Definition and Objectives

Individual criminal responsibility for international crimes

International Criminal Law (ICL) is a branch of public international law that governs the prosecution of individuals for the most serious crimes of concern to the international community as a whole.

These crimes include:

• Genocide
• Crimes against humanity
• War crimes
• Crime of aggression

Objectives of ICL:

• To hold individuals accountable for international crimes regardless of rank or status.
• To deter future crimes by establishing legal consequences.
• To ensure justice and provide redress to victims of mass atrocities.
• To contribute to the re-establishment of peace and the rule of law in post-conflict societies.

Sources of ICL

Treaties (e.g., Rome Statute)

Customary International Law

Sources of International Criminal Law determine the legitimacy and legal basis of international criminal norms.

1. Treaties

The most prominent treaty is the Rome Statute of the International Criminal Court (1998), which established the ICC and codifies crimes under its jurisdiction.

Other treaties include:

• Genocide Convention (1948)
• Geneva Conventions (1949) and their Protocols
• Convention Against Torture (1984)

2. Customary International Law

Rules that emerge from consistent state practice and a belief in their legality (opinio juris).

Examples:

• Prohibition of torture
• Criminal liability for war crimes even if not ratified under treaty

Customary law is especially crucial where no treaty exists or where treaties do not have universal ratification.

Principles of ICL

Nullum Crimen Sine Lege (No crime without law)

Individual criminal responsibility

Command responsibility

Mens Rea and Actus Reus

International Criminal Law operates on a set of core principles that ensure fairness and legal certainty.

1. Nullum Crimen Sine Lege

This principle means "no crime without law". An individual cannot be prosecuted for an act that was not a crime under international law at the time it was committed.

Legal Basis: Article 22 of the Rome Statute.

2. Individual Criminal Responsibility

ICL imposes liability on individuals—not states—for international crimes. Leaders, commanders, and even low-ranking officers can be held accountable.

This principle was affirmed at the Nuremberg and Tokyo Tribunals.

3. Command Responsibility

This doctrine holds military and civilian superiors criminally liable for crimes committed by subordinates if:

• They knew or should have known about the crimes, and
• Failed to prevent or punish the perpetrators.

Example: Commanders prosecuted in ICTY (International Criminal Tribunal for the former Yugoslavia).

4. Mens Rea and Actus Reus

These elements must be established to convict an individual of an international crime:

• Actus Reus: The physical act or conduct of the crime (e.g., killing civilians).
• Mens Rea: The mental state or intent behind the act (e.g., intent to destroy a national group).

Example:

Answer:

Genocide

The term 'Genocide' was coined by Raphael Lemkin, a Polish-Jewish lawyer, in 1944 to describe the systematic destruction of a people. It is often referred to as the "crime of crimes" due to its heinous nature, which involves an attempt to annihilate a protected group. Genocide is a crime under international law, irrespective of whether it is committed in a time of peace or war.

Definition and Elements

The legal definition of genocide is enshrined in Article II of the 1948 Genocide Convention and replicated in Article 6 of the Rome Statute of the International Criminal Court (ICC). To be convicted of genocide, it must be proven that the perpetrator acted with a specific intent to destroy a protected group, and that they committed one of five prohibited acts.

The elements of the crime can be broken down into the mental element (mens rea) and the physical element (actus reus).

It is important to note that the protected groups are limited to national, ethnical, racial, or religious groups. The destruction of political or economic groups does not constitute genocide under the current legal definition.

Convention on the Prevention and Punishment of the Crime of Genocide

Adopted by the United Nations General Assembly on 9 December 1948, the Genocide Convention was the first human rights treaty. It solidified genocide as a crime under international law.

Key Provisions of the Convention:

• Article I: Confirms that genocide, whether committed in time of peace or war, is a crime under international law which contracting parties undertake to prevent and punish.

• Article II: Provides the legal definition of genocide, as detailed above.

• Article III: Outlines punishable acts, which include not only genocide itself but also conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

• Article IV: States that persons committing genocide shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals. This provision pierces the veil of sovereign immunity.

• Article V: Obligates contracting parties to enact necessary legislation to give effect to the provisions of the Convention.

The jurisprudence of international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of the Srebrenica massacre and the International Criminal Tribunal for Rwanda (ICTR) concerning the 1994 Rwandan genocide, has been crucial in interpreting and applying the convention's provisions. India is a signatory and has ratified the Genocide Convention.

Crimes Against Humanity

Crimes Against Humanity are certain acts that are purposefully committed as part of a widespread or systematic attack directed against any civilian population. Unlike war crimes, they can be committed during times of peace as well as war. The concept was first formally prosecuted at the Nuremberg Trials following World War II to hold Nazi leaders accountable for their atrocities that did not fall under the traditional definition of war crimes.

Definition and Elements

The most widely accepted and comprehensive definition of crimes against humanity is found in Article 7 of the Rome Statute of the International Criminal Court. The definition consists of two main parts: the contextual elements (the "chapeau") and the list of underlying criminal acts.

