This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article is an insight into International Criminal Law, its sources and general principles. It also deals with the categorisation of crimes.
It has been published by Rachit Garg.
Table of Contents
International criminal law is a body of law that prohibits specific types of conduct that are considered serious crimes. It establishes procedures for investigating, prosecuting, and punishing crimes, as well as holding perpetrators personally accountable. A system of international criminal law has recently emerged, imposing direct duties on individuals and punishing transgressions through international agencies. The ad hoc Tribunals for the Former Yugoslavia and Rwanda, which were founded in the 1990s, could be considered the beginning of a global criminal justice system. For this branch of law to be respected, major crimes of international standards must be punished, especially given the seriousness of specific acts classified as war crimes, which must be investigated and tried by the international community as a whole.This article talks about international criminal law, its sources, general principles of international criminal law and the categorisation of crimes in detail.
What is International Criminal Law
International criminal law is a part of public international law. It is the body of laws, agreements, and norms that govern international crimes and their suppression, as well as regulations that tackle conflict and cooperation between national criminal-law systems. Criminal law makes antisocial behaviour illegal and punishable. Because each country’s laws reflect its values, there are occasionally considerable differences between the national laws of different countries, both in terms of the nature of the crimes and the acceptable sanctions.
Most international laws are involved with interstate trade, whereas international criminal law is concerned with individuals. Individuals, not governments or organisations, are held accountable under international criminal law, which prohibits and punishes unlawful behaviour. The rules, techniques, and principles of international criminal law involve liability, defences, evidence, court process, penalty, victim participation, witness protection, mutual legal assistance, and collaboration.
“International criminal law” basically refers to three main areas of the law.
- Extradition and other types of mutual legal assistance between various legal systems;
- A collection of countries or the international community as a whole that prohibits and punishes certain behaviours; and
- The operation of autonomous international legal systems, including courts and other enforcement mechanisms, in addition to national criminal law.
Sources of International Criminal Law
The five primary sources of international criminal law are treaties, customary international law, general principles of law, judicial decisions, and the writings of eminent jurists. These sources of international criminal law are expressly listed in Article 38(1) of the International Court of Justice Statute.
Article 38 of the Statute of the International Court of Justice specifies the sources of international law that regulate sovereign nation-state relations.
In Article 38, the following sources are mentioned:
- General or specific international treaties establishing norms expressly acknowledged by the opposing states;
- International custom, as evidence of a generally recognised practice that is legally binding
- Broad legal notions that civilised nations accept;
- Court decisions and the teachings of the most highly competent jurists from other nations may be employed as a secondary means of setting legal standards, according to the conditions of Article 59.
It is uncertain if Article 38 was meant to provide the Court with an exhaustive list of sources to be used at the time of its creation, but it is seldom considered a comprehensive list of international law sources today. However, there may be some misunderstanding regarding what the phrase ‘sources’ means, as the term is not defined in the Article. Article 38 is vital because it provides a fairly clear and explicit description of the most relevant sources to be consulted, both directly by the International Court of Justice and indirectly by other organisations that may decide international issues. As a result, Article 38 has been recognised as authoritative by both the Court and the states.
The following are the sources of International Criminal Law
Treaties serve as a source of international criminal law, either directly or indirectly. Direct sources of international criminal law are treaty-based international criminal legislation or conventions. Subsidiary sources, on the other hand, are those that come indirectly from existing agreements. The International Military Tribunals and The Rome Statute (1988), which contain a list of crimes and procedures for prosecuting them, are legal sources that have emerged directly from treaty formulations. Additional legal sources include The Hague Convention (1907), the Geneva Conventions (1949) and its additional protocols, the Genocide Convention (1949), and The Torture Convention (1984). As a result of the formation of treaties, all of these conventions were formed.
The statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), were both formed in response to UN Security Council Resolutions 827 and 955, respectively, are other treaty-based sources of international criminal law.
International Customary Law
The International Court of Justice states in Article 38(1) that customs have two components. The first is practice, and the second is the mental element of the state, known as Opinio Juris. Both components were very well described in the North Sea Continental Shelf judgement of 1969. “In order to accomplish this result, two conditions must be satisfied. The acts in issue must not only form a well-established practice, but they must also be such, or carried out in such a way, as to reflect a belief that this practice is made mandatory by the presence of a rule of law demanding it. The idea of Opinio Juris Sive Necessitatis itself implies the demand for such a belief, i.e. the presence of a subjective element. As a result, the participating nations must think they are performing a legal obligation.”
