ULUSLARARASI KAMU HUKUKU I

Classical international law did not focus on international crimes, because individuals were considered as objects (rather than subjects) of international law. Individuals were not endowed with any rights or duties, with the exception of piracy, under international law that could be enforced by any state under its municipal law.

After the Second World War, revolutionary changes came in this area. The Allied powers set up two International Military Tribunals (Nuremberg Tribunal in 1945 and Tokyo Tribunal in 1946) to try the criminals who committed war crimes, crimes against humanity, crimes against peace, and conspiracy to commit these crimes.

The Charter of Nuremberg and Tokyo tribunals had four counts of offenses:

• Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907, the Treaty of Versailles, violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland, and the 1928 Kellogg-Briand Pact.

• War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.

• Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.

• Conspiracy to commit these crimes

These tribunals consisted MAINLY of judges from the victorious States and NO JUDGES from the defeated States was in violation of the principle of nemo judex in causa sua (no one can be a judge in his own case).

Consisting mainly of judges from the victorious States was in violation of the principle of nemo judex in causa sua (no one can be a judge in his own case).

The Court is composed of the following organs (Art.34):

• the Presidency;

• an Appeals Division, a Trial Division, and a Pre-Trial Division;

• the Office of the Prosecutor;

• the Registry.

Article 7 defines crimes against humanity as acts when “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Under this, it lists the following acts:

• murder;

• extermination;

• enslavement;

• deportation or forcible transfer of population;

• imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

• torture;

• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

• persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds that are universally recognized as impermissible under international law;

• enforced disappearance of persons;

• the crime of apartheid;

• other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

According to Article 31 of the Statute, person shall not be criminally responsible if, at the time of that person’s conduct):

• he/she was suffering from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct;

• the person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct;

• the person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person;

• the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress.

An act of terrorism amounting to international crime should have an international element, that is, it should involve two or more states. Terrorist activities carried out within a state are criminal offences punishable under the relevant laws of the state concerned. On the other hand, terrorist acts amount to an international crime when:

• Acts are not limited to one particular state but spill over to other states in their effects;

• Acts are carried out with the support or acquiescence of the state where the terrorist organization is located, or they are state-sponsored terrorist acts; and

• Acts are carried out on a large scale and are serious in nature, hence they are the concern of international community and a threat to international peace.

In September 2006, the General Assembly also adopted a “Global Counter-Terrorism Strategy.” The Strategy holds a special significance, because it is for the first time that all members of the United Nations had agreed to a common strategic and operational framework to fight terrorism. The Strategy forms a basis for a concrete plan of action: to address the conditions conducive to the spread of terrorism; to prevent and combat terrorism; to take measures to build state capacity to fight terrorism; to strengthen the role of the United Nations in combating terrorism; and to ensure respect of human rights while countering terrorism

The conclusion of numerous other treaties have made the following acts international crimes: aircraft hijacking, unlawful acts against the safety of civil aviation, trafficking in women and children, trafficking in narcotic drugs, counterfeiting of currency, kidnapping of diplomats and taking of hostages

mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused

Special Tribunal for Lebanon (2006) (investigating the assassination of Rafik elHariri)

The Charter of these tribunals had four countsbof offences:
• Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907, the Treaty of Versailles, violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland, and the 1928 Kellogg-Briand Pact.
• War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.
• Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.
• Conspiracy to commit these crimes.

The ICTY has also been criticized, among others, for the following reasons:

The Tribunal manifests the failure of the UN Security Council 

The Tribunal has awarded very mild sentences

The Tribunal has been claimed to be antidemocratic and in violation of national
sovereignty and formed part of coercive order created by the Security Council.

Article 36 of the Rome Statute outlines the qualifications and procedure of election of the judges of the Court. The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase

The Court is composed of the following organs (Art.34):
• the Presidency;
• an Appeals Division, a Trial Division, and a Pre-Trial Division;
• the Office of the Prosecutor;
• the Registry

The Registry of the Court is headed by a Registrar, who is the principal administrative officer of the Court. The Registrar exercises his/ her functions under the authority of the President of the Court. The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court

Under the Rome Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group; and
• forcibly transferring children of the group to another group.

The important aspect in the exercise of jurisdiction by the ICC is that it is complimentary to the national criminal justice systems. The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute