temporal principle" that specifies that international law is not retroactive, means that actions taken before the UN Charter and Genocide Convention came into effect cannot be prosecuted.
2. Neutrality: The criticism here focuses on the composition of the tribunals and the nature of the trials themselves. In both Nuremberg and Tokyo, all the judges came from the victorious allied powers. Critics argue that this created a bias in the proceedings. Judges, they argue, should have been selected from neutral countries and/or from the defeated states as well.
3. "A war crime is what the victorious declare it to be." The argument here is that political motives, revenge and a desire to punish, not justice, is the true motivation for war crimes tribunals. Critics note that in WWII and Bosnia, atrocities were committed by both sides (e.g. the carpet-bombing of Dresden; or by Muslims and Croats against Serbs) but none of these actions by the victorious sides were prosecuted.
The International Criminal Court (ICC)
The ICC, established by the Rome Statute (1998), provides a permanent forum for the prosecution of international criminal offences. Its creation was partly in response to criticisms of ad hoc tribunals. The ICC is an independent international organization that has a 'special relationship' with the UN. The Rome Statute entered into force in July 2002, and the court began operations in 2003, with its HQ in The Hague (Netherlands). By 2012, 121 states had ratified the ICC Statute.
The International Criminal Court has jurisdiction over:
1. Genocide and other crimes against humanity
2. War Crimes
3. It also has jurisdiction for offences committed in civil wars
The ICC initially does not have jurisdiction over "crimes against peace". This may be included at a future date, and debate continues on this issue.
International criminal law is based on the notion of individual responsibility: That any individual (minimum 18 years old), regardless of his/her status, position, nationality, etc. is to be punished in the event of a violation. The evolving paradigm of individual responsibility directly confronts traditionally held notions of internal sovereignty (the Act of State Doctrine and the Doctrine of Sovereign Immunity) by opening up the scope of sovereign jurisdiction exercised within territorial boundaries to international scrutiny. In effect, this represents a narrowing of the scope of domestic jurisdiction as mentioned in UN Charter article 2(7).
Structure of the ICC
The ICC is composed of five bodies: The Assembly of State parties, the Presidency, Judicial Divisions, Office of the Prosecutor, and the Registry.
Assembly of State Parties
This is the highest management, oversight and legislative body of the ICC. It is composed of representatives of states that have ratified and acceded to the Rome Statute. The Assembly of States Parties has a Bureau, consisting of a President, 2 Vice Presidents and 18 members elected by the Assembly for a three-year term, taking into consideration principles of equitable geographic distribution and adequate representation of the principal legal systems of the world. In 2003 the Assembly of States Parties also established the Permanent Secretariat. The Assembly decides on various items, such as the adoption of normative texts and of the budget, the election of the judges and of the Prosecutor and the Deputy Prosecutor(s). According to article 112 (7), each State Party has one vote and every effort has to be made to reach decisions by consensus both in the Assembly and the Bureau. If consensus cannot be reached, decisions are taken by vote.
Presidency
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years.
Judicial Divisions
The ICC is organized into Appeals, Pre-Trial and Trial Divisions. In February 2003, the Assembly elected eighteen judges for a term of three, six, and nine years. The judges constitute a forum of international experts that represents the world's principal legal systems elected as follows:
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Table 1 |
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Western European and others Group of States (WEOG) |
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7 |
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Latin American and the Caribbean Group of States (GRULAC) |
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4 |
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Asian Group of States |
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3 |
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African Group of States |
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3 |
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Group of Eastern Europe |
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1 |
All the judges are nationals of States Parties to the Rome Statute. The judges can hold office for a term of nine years and are not eligible for re-election, except for the cases provided by the Rome Statute. The judges elected for a term of three years are eligible for re-election.
Office of the Prosecutor
The Office of the Prosecutor is headed by the Chief Prosecutor, who is elected by the Assembly of States Parties and has full authority over the management and the administration of the Office, including the staff, facilities and other resources of the Office. The mandate is to conduct investigations and prosecutions of crimes that fall within the jurisdiction of the Court, that is, the crime of genocide, crimes against humanity and war crimes. At a later stage, once the States Parties have agreed to a definition of the crime of aggression, the Office will be empowered to investigate and prosecute this crime.
Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court.
Jurisdiction of the ICC
The ICC has automatic and compulsory jurisdiction. However, its mandate and the scope of its jurisdiction are defined and limited by the following:
Subject Matter
The Court's jurisdiction will be limited to the most serious crimes of concern to the international community as a whole (Universality Principle). It has jurisdiction with respect to the crimes of genocide, crimes against humanity and war crimes, all of which are fully defined in the Statute and further elaborated by the Elements of Crimes.
However, the ICC's jurisdiction is not retroactive to crimes committed before July 1, 2002 (when its statute entered into force) – the intertemporal principle. Even though the Court has jurisdiction over aggression, it will not exercise such jurisdiction until the crime has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed upon (state parties have not to date agreed on a definition of 'aggression').