However, International customary law cannot be the only basis for criminal prosecution. The applicable principles can be used if the custom gets codified.
General Principles of Criminal Law
The General Principles of International Criminal Law are positive international standards that must be implemented when present law fails to provide any remedy. Such a law is necessary when there is a lacuna in present international law. If a treaty or convention fails to provide a legal framework for a specific issue, basic principles of international criminal law must be used. The next section of this article focuses more on these concepts.
Judicial experience is one of the sources of international criminal law. This can be done in two ways: first, when courts recognise existing international criminal law principles by referring to precedents and preceding Opinio Juris, and second when courts strive to designate a norm as custom through their judgments. New customary standards are regularly developed by courts by drawing them directly from elementary considerations of humanity. They pronounce judgement on the state’s behaviour under the garb of compassion, expecting the state to follow the newly adopted statute.
General principles of International Criminal Law
International criminal law is based on a framework of general basic principles. They establish the reasons and conditions for prosecuting individuals for international law crimes (genocide, crimes against humanity, war crimes, and aggression), as well as other crimes against humanity’s peace and security. Every legal system necessitates basic principles to create the system’s overall orientation, provide broad concepts for proper legal interpretation when detailed rules on legal construction are insufficient or unhelpful, and allow courts to fill gaps in written or unwritten norms.
As international crimes are getting more complicated, because they include extraterritorial elements, it is becoming increasingly important to coordinate adherence to these rules. States must uphold them even while adhering to their own national criminal law principles as well as any particular principles included in regional agreements to which they are a party. The following are some of the general principles of international criminal law.
Basis of jurisdiction
A state has jurisdiction over its own territory which includes the power to make, interpret, and implement the law, as well as take legal action to enforce it. While enforcement authority is normally limited to national territory, international law recognises that under some circumstances, a State may regulate or adjudicate events that occur outside of its borders. Extraterritoriality is considered to be based on many principles. The following are some examples:
- The nationality or active personality principle (acts committed by citizens of the forum state);
- The passive personality principle (acts perpetrated against people of the forum State); or
- The protection principle (acts affecting the security of the State)
While state practice and opinion support these principles to varying degrees, they always need a connection between the act committed and the State asserting jurisdiction. Another basis for establishing extraterritorial jurisdiction is universal jurisdiction, which does not need such a connection. Universal jurisdiction refers to the assertion of jurisdiction over crimes regardless of their location or the nationality of the accused or victims.
Minor criminal offences are prohibited by law in most legal systems. Several legal systems, especially those based on common law, do not place statutory restrictions on the filing of criminal charges for major crimes. Legislatures in countries where civil law prevails have either set statutory limitations for serious crimes that are far longer than those for minor offences, or, like common law legislatures, do not allow the imposition of such limitations on serious criminal offences in anyway.
The use of criminal punishment is becoming increasingly limited. It does not exist under common law, and other legal systems severely restrict it. Where time limits for the most serious crimes exist, they are usually broad and do not apply to particular types of crimes or situations involving dangerous or repeat offenders.
Under international law, some offences are not subject to statutory limits. The 1949 Geneva Conventions and its 1977 Additional Protocols are silent on the topic of time limits for war crimes. Both prosecutions and sentence imposition are covered under the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. It includes both war crimes and crimes against humanity perpetrated during times of conflict and peace as a result of apartheid and genocidal actions. According to Article 1, it is retroactively applicable, and according to Article 4, state parties agree to repeal existing statutory limitations, introduce legislation, or take other measures to guarantee that limitations do not apply to such offences. Furthermore, Article 29 of the Rome Statute of the International Criminal Court (ICC) states that statutory restrictions do not apply to war crimes, crimes against humanity, genocide, or aggression.
Nullum Crimen, Nulla Poena Sine Lege
This principle is also known as the principle of legality and is enshrined in Article 15 of the International Covenant on Civil and Political Rights, which states that no one may be convicted or punished for an act or omission that does not constitute a criminal offence under national or international law at the time it was committed. It further specifies that no harsher penalties than those in place at the time the criminal offence was committed may be applied. The purpose of this notion is to ensure that the law is clear and predictable, allowing people to reasonably foresee the legal consequences of their actions.