1. Contextual Elements (Chapeau)

For an act to be considered a crime against humanity, it cannot be an isolated or random event. It must be committed within a specific context defined by the following criteria:

• The act must be part of a widespread or systematic attack.

  • Widespread: Refers to the large-scale nature of the attack and the number of victims. It implies a geographical or numerical scope.
  • Systematic: Refers to the organized nature of the acts and the improbability of their random occurrence. It suggests a pattern or methodical plan.

• The attack must be directed against any civilian population. The primary target must be civilians, though the presence of some combatants among the population does not necessarily alter its civilian character.

• The perpetrator must have knowledge of the attack. They must know that their actions are part of this broader context of a widespread or systematic attack against civilians.

2. Underlying Acts (Actus Reus)

The Rome Statute lists 11 acts that can constitute a crime against humanity when committed as part of the context described above. These include:

1. Murder
2. Extermination (including the intentional infliction of conditions of life, such as the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population)
3. Enslavement
4. Deportation or forcible transfer of population
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
6. Torture
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law
9. Enforced disappearance of persons
10. The crime of apartheid
11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

India is not a party to the Rome Statute, and as such, has not incorporated this definition into its domestic law.

War Crimes

War Crimes are serious violations of the laws and customs of war, also known as International Humanitarian Law (IHL). These laws govern the conduct of armed forces during an armed conflict. The primary purpose of IHL is to limit the effects of armed conflict for humanitarian reasons, including protecting people who are not or are no longer participating in the hostilities (like civilians, medical personnel, prisoners of war) and restricting the means and methods of warfare.

A key feature of war crimes is that they must have a nexus to an armed conflict, which can be either international (between two or more states) or non-international (between a state and an organized armed group, or between such groups).

Grave breaches of Geneva Conventions

The cornerstone of modern IHL are the four Geneva Conventions of 1949. Each of these conventions contains a list of particularly serious violations, termed "grave breaches." These are considered so egregious that they impose a special obligation on all states that have ratified the conventions.

Key Features of Grave Breaches:

• Universal Jurisdiction: Any state party to the conventions has the right and duty to search for and prosecute individuals alleged to have committed grave breaches, regardless of the nationality of the perpetrator or victim, or the place where the crime was committed.

• Applicability: Grave breaches can only be committed during an international armed conflict and against persons or property specifically protected by the Geneva Conventions (e.g., the wounded and sick, prisoners of war, and civilians).

Examples of Grave Breaches:

The following acts, when committed against protected persons, constitute grave breaches:

• Wilful killing
• Torture or inhuman treatment, including biological experiments
• Wilfully causing great suffering or serious injury to body or health
• Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
• Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power
• Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
• Unlawful deportation or transfer or unlawful confinement
• Taking of hostages

Other serious violations of laws and customs applicable in international armed conflict

The law of war crimes is broader than just the grave breaches of the Geneva Conventions. Article 8 of the Rome Statute provides an extensive list of other serious violations of the laws and customs of war.

These prohibitions are derived from sources like the Hague Conventions of 1899 and 1907 and customary international law. They apply to the methods and means of warfare. Examples include:

• Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
• Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.
- Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, provided they are not military objectives.
• Intentionally launching an attack in the knowledge that it will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
• Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
• Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion.
• Making improper use of a flag of truce, or of the flag or of the military insignia and uniform of the enemy or of the United Nations.
• Declaring that no quarter will be given.
• Employing poison or poisoned weapons.
• Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

The Rome Statute also lists specific war crimes applicable in non-international armed conflicts, recognizing that IHL applies in civil wars as well, although the scope is more limited than in international conflicts.

Crime of Aggression

The Crime of Aggression, often described by the Nuremberg Tribunal as the "supreme international crime," is the act of a state using armed force against the sovereignty, territorial integrity, or political independence of another state, in violation of the Charter of the United Nations. It is considered a 'leadership crime' as it can only be committed by those in a position of power to shape a state's policy of aggression.

While the concept is old, defining it and establishing jurisdiction over it proved to be one of the most contentious issues in the history of international criminal law.

Definition and Elements under the Rome Statute

After decades of debate, the definition and the conditions for the exercise of jurisdiction over the crime of aggression were adopted at the Kampala Review Conference in 2010, resulting in amendments to the Rome Statute. The crime is now codified in Article 8 bis of the Statute.

Elements of the Crime:

1. Leadership Context (Perpetrator): The crime can only be committed by a person in a position effectively to exercise control over or to direct the political or military action of a State. This restricts liability to high-level political or military leaders, not ordinary soldiers.

2. Act of Aggression (Actus Reus): The leader must plan, prepare, initiate, or execute an "act of aggression". An act of aggression is defined as the use of armed force by a State against another State in violation of the UN Charter. Examples listed in the statute include:

   • Invasion or attack by the armed forces of a State of the territory of another State.
   • Military occupation, even temporary, resulting from such an invasion or attack.
   • Any annexation by the use of force of the territory of another State.
   • Bombardment by the armed forces of a State against the territory of another State.
   • Blockade of the ports or coasts of a State.
   • An attack by the armed forces of a State on the land, sea or air forces of another State.

