A Critical Appraisal of Developments in International Criminal Law After Nuremberg: Part Two
This piece is the second part of a three-part series comprising a Paper by Judge Patrick L. Robinson of the International Court of Justice, in which he addresses developments in international criminal law after Nuremburg. The first installment may be read here. The third and final installment is forthcoming.
- The fourth development that I would like to discuss is a few of the landmark holdings from the first case before the ICTY – Tadić – and how they have impacted on the scope of international criminal law, both at the Tribunal and elsewhere.
(a) I turn first to the definition of conflict, which is, of course, essential to determining whether or not international humanitarian law applies. In the case of the ICTY, the nexus to conflict was relevant in determining the applicability, not only of the grave breaches regime and the laws and customs of war, but also crimes against humanity. The Appeals Chamber stated:
an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State.
This definition has been highly influential in subsequent Judgments, and also adopted by other international law bodies.
(b) The ICTY in Tadić broadened the scope of the test for attribution to be used in determining ‘direction’ or ‘control’ of a non-State actor by a State, and thus, whether a conflict is to be categorised as “international”. It rejected the “effective control” test employed by the ICJ in the Paramilitaries case, to determine whether the acts of the contras were attributable to the USA, and employed, instead, a test of “overall control”.
(c) The ICTY in Tadić also confirmed “that customary international law imposes criminal liability for serious violations of common Article 3” applicable in internal armed conflict.
- The fifth area of progress that I wish to discuss relates to criminal prosecution for sexual offences in armed conflicts. At the outset, it is important to note the sociological roots of sexual violence during conflict. As noted, by the Secretary-General in his 2015 Report on Sexual Violence in Conflict: “…conflict-related sexual violence take[s] place against a backdrop of structural gender-based violence…”.
Little attention was paid to this topic at Nuremberg and famously the Tokyo Tribunal did not try the Japanese for offences against persons who have been called ‘comfort women’. However, the ICTY, ICTR and ICC Statutes specifically list rape as a crime against humanity and the ICC Elements of Crimes gives a detailed definition of what constitutes rape. The definition of rape set out by the ICTR in Akayesu - “a physical invasion of a sexual nature committed on a person under circumstances which are coercive” - has been described as the “Tribunal’s single biggest substantive accomplishment”; in essence, “the recognition that consent is meaningless for sexual violence that has a nexus to genocide, armed conflict and crimes against humanity was a tremendous breakthrough”.
On 21 March 2016, Jean-Pierre Bemba became the first person to be convicted by the ICC for sexual violence crimes, including against men and boys. In June 2016, Mr. Bemba received a longer sentence for rape as a war crime and rape as a crime against humanity than he did for murder or pillaging as a war crime or murder as a crime against humanity. This represents a sea change from the attention paid to sexual offences at Nuremberg.
One other point of note in relation to sexual crimes relates to procedural developments. In 1994, the ICTY adopted Rule 96 of its Rules of Procedure and Evidence, which was amended in 1995. It states that, in cases of sexual assault no corroboration shall be required, nor is prior sexual conduct to be admitted; consent is not allowed as a defence in coercive circumstances, and, even where it is admitted the Trial Chamber must be satisfied in advance of its credibility and relevance. The provision was intended to prevent unnecessary questioning about witness’ prior conduct. Issues of consent and prior conduct, for example, could be particularly traumatic, given the intimation that the victim is partly to blame (especially as victims of sexual violence often feel that it is their fault).
The rule was groundbreaking - the first rule of this kind adopted by an international court or tribunal.
- My sixth point relates to the expansion in the scope of crimes constituting breaches of international humanitarian law, and, consequently, the jurisdiction of international tribunals.
(a) The definition of what constitutes crimes against humanity has expanded since Nuremberg, as has the prevalence of prosecutions for this crime. Article 7 of the ICC Statute evidences the recognition that a nexus to conflict is no longer required. However, Article 7 defines crimes against humanity more narrowly than customary international law in another manner: it requires that the conduct at issue be carried out “pursuant to or in furtherance of a State or organizational policy to commit” a widespread or systematic attack directed against any civilian population.