The International Criminal Statute has a similar provision on the basis of legality under Article 22. The concepts of non-retroactivity, specificity, and analogy prohibition are all connected to the concept of legality. Non-retroactivity means that a law cannot be applied to events that have occurred prior to its enactment. The notion of specificity needs a sufficiently detailed definition of the prohibited conduct, but the prohibition of analogy implies a strict interpretation of the phrase.
Ne Bis in Idem
According to this Latin maxim, no one should be prosecuted or punished more than once for the same offence. It ensures justice for defendants because they know the judgment will be final, and it protects them against arbitrary or malicious prosecution on both the local and international level. Furthermore, this concept seeks to guarantee that investigations and prosecutions are initiated and carried out effectively. It should be emphasised that the precise application of Ne bis in idem at the international level is determined by its articulation in the appropriate laws of international tribunals.
Immunities are derived from the concept of state sovereignty. Immunity from foreign jurisdiction has traditionally been granted to state representatives. Immunity is intended to allow government officials to carry out their official tasks while representing the country in foreign matters. The two types of immunity that may be identified are personal and functional immunity.
- Personal immunity safeguards persons who are critical to a state’s administration, whether in a personal or official capacity, throughout the duration of their tenure in office.
- State representatives’ official activities are protected by functional immunity, which lasts beyond their term of office.
Immunity, therefore, serves as a procedural obstacle to foreign jurisdictions initiating processes against protected individuals; nonetheless, the official’s State of Nationality has the option to waive immunity.
Mutual legal assistance
Mutual legal assistance is the provision of legal assistance by one state to another in the investigation, prosecution, or punishment of illegal offences. It is the process by which governments seek and provide assistance to other countries in the processing of judicial documents and for the gathering of evidence for use in criminal cases. Mutual legal assistance is frequently governed by bilateral or multilateral legal assistance treaties, which specify the scope, boundaries, and methods for such assistance, but local law will serve in many cases. Domestic law, whether in the form of a criminal procedure code or as a separate piece of legislation, usually reinforces treaties.
It is essential to harmonise legal frameworks at the national and international levels. When the same processes and laws are in place, cooperation becomes easier and faster. Multilateral and regional accords are used to accomplish this. Article 18 of the Organized Crime Convention is based on a variety of previous global and regional initiatives. It urges state parties to give the greatest feasible mutual legal assistance in investigations, prosecutions, and judicial proceedings.
The Organised Crime Convention further requires state parties to provide reciprocal similar assistance to one another if the inquiring state has reasonable grounds to suspect that one or more of these offences are transnational. Transnational crimes include circumstances in which victims, witnesses, revenues, instruments, or proof of such crimes are situated in the requesting state, as well as scenarios in which the crimes are committed by an organised criminal gang.
Legal assistance may be obtained under Article 18 of the convention for
- Obtaining evidence or making statements
- Providing judicial documents for service
- Conducting search warrants and seizures
- Examining objects and locations
- Providing data, facts, expert opinions, papers, and records,
- Identifying or tracking criminal profits, property, or instruments for evidence
- reasons, as well as their seizure for confiscation.
- Making it easier for witnesses to appear
- Any other sort of assistance that is not prohibited by domestic law.
The United Nations Office on Drugs and Crime’s (UNODC) tools to facilitate mutual legal assistance
The UNODC has established tools to foster international cooperation and address the challenges that transnational organized criminal organisations face. The United Nations Office on Drugs and Crime (UNODC) developed the Mutual Legal Assistance Request Writer Tool (MLA Tool) to assist criminal justice practitioners in swiftly drafting MLA requests, therefore increasing state collaboration and accelerating responses to such requests. The computer-based application is easy to use, adaptable to a state’s substantive and procedural law, and requires little prior knowledge or expertise with mutual legal assistance.
The United Nations Model Law on Mutual Assistance in Criminal Matters
To enhance the development of domestic legislation, the UNODC developed Model Legislation on Mutual Legal Assistance in Criminal Matters. The Model Law provides measures to assist countries in providing more effective assistance in international criminal proceedings.
The United Nations Model Treaty on Mutual Assistance in Criminal Matters
The General Assembly adopted the Model Treaty on Mutual Assistance in Criminal Matters in Resolution 45/117, and it was later updated in Resolution 53/112. It is designed to be utilised by countries as a tool in the negotiation of bilateral instruments of this nature, allowing them to deal with transnational criminal proceedings more efficiently.