Territorial and (active) Nationality Principles
Except when a case is referred to ICC by the UN Security Council, the jurisdiction of the ICC is limited to states that are Parties to the ICC Statute. Once a State becomes a Party to the Statute, it accepts the Court's jurisdiction with respect to crimes under the Statute. For the Court to exercise its jurisdiction, the territorial State (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute. 2
Complementarity
The ICC does not replace national courts, but complements national criminal jurisdictions. The Court will only investigate and prosecute if a State genuinely is unwilling or unable to prosecute. This will be determined by the judges. Unjustified delays in proceedings as well as proceedings merely intended to shield persons from criminal responsibility will not render a case inadmissible before the ICC.
Individual Responsibility
The Court only has jurisdiction over 'natural persons' aged 18 and above. Official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official does not exempt a person from criminal responsibility. Commanders and superiors will also be liable for criminal offences committed by forces under their effective command and control or effective authority and control.
Procedures of the ICC
The ICC has three sets of procedures for investigating, prosecuting and punishing offenders:
1. State Parties to the ICC may request the Office of the Prosecutor to investigate an issue/event (subject to territory/nationality principles).
2. Office of the Prosecutor may initiate an investigation independently of state parties (a proprio motu investigation), which must be authorized by the pre-trial chamber. Investigations are limited to State Parties under the territorial and nationality principles.
3. The UN Security Council may also refer an issue/case to the Office of the prosecutor. Here there are no preconditions/restrictions on the ICC's jurisdiction.
Transitional Justice
Transitional justice refers to a range of approaches that societies undertake to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law, and respect for individual and collective rights.
The growing importance of 'transitional justice' in part reflects recognition of the following:
1. The need to supplement the emphasis on punishing offenders (punitive justice) that informs criminal tribunals with an approaches that emphasise addressing the broader legacies of violence and armed conflict in society;
2. The differential effects of international and non-international armed conflict on societies and on social relations between groups in society. For example, in the aftermath of a traditional international war, a border separated ex-combatants, and victims of violence did not have to live in the same place as their aggressors. In many contemporary non-international wars perpetuators of violence are difficult to distinguish from their victims and often they have to live together. As a result, in many contemporary conflicts the outcome is often ambiguous, and lingering animosity among communities threatens to re-ignite hostilities. The differences between international and non-international wars are also evident in relation to the impact of the latter on longer-term societal recovery. One major set of consequences generated by many protracted non-international armed conflicts is that societies experience an extensive erosion of social trust, and a breakdown of societal institutions relating to family, community, and exchange relations. Facilitating the transition from war to peace thus requires repairing the social, economic, political and cultural conduits of social interaction. In making such a transition, societies must confront the painful legacy of the past in order to achieve a sense of justice for affected groups and individuals, to establish or renew civic trust, to reconcile people and communities, and to prevent future conflicts and abuses.
A variety of approaches to transitional justice are available, both judicial and non-judicial, and they seek to encompass broadly the various dimensions of justice that can help address these broader legacies of violence and contribute to social reconstruction.
Restorative Justice is a particular set of approaches within the broader category of transitional justice. Restorative justice emphasizes repairing the harm caused or revealed by criminal behaviour, which is best accomplished through cooperative processes that include all stakeholders, and transforming the traditional relationship between communities and their governments in responding to crime.
In this regard, there are important differences between restorative justice and the punitive justice that has traditionally informed the prosecution of war crimes and crimes against humanity. These differences are summarized below:
Punitive Justice
Punitive approaches, usually associated with criminal tribunals and courts, generally emphasize the following:
1. Forensic evidence – The preference is for scientific/factual evidence capable of independent corroboration
2. Presumption of innocence of offender
3. Burden of proof lies with prosecution
4. Punishment of offender if convicted for harm
Restorative Justice
Restorative Justice by contrast, often employs non-judicial methods that emphasize the following:
1. Encounter & Inclusion: Create opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath. Provide opportunities for parties with a stake in a specific crime to participate in its resolution
2. Truth-Seeking: Determining the full extent and nature of past abuses through truth-telling initiatives, including national and international commissions, and traditional/customary methods. Here we have extensive use of non-forensic evidence including the use of 'narratives', 'storytelling' and dialogue.
3. Providing reparations: to victims including:
1. Compensation – usually monetary compensation
2. Restitution – usually involving the return of something valuable lost or stolen
3. Rehabilitation/reintegration – seek to restore victims and offenders to whole, contributing members of society – (e.g. through 'cleansing' ceremonies)
4. Symbolic – public apologies, revising recorded history.
4. Amends: Expect offenders to take steps to repair the harm they have caused (e.g. through some type of public service)
5. Promoting reconciliation within divided communities, including working with victims on traditional justice mechanisms and forging social reconstruction. Reconciliation is the ultimate goal of transitional justice and peacebuilding. It occurs when disputants develop a new relationship based on apology, forgiveness, and newly established trust.
Truth-seeking Commissions
In an increasing number of countries, local actors have begun to emphasize non-judicial truth-seeking measures. These have often taken the form of truth commissions – official inquiries into patterns of past abuse that seek to establish an accurate historical record of events. Many recent truth commissions have been established in countries as diverse as the Democratic Republic of the Congo, Ghana, Liberia, Morocco, Peru, Timor-Leste, Sierra Leone, and the United States.