(b) While the Nuremberg Tribunal did not address genocide, the General Assembly affirmed in 1946 that it was a crime under international law and that “the punishment of the crime of genocide is a matter of international concern”. Today, genocide is included in the jurisdiction of all the international criminal tribunals. The law has undergone very significant development through the work of the ICTY and ICTR. The ICJ has also heard two landmark cases relating to genocide, but addressing questions of state responsibility rather than individual responsibility.
(c) Although the 1998 Rome Statute specifies that the Court has jurisdiction over the crime of aggression, it also provides that that jurisdiction would be exercised only after the crime of aggression had been defined along with the conditions under which the Court’s jurisdiction would be exercised. This was achieved in 2010.
- So far, I have focused largely on the contribution of international courts to the development of international criminal law. However, national courts have also played a part in this development. National courts are very important for a number of reasons:
(a) The international criminal tribunals, including the ICC, will never be able to try all persons who commit serious breaches of international humanitarian law. There is therefore a need for national courts to play a significant, and, in fact, primary role in delivering international criminal justice.
(b) For the 124 States that are parties to the Rome Statute, the ICC only has jurisdiction where national courts are unwilling or unable to try suspects. The complementarity principle ensures that the ICC’s jurisdiction is residual. This represents a shift in perception regarding the role of national courts. It should be contrasted with the position of the ICTY, which had primacy over national courts. National courts must become truly complementary to the international criminal institutions in order to combat impunity.
(c) The contribution of national courts is both extensive and diverse. I would like to discuss one particular case, because it is the first time that the courts of one country (albeit in an internationalised setting) have issued a judgment against the leader of another country for serious crimes. Earlier this year, the Extraordinary African Chambers in Senegal, which were established as part of the Senegalese court system, issued a judgment against Hissène Habré. Habré was convicted of crimes against humanity, war crimes, rape and torture, and sentenced to life imprisonment. His conviction also shows the extent to which it is now accepted that persons who breach international criminal law are individually responsible for their crimes, even Heads of State.
 Prosecutor v. Duško Tadić, ICTY Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, para. 70.
 Prosecutor v. Duško Tadić, ICTY Appeals Chamber Judgment, 15 July 1999, p. 62, para. 145.
 Tadić, supra note 12, para. 134.
 UN Security Council, Report of the Secretary-General, Conflict-related Sexual Violence (23 March 2015) S/2015/203, p. 4, para. 11.
 Two examples of prosecution of sexual offences at the Tokyo Tribunal can be found in the “Rape of Nanking” trial and the trial of Admiral Toyoda, who faced prosecution “[w]illfully and unlawfully disregarding and failing to discharge his duties by ordering, directing, inciting, causing, permitting, ratifying and failing to prevent Japanese Naval personnel of units and organizations under his command, control and supervision to abuse, mistreat, torture, rape, kill and commit other atrocities.” C.P.M. Cleiren & M.E.M. Tijssen, “Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues” in The Prosecution of International Crimes, eds. Roger S. Clark and Madeleine Sann, New Brunswick, NJ: Transaction Publishers, 1996, p. 267.
 Prosecutor v. Jean Paul Akayesu, ICTR Trial Chamber Judgment, 2 September 1998, para. 598.
 Catherine McKinnon, “The ICTR’s Legacy on Sexual Violence”, New England Journal of International and Comparative Law 14:2 (2008), p. 102.
 Prosecutor v. Jean-Pierre Bemba Gombo, ICC Trial Chamber Decision on Sentence pursuant to Article 76 of the Statute, 21 June 2016, p. 45, para. 94.
 For a comparison between the Rome Statute’s definitions of international crimes and customary international law, see Antonio Cassese & Paola Gaeta, Cassese’s International Criminal Law, 3rd ed., Oxford: Oxford University Press, 2013, 79-83, 105-108, 129-130.
 UN Resolution A/RES/96 (1), “The Crime of Genocide” 11 December 1946.
 Rome Statute, supra note 9, Articles 5 & 8 bis.
 Ibid., Article 17.
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