In order to fully benefit from mutual legal assistance operations, national legislation must be studied and, in certain situations, amended to promote international collaboration and the use of foreign evidence.
Categorisation of international crimes
International criminal justice develops a system of responsibility for the most heinous crimes committed across the world, such as genocide, war crimes, and crimes against humanity. International criminal courts and tribunals adopt legislative measures to establish subject-matter jurisdiction over major international offences. Efforts to combat such crimes have been internationalised as a consequence of necessity, reflecting the need to put a stop to crimes that frequently evade national authorities. Human trafficking, involvement in slave trade, and terrorist offences like piracy and plane hijacking are all covered by international treaties and customary legal principles.
Following World War II, the first modern international criminal tribunal convened at Nuremberg, Germany, to trial Nazi Germany’s military and civilian leaders (A similar tribunal was established in Tokyo to punish accused Japanese war criminals). The Nuremberg trials (1945–46) prosecuted three types of crimes such as crimes against peace, war crimes, and crimes against humanity.
The offences were precisely specified and applied only to crimes done during the international war. More than half a century later, genocide was recognized among the three forms of crime in the Rome Statute of the International Criminal Court (ICC; 1998). The requirements for crimes tried in Nuremberg developed dramatically during the second half of the twentieth century, and they now cover offences committed during peacetime or civil wars. The most terrible crimes in international law are genocide, war crimes, and crimes against humanity.
The 1949 Geneva Convention and the 1977 Additional Protocols to the Geneva Conventions define war crimes as serious violations of war norms and conventions. The norms and customs of war only apply to acts committed during an armed conflict, which can involve the use of armed force between nations or long-term military combat between states and armed organizations or groups.
Significant breaches of the rules and customs applicable in international armed conflict and serious violations of the laws and customs applicable in non-international armed conflict are classified as war crimes under Article 8 of the Rome Statute of the International Criminal Court. Grave violations of international humanitarian law are dealt with by the International Criminal Tribunals for the former Yugoslavia and Rwanda, as well as the Special Court for Sierra Leone and the UNTAET Regulation No. 2000/15 for East Timor, which establishes jurisdiction for serious violations of international humanitarian law.
The following serious violations of international humanitarian law are classified as war crimes:
- willful killing;
- Torture or cruel treatment, such as biological experimentation;
- Inflicting significant pain or serious bodily or emotional injury on purpose;
- Significant property destruction or appropriation that is not justified by military necessity and is carried out unlawfully and without cause;
- Compelling a prisoner of war or other protected individuals to serve in an enemy force
- Depriving a prisoner of war or other protected person of the right to a fair and regular trial on purpose;
- Deportation or transfer without authorization, as well as wrongful detention
- Taking hostages.
Crimes against humanity
The definition of crimes against humanity varies from one statute to another. The history of the evolution of these offenses may explain this ambiguity. Human rights were first recognised in international law with the Martens Clause of the Hague Convention of 1907.
The International Military Tribunal Charter defined crimes against humanity as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in the execution of or in connection with any crime within the Tribunal’s jurisdiction, whether or not in violation of the domestic law of the country where perpetrated.”
The Control Council Law No. 10 (CCL No. 10) of 1945 was the second international law to incorporate a provision for crimes against humanity, the principal importance of which is the elimination of the war connection requirement, which required acts to be related to war to be unlawful.
“Murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial, or religious grounds, whether or not in violation of the country’s domestic laws,” were defined as crimes against humanity in CCL No. 10.
According to Article 5 of the International Criminal Tribunal for the Former Yugoslavia’s Statute, crimes against humanity include “Murder, extermination, slavery, deportation, incarceration, torture, rape, persecutions on political, racial, and religious grounds, and other cruel actions when perpetrated in armed conflict, whether international or internal,”
Raphael Lemkin coined the word “Genocide” in 1944 in his book “Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposal for Redress,” which was published about Nazi atrocities in Europe during World War II. Genocide was originally thought to be a sub-category of crimes against humanity, described as the “intentional killing, destruction, or eradication of groups or people of organizations.”
The Genocide Convention of 1948 defines genocide as one of five types of crimes committed with the intent of eradicating a national, ethnic, racial, or religious group in whole or in part.
