Criminalizing the breaches to the cardinal principles of IHL
and the rebirth of ICL
Introduction
The tragic events in Yugoslavia and Rwanda have led the Secourity Council to establish two ad hoc
tribunals (ICTY and ICTR). These international criminal jurisdictions, whether esisting or in fieri,
have for task the persecution of the perpetrators of certain violations of human righs which can be
committed in times of war (violations of IHL) or at any time (crimes against humanity, genocide).
Those Tribunals gave an important contribution in the implementation of IHL through ICL and, at
the same time, criminalising the gross violations of IHL, put the basis for the modern ICL. They
have rekindled the interest and hope for the creation of a permanent International Criminal Court
(ICC).
1. Criminalizing the principles to cardinal breaches of IHL
Ad hoc Tribunals: Why and How
• The ICTY and ICTR were established for its predicted deterrent effects on future violations of
IHL, therefore, contributing to a reduction of future threats to peace.
• Between 1993 and 1994 the SC established two ad hoc Tribunals for punishing the perpetrators of
grave breaches and other violations of law and customs of war in Yugoslavia and Rwanda.
• There are two main reasons for this distinct procedure: First, treaty processes are generally very
lengthy. Second, any state directly affected by the establishment of an international tribunal
would have refused to be party to the treaty, thereby rendering the tribunal ineffective.
• The advantages of Chapter VII resolutions are thus their expeditious nature and their binding
effect upon all UN Member States by virtue of Art. 25 UN Charter.
• The establishment of the tribunal by a SC resolution also has legal consequences. The Tribunal’s
jurisdiction is derived from its Statute, given by the SC which itself does not possess criminal
jurisdiction and is not a legislature.
• However, the absence of a legislature within the UN system does not deprive the SC of the
possibility to establish an international tribunal if it is acting pursuant to the authority of the UN
constitution, i.e. the UN Charter.
The establishment of the ad hoc Tribunals under Chapter VII
• Art. 39 UN Charter provides the SC with the power to determine the existence of a threat to
peace, a breach of peace or act of aggression and make the necessary recommendations with a
view of maintaining or restoring international peace and security in accordance with Arts. 41 and
42 UN Charter. The SC is empowered to take enforcement measures to bind UN Member States
and to override certain international obligations.
• Yet, the determination of what constitute a threat to international peace and security is a formal
rather than a substantive hurdle. However, a more fundamental difficulty in establishing the limits
of this concept is the apparent link between such determinations and the political willingness to
take measures in response to particular situations.
• In the exercise of this very large spectrum of powers, the Security Council enjoys a very wide
freedom of decision and action, therefore “une menace pour la paix au sens de l’Article 39 est une
situation dont l’organe compétent pour déclarer une action de sanctions déclare qu’elle menace
effectivement la paix”. (Combacau)
• Discretionary power of the SC under chapter VII (Tadic, Jurisdiction 1995, §28-29)
• In SC Resolution 827, establishing the ICTY, the SC determined that the armed conflicts in the
FRY constituted a threat to international peace and security, even in case of non-international
conflicts. The establishment of an international tribunal is neither a measure under Art. 42 on
military actions and the use of force, nor a provisional measure under Art. 40.
• It rather falls under Art. 41 UN Charter, i.e. measures ‘not involving the use of force’. The
examples mentioned under this Article are merely illustrative, not excluding other non-military
measures. The negative wording of Art. 41 implies that the activity of a judicial organ, dispensing
justice according to law could constitute one of those non-military means to restore international
peace. Even if the SC itself is not a judicial body and possesses no judicial authority, by creating
the ICTY sand ICTR it acted in its capacity as international peacekeeper.
SC Res 827 (1993): establishment of the ICTY
Determining that this situation continues to constitute a threat to international peace and security,
Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad
hoc measure by the Council of an international tribunal and the prosecution of persons responsible
for serious violations of international humanitarian law would enable this aim to be achieved and
would contribute to the restoration and maintenance of peace,
Believing that the establishment of an international tribunal and the prosecution of persons
responsible for the above-mentioned violations of international humanitarian law will contribute to
ensuring that such violations are halted and effectively redressed
SC Res 955 (1994): establishment of the ICTR
The Security Council [...]
Determined to put an end to such crimes and to take effective measures to bring to justice the
persons who are responsible for them,
Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible
for serious violations of international humanitarian law would enable this aim to be achieved and
would contribute to the process of national reconciliation and to the restoration and maintenance
of peace,
Believing that the establishment of an international tribunal for the prosecution of persons
responsible for genocide and the other above-mentioned violations of international humanitarian
law will contribute to ensuring that such violations are halted and effectively redressed,
The legislative power of the SC...
• Credibly, the political more than legal approach of the SC in the maintenance of peace and
security gave rise to problems when it came to its quasi-judicial activities under Chapter VII,
since those are hardly compatible with its mandate under the Charter.
• the UN was not designated for legislative functions and therefore it lacks of that system of checks
and balances present in any constitutional system. The vexata questio of judicial control over SC
actions is unsolved in the Charter, where every organs is “fundamentally free to act within the
powers attributed to it”
• Be that as it may, the “textual constraints” fades in light of States’ acceptance and practice. The
creation of the ICTY and ICTR was even endorsed and encouraged by the General Assembly, the
representative organ of the UN, in several of its resolutions, demonstrating that the membership of
the UN deems the creation of the ICTY and ICTR was lawful
• The Effect of Awards ICJ Advisory Opinion demonstrates that the General Assembly, which
does not possess judicial powers itself, may establish an administrative tribunal in order to
exercise its functions under the Charter. It did not thereby delegate the exercise of its powers to
the tribunal.
• Applying this to the SC, the measure of creating the Tribunal was adopted in response to a
particular situation constituting a threat to peace, and was thus aimed at putting an end to that
threat.
• The SC did not intend to delegate some of its functions to the ICTY nor was it exercising powers
that were not conferred on it by the Charter, the Constitution of the UN.
...And the criminalization of violations of laws and customs of war
• The provisions for the criminalisation of the violations of the grave breaches are contained in the
four Geneva Conventions (arts. 49/50/129/146) and in Article 85 AP I
• The divergence between the violations of international humanitarian law in general and the
provisions characterised as grave breaches is in the enforcement: grave breaches require “the
adoption of a national legislation and the application of the aut dedere aut judicare principle as
means of providing states with universal jurisdiction over the most serious war crimes committed
during international armed conflicts”
•
Of course, States were not ready to accept the exercise of universal jurisdiction in their own
internal affairs, that’s why the grave breaches’ regime was not foreseen in the law of NIACs, not
even in the APII, where, on the contrary, Article 3.2 expressly restates the non-intervention
principle
• In the law applicable to NIACs, namely Common Article 3 and APII, the absence of the grave
breaches’ regime led to the conclusion that the violations of those provisions were not
criminalised.
• As of 1990, it was widely accepted that the law of war crimes did not apply in NIAC, nor there
was a customary law encompassing the criminal element of war crimes in internal conflict.
• I.E: “IHL applicable to non-international armed conflicts does not provide for international penal
responsibility of persons guilty of violations”1
• However, the Statute of the ICTY expressly criminalises the violations of laws and customs of
war (Article 3 Statute) and the Statute of ICTR criminalises the violations of Article 3 Common
of the four Geneva Conventions and AP II (Article 4 Statute)
• The milestone was laid down in the Tadic decision (AC Merits, 1999) and clearly the existence of
the grave breaches’ regime in IAC clearly helped in the criminalisation of the same acts also in
NIACs.
• The Tribunal sentenced that a certain number of rules among those applicable to the conduct of
hostilities in IACs “have gradually been extended to apply to internal conflicts”, playing in this
way a fundamental role in the crystallisation of such norms as customary international law.
Criminalization of violations of IHL: The basis for modern ICL
1
See PLATMER, The Penal Repression of Violations of International Humanitarian Law Applicable in Noninternational Armed Conflicts, 30 IRRC (1990) 409 ff.., at 414
The creation of the ICTY and ICTR contributed to the integration of crimes against humanity and
war crimes in International Criminal Law and constituted a step forward.
The rebirth of ICL
International Criminal Law (ICL) constitutes the ius post bellum.
This body of law, comprised of a narrow set of rules, was dormant for the period that followed the
Nuremberg Trials.
ICL consists of rules criminalizing at the international level core international crimes, for which
there is, next to domestic, concurrent international jurisdiction:
•
•
•
•
War crimes
Crimes against humanity
Genocide
Aggression
Violations of International Humanitarian Law (IHL) were the basis for the development of ICL.
Security Council and ICL
The Security Council greatly contributed to the rebirth of ICL with the establishment of the two ad
hoc international criminal Tribunals for the Former Yugoslavia and for Rwanda.
ICTY: SC Res 827 (1993)
ICTR: SC Res 955 (1994)
Legitimacy
•
The ad hoc Tribunals were created ex post facto and were given retroactive jurisdiction; The
legitimacy of their establishment has been questioned with regard to the competence of the
SC, the principle that a tribunal must be established by law and the principle of non
retroactivity.
•
Tadic, AC, Jurisdiction, 1995, paras 39, 42-47:
* The principle that a tribunal must be established by law at the international level means that the
tribunal must be rooted in the rule of law, i.e. ‘set up by a competent organ in keeping with the
relevant legal procedures, and […] observes the requirements of procedural fairness.’ These
conditions were fulfilled.