- Assaulting and killing members of the gang;
- Inflicting significant bodily or mental injury on group members;
- Inflicting on the group circumstances of existence that are likely to cause its physical destruction in whole or in part;
- Implementing measures to avoid births within the group;
- Forcibly shifting the group’s children to a different group
As a result of the Convention, genocide has taken on new significance as a distinct crime. The concept of genocide under the 1948 Genocide Convention was narrower than both the definition of crimes against humanity and Lemkin’s definition of genocide. Articles II and III of the Genocide Convention were, however, replicated exactly in Article 4 of the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute and Article 2 of the International Criminal Tribunal for Rwanda (ICTR) Statute to establish the concept of genocide.
Genocide is the most serious and aggravated type of crime against humanity, as well as “the crime of crimes,” among other international crimes.
War crimes, crimes against humanity, and genocide, in general, are all activities that are illegal under national law, such as murder and rape. Whether it be an international or domestic armed conflict (war crime), an attack on a civilian population (crime against humanity), or the planned extermination of an ethnic, racial, national, or religious group (genocide), the context in which the act is committed identifies it as an international crime.
Prosecution and defence
Ordinary offences that cross the boundary into international crimes have serious implications. Most importantly, typical legal norms that regulate the exercise of jurisdiction no longer apply. According to international law, a national criminal justice system may punish crimes committed within the state’s territory or by its citizens, but not crimes committed outside the state’s borders by non-nationals. This rule has been relaxed in the case of war crimes, crimes against humanity, and genocide. Under the principle of universal jurisdiction, national courts have the authority to punish certain offences regardless of where or by whom they are committed.
In circumstances of significant violations of the Geneva Conventions and the crime of torture, international treaties make a prosecution, not just a right, but also a duty. Under the principle of Aut Dedere Aut Judicare, which means “either adjudicate or extradite,” national governments must either try offenders or extradite them to a country that is willing to do so. Accords dealing with terrorism, counterfeiting, and nuclear material theft all use the phrase “try or extradite.”
The arguments that an accused may use to justify his actions are governed by certain rules. Despite having immunity under national law, a head of state cannot use it to protect himself against war crimes, crimes against humanity, or genocide. He may, however, seek protection from prosecution in other states for crimes committed while in office, provided they were not committed in private. Heads of state, on the other hand, are not immune from prosecution in international courts or tribunals. Furthermore, both treaty and customary law remove statutory limitations, which in many national legal systems, including war crimes, crimes against humanity, and genocide, constitute a substantial bar to prosecution many years after a crime has occurred.
Individuals may not claim that they were acting on orders from a superior, even though most national legal systems allow this for military and peace officials. Although subordinates cannot be exonerated in such instances, commanders are the focus of international criminal law. Even if there is no evidence that they directed the crime to be committed, persons in positions of authority, whether military or civilian, may be held accountable for war crimes, crimes against humanity, and genocide committed by individuals under their command.
Key features of legal process of the international criminal system
- People under the age of 18 are not prosecuted by the ICC when they commit a crime.
- The prosecutor must undertake a preliminary investigation before initiating an investigation, taking into account concerns such as appropriate evidence, jurisdiction, seriousness, complementarity, and the interests of justice.
- The prosecutor must obtain and reveal both incriminating and exonerating evidence when conducting an inquiry.
- Unless proven guilty, the defendant is presumed innocent. The prosecutor bears the burden of evidence.
- At all stages of the proceedings (pre-trial, trial, and appeals), the defendant has the right to receive material in a language that he or she fully knows and understands. As a result, ICC procedures are conducted in a variety of languages, with teams of interpreters and translators on hand.
- Pre-trial judges issue arrest warrants and ensure that there is sufficient evidence before a case may go to trial.
- The defendant is referred to as a suspect before a case is committed to trial (during the pre-trial phase). When a case is brought for trial, the defendant is referred to as the accused since the accusations have been confirmed.
- After examining evidence from the prosecutor, defence, and victim’s counsel, trial judges give a verdict and if the offender is found guilty, make decisions on punishment and restitution.
- Appeals judges rule on appeals from either the prosecutor or the defence.
- If new evidence is produced after a case is closed without a guilty verdict, the prosecutor may reopen it.
Conventions and covenants relating to International Criminal Law
Individual criminal responsibility is governed by international criminal law conventions, which also impose obligations on states that accept responsibility for prosecuting or extraditing individuals accused of international crimes, as well as cooperating with international criminal tribunals to make such prosecutions easier. The following are examples of international criminal law instruments:
The First Hague Peace Conference of 1899 was called to “revise the statement addressing the rules and customs of war elaborated in 1874 by the Conference of Brussels, but was not accepted because it failed to fulfil its primary objective of reducing armaments.” The Conference of 1899 was successful in establishing a Land Warfare Convention, which was later supplemented by regulations. Both the Convention and the Regulations were amended during the Second International Peace Conference in 1907. There are only small differences between the two versions of the Convention and Regulations. The provisions of the two land warfare accords, as well as the majority of the substantive articles of the Hague Conventions of 1899 and 1907, are seen as embodying customary international law principles. As a result, they bind states that are not officially party to them.
In 1946, the Nüremberg International Military Tribunal expressed its opinion on the 1907 Hague Convention on Land Warfare. “The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption… but by 1939, these rules… were recognised by all civilised nations and were regarded as declaratory of the laws and customs of war.” The two Additional Protocols to the Geneva Conventions of 1949, which were approved in 1977, substantially supplemented and extended the requirements included in the Regulations.
The Geneva Conventions of 1949 and their Additional Protocols
The Geneva Conventions and its Additional Protocols are at the centre of international humanitarian law, which regulates armed conflict and strives to minimize its effects. They are designed to safeguard civilians, health specialists, and relief workers who are not involved in the conflicts, as well as those who are no longer battling, such as injured, ill, or shipwrecked troops and prisoners of war. According to the Conventions and their Protocols, any infractions must be avoided or removed. They have strict regulations for dealing with serious offences. Those who are responsible for serious crimes must be caught, punished, or extradited, regardless of where they are from.
The First Geneva Convention
Following those established in 1864, 1906, and 1929, this is the fourth amended edition of the Geneva Convention on the Rights of the Wounded and Sick. There are a total of 64 articles. These protect injured and sick people, as well as medical and religious personnel, medical units, and medical transports. The Convention also recognises the distinguishing emblem. It has two annexes: a hospital zone draft agreement and a model identity card for medical and religious personnel.
The Second Geneva Convention
For the first time in a Geneva Convention, this Convention governed the protection of injured, ill, and shipwrecked personnel of armed forces at sea. The 1889 and 1907 Hague Conventions, which expanded the ideals of the Geneva Conventions on the Wounded and Sick to maritime combat, formalised the procedures for safeguarding the wounded, ill, and shipwrecked during a naval battle.
This Convention has 63 articles. In addition to the protection of wounded, sick, and shipwrecked members of the armed forces at sea, these articles provide specific protection for hospital ships, coastal rescue craft, medical aircraft, and other medical transports at sea, as well as religious, medical, and hospital personnel performing their duties in a naval context. The Convention also recognises the distinguishing emblem. It has one annexe, a model identity card for medical and religious personnel deployed to naval soldiers.
The Third Geneva Convention
The 1929 Convention on Prisoners of War was replaced by the current Convention.This convention defined ‘prisoner of war’ and provided adequate and humane treatment to such detainees, as stipulated by the first Convention. It specifically required Prisoners of war to provide their captives with just their names, ranks, and serial numbers. Torture may not be used to elicit information from Prisoners by countries that have signed the Convention.
The Fourth Geneva Convention
Before 1949, the Geneva Conventions only applied to combatants, not civilians.This Convention protects civilians against severe treatment and attack, much as the ill and injured military were protected in the First Convention. In addition, new regulations governing the treatment of civilians have been enacted. Assaults against civilian hospitals, medical transportation, and other medical facilities are strictly forbidden. Internees’ and saboteurs’ rights are also established. Eventually, it examines how occupiers should relate with those who are occupied.
The Additional Protocols to the Geneva Conventions
In the two decades since the Geneva Conventions were ratified, the number of non-international armed conflicts and national liberation wars increased across the world. Two new Protocols to the four 1949 Geneva Conventions were approved in 1977 as a result of this. They increase the protection of victims in both international (Protocol I) and non-international (Protocol II) armed conflicts, and they impose restrictions on how wars are waged. Protocol II was the first international treaty dealing with non-international armed conflicts. In 2005, a Third Additional Protocol was adopted, creating the Red Crystal as an extra emblem with the same international status as the Red Cross and Red Crescent emblems.
Convention on the Prevention and Punishment of the Crime of Genocide.