* The principle of non retroactivity with regard to ex post facto tribunals is not an ‘important
consideration’; an international tribunal need not be pre-established.
Nullum Crimen Sine Lege?
The Tribunals were created with the limitation that they should apply only rules of customary law
(and treaty rules that are customary reflections). The ICTY extended its own jurisdiction to treaties
which do not constitute customary law but are binding for the parties (Tadic, AC, Jurisdiction, para.
143).
BUT…
•
Does not an ex post facto tribunal by definition violate the principle of nullum crimen sine
lege, which is of customary nature in international law?
•
Do not the Statutes of the Tribunals, which for a considerable part do not reflect customary
law, constitute retroactive penal legislation?
Nature of the ad hoc Tribunals
The ICTY and the ICTR were created as subsidiary organs of the Security Council. This means
that:
•
their jurisdiction is ‘granted’ by the UN SC and they were imposed upon UN member states
by virtue of Art. 24 UNCh.
•
their Statutes are UN Documents (Secretary General Report for the ICTY, SC Resolution for
the ICTR)
•
the SC contributed to the development of ICL, inter alia by criminalizing violations of IHL
in non-international armed conflicts (ICTR Statute)
•
contrary to the Nuremberg Tribunal, they are not ‘victor’s justice’, but organs of the
international community acting as a whole.
The Security Council and the International Criminal Court
The ICC is the first permanent international criminal court with potentially universal jurisdiction.
Although, contrary to the ad hoc Tribunals, is was product of a treaty and not a SC Resolution, the
SC retains considerable power and plays an important role with regard to the ICC:
•
I. Art. 13(b) ICC Statute:
The SC may refer a situation to the Court, thus triggering the Court, even when it concerns crimes
committed in the territory and/or by nationals of states non parties to the ICC Statute. Through the
SC Council triggering mechanism, states non members to the ICC Statute are subjected to the
jurisdiction of the ICC.
•
II. Art. 16 ICC Statute:
The SC may ask for a deferral of an investigation or prosecution of the ICC, before or after their
initiation, pursuant to a Resolution adopted under Chapter VII. The deferral is valid for 12 months
and may be renewed.
•
III. The crime of aggression
The ICC has jurisdiction over the crime of aggression, a typical crime of the state, but cannot
exercise it until the states parties agree upon a definition. According to the definition adopted by the
Assembly of the states parties in Kampala in June 2010, in order for the ICC to exercise jurisdiction
over the crime of aggression, a determination by the SC that there has been an act of aggression is
prima facie needed.
Impact of the SC power on the ICC
•
It has been debated whether the SC, by triggering the ICC, transforms it into a subsidiary
organ, in analogy to the ad hoc Tribunals, by extending the jurisdiction of the ICC to crimes
committed in territory and by nationals of states non-parties to the Statute by virtue of
Art.12(2) ICCSt, in order to match the needs of international peace and security. The SC can
moreover grant the ICC coercive powers beyond the Statute, by obliging states non-parties
to cooperate with the Court. According to this rationale, the ICC in cases of referral
functions not simply as an instrument, but as a subsidiary organ of the SC, and is bound to
act in conformity with the latter’s Resolutions rather than its Statute.
This position, however, can be challenged on multiple grounds.
•
The ICC is established as an independent institution (preamb.par.9 ICCSt and Art.2 of the
Relationship Agreement; by virtue of par.2 of the latter, the SC is implicitly obliged to
respect the principles of the Statute) and cannot change in nature on a case-by-case basis.
•
Its jurisdiction derives from and is delimited in its Statute, not some SC Resolution, and is
potentially worldwide, because states have through the Statute delegated their universal
jurisdiction over core international crimes to the Court.
•
The exercise of jurisdiction, however, is conditional and, in the case of crimes committed in
the territory and by nationals of states non-parties, referral by the SC, as an external
‘filtering’ mechanism, is a supplementary condition thereof-a substitute for the sovereign
equality imposed condition that the territorial or active personality state must have accepted
the jurisdiction of the ICC.
•
But the referral is not binding upon the Court and the exercise of its jurisdiction is still
subject to the conditions set by its Statute (chapeau of Art.13).
Conclusions
The SC had a crucial role in the rebirth of ICL and still retains some power in the framework of the
ICC. The experience of ICTY and ICTR have served as a basis for the establishment of a series of
hybrid internationalized Tribunals:
• Special Court for Sierra Leone: Security Council Resolution 1315 (2000)
• Special Tribunal for Lebanon: Security Council Resolutions1664 (2006) and 1757 (2007)
• Special Panels for East-Timor: created by UNTAET in June 2000, under the mandate of SC Res
1272 (1999)
• Extraordinary Chambers in the Court of Cambodia
However, those Tribunals were created by an agreement between the UN and the respective States,
pursuant to a Resolution of the SC, which later endorsed the agreements under Chapter VII