The Genocide Convention was one of the earliest United Nations conventions to address humanitarian issues. It was passed in 1948 in response to the atrocities of World War II, and it came after the United Nations General Assembly Resolution 180 (II) of December 21, 1947, which stated that “genocide is an international crime, implying the national and international responsibility of individual people and nations.” Since then, the Convention has been widely recognised by the international community, and the great majority of nations have ratified it. Article 2 of the Convention specifies a precise definition of genocide, including the required intent and prohibited behaviour. It also asserts that genocide may occur in both peace and conflict.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Convention Against Torture is the most significant international human rights treaty dedicated primarily to the prevention of torture. Signatory nations are required under the Convention to prohibit and prevent torture and cruel, inhuman, or degrading treatment or punishment in all circumstances. The Convention mandates governments that have joined it to investigate all allegations of torture, prosecute perpetrators, and compensate victims. The United Nations General Assembly ratified the Convention in 1984, and it went into effect in 1987. As of April 2006, 141 countries had ratified the Convention.
International Convention on the Suppression and Punishment of the Crime of Apartheid
The United Nations’ resistance to the South African government’s discriminatory racial practices, known as apartheid, which lasted from 1948 to 1990, spawned the Convention on the Suppression and Punishment of the Crime of Apartheid, also known as the Apartheid Convention. The Apartheid Convention was a watershed moment (because it permits States to prosecute non-nationals for crimes committed on a non-State party’s territory while the accused is physically within the jurisdiction of a State party) in the anti-apartheid movement because it not only declared apartheid to be unlawful since it violated the United Nations Charter, but it also declared apartheid to be criminal. In 1973, the United Nations General Assembly passed the Apartheid Convention, which went into effect in 1976.
According to Article 1 of the Apartheid Convention, apartheid is a crime against humanity, and “inhuman conduct arising from apartheid policies and practices and related policies and practices of racial segregation and discrimination are international crimes.”
International Criminal Court
The International Criminal Court (ICC) is a court that examines grave international crimes such as genocide, war crimes, and crimes against humanity as the last resort. The ad hoc international tribunals formed in the 1990s to examine atrocity crimes committed in the former Yugoslavia and Rwanda served as inspiration for the court. The court’s basic instrument, the Rome Statute, was passed in July 1998, and the court began functioning in 2003. However, the court has faced several challenges since its inception. It has failed to get support from major countries such as the United States, China, and Russia, which say that it undermines national sovereignty. As human rights crises defined by international crimes become more common, the court’s mandate has proven to be both more necessary and more difficult to fulfill than its founders anticipated.
The International Criminal Court is based in The Hague, Netherlands, and has field offices in various nations.
The court is composed of eighteen judges, each nominated by the member countries and representing a different member nation. It requires that its members seek a gender-balanced court as well as representation from each of the UN’s five regions in the judiciary. Judges and prosecutors are chosen for non-renewable nine-year terms. The court’s president and two vice presidents are elected from among the judges and are in charge of the court’s administration, as well as the register.
The court has jurisdiction over four categories of offences, they are
2. War crimes
3. Crimes against humanity
4. Crimes of aggression
International criminal law is an important subject that deals with the protection of international human rights since it aims to punish activities that violate fundamental human rights such as life, liberty, and security in general. Although the specific definition of an international crime is still debated, it is usually understood as an act that jeopardises the international community’s essential interests and entails individual criminal liability. Primary international crimes include war crimes, crimes against humanity, genocide, and aggression. International criminal law, like ordinary criminal law, prohibits certain behaviours and specifies the penalties that apply when those behaviours are carried out. However, challenges such as international terrorism, religion, the environment, and new patterns of war and peace continue to degrade international relations, necessitating effective implementation.
Frequently Asked Questions (FAQs)
What is International Criminal Law?
International Criminal Law is the body of laws, agreements, and norms that govern international crimes and their suppression, as well as regulations that tackle conflict and cooperation between national criminal-law systems.
What are the sources of International Criminal Law?
The primary sources of international criminal law are treaties, customary international law, general principles of law, judicial decisions, and writings of eminent jurists.
what does Nullum Crimen, Nulla Poena Sine Lege mean?
This principle is also known as the principle of legality which means that no one may be convicted or punished for an act or omission that did not constitute a criminal offence under national or international law at the time it was committed.
What is Mutual Legal Assistance?
Mutual legal assistance is the provision of legal assistance by one state to another in the investigation, prosecution, or punishment of illegal offences. It is the process by which governments seek and provide assistance to other countries in the processing of judicial documents and for the gathering of evidence for use in criminal cases.
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