3. Manifest Violation (Gravity Threshold): The act of aggression must, by its character, gravity, and scale, constitute a manifest violation of the Charter of the United Nations. This threshold ensures that only the most serious forms of the illegal use of force are criminalized, not minor border skirmishes.

Jurisdictional Hurdles

The ICC's jurisdiction over the crime of aggression is uniquely complex and was activated in July 2018. The Court can exercise jurisdiction only in specific circumstances:

• UN Security Council Referral: If the Security Council refers a situation to the ICC, the Court can investigate and prosecute the crime of aggression regardless of whether the states involved are parties to the Rome Statute.
• State Party Referral or Proprio Motu Investigation: The ICC Prosecutor can initiate an investigation on their own or upon referral from a State Party. However, the Court cannot proceed if the aggression was committed by a non-State Party or by a State Party that has specifically opted out of the Court's jurisdiction for this crime.

These complex jurisdictional rules reflect the political sensitivity of the crime, which directly involves the actions of states themselves. As India is not a signatory to the Rome Statute, its nationals cannot be prosecuted for this crime by the ICC, unless through a UN Security Council referral.

Permanent International Criminal Court (ICC)

The Permanent International Criminal Court (ICC), located in The Hague, Netherlands, is a groundbreaking institution in the field of international law. Established in 2002, it is the first and only permanent international court with the mandate to investigate and prosecute individuals for the most serious crimes of concern to the international community. The ICC represents a significant step towards ending impunity for perpetrators of these crimes and is founded on the principle that justice for atrocities is a crucial component of lasting peace.

Rome Statute

The Rome Statute is the multilateral treaty that established the International Criminal Court. It was adopted at a diplomatic conference in Rome, Italy, on 17 July 1998 and entered into force on 1 July 2002 after reaching the required 60 ratifications.

Key features of the Rome Statute include:

• Establishment of the Court: It lays down the legal framework for the ICC's existence, including its structure, functions, and procedures.

• Core Crimes: The Statute grants the ICC subject-matter jurisdiction over four core international crimes:

  1. The crime of Genocide (Article 6)
  2. Crimes Against Humanity (Article 7)
  3. War Crimes (Article 8)
  4. The crime of Aggression (Article 8 bis, activated in 2018)

• Organs of the Court: It establishes the four primary organs of the Court: the Presidency (responsible for administration), the Judicial Divisions (comprising Pre-Trial, Trial, and Appeals Chambers), the Office of the Prosecutor (OTP) (acts independently to investigate and prosecute), and the Registry (provides administrative and operational support).

• India's Position: India is not a signatory to the Rome Statute and is therefore not a member of the ICC. India's objections have been based on several grounds, including concerns about the potential for the Court to be used for political purposes, the broad and undefined powers given to the Prosecutor, the definition of the crime of aggression and the role given to the UN Security Council, and a perceived infringement on national sovereignty.

Jurisdiction and Complementarity

The ICC's jurisdiction is not universal or unlimited. It is carefully circumscribed by the Rome Statute, primarily through the principle of complementarity.

Jurisdictional Preconditions

The ICC can exercise its jurisdiction only in specific circumstances:

• Temporal Jurisdiction: The Court can only prosecute crimes committed after 1 July 2002, the date the Rome Statute came into force.

• Territorial or Personal Jurisdiction: Jurisdiction can be triggered if:

  • The crimes were committed on the territory of a State Party (a country that has ratified the Rome Statute).
  • The person accused of the crime is a national of a State Party.

• UN Security Council Referral: The UN Security Council can refer a situation to the ICC, which grants the Court jurisdiction even if the state concerned is not a party to the Statute (e.g., the referral of the situation in Darfur, Sudan).

The Principle of Complementarity

This is the cornerstone of the ICC's jurisdictional framework. The ICC is intended to complement, not to replace, national criminal justice systems. It is a court of last resort.

The principle of complementarity means that the ICC will only step in and admit a case if the relevant national authorities are genuinely unwilling or unable to carry out the investigation or prosecution themselves.

• Unwillingness: This refers to situations where national proceedings are undertaken for the purpose of shielding the person from criminal responsibility (e.g., sham trials), there has been an unjustified delay in the proceedings, or the proceedings are not conducted independently or impartially.

• Inability: This refers to situations where a state's national judicial system has totally or substantially collapsed, rendering it incapable of undertaking the necessary proceedings.

This principle fundamentally respects state sovereignty by giving states the first opportunity and responsibility to prosecute international crimes.

Ad Hoc Tribunals

Before the establishment of the permanent ICC, the international community responded to specific mass atrocities by creating ad hoc tribunals. These temporary courts were established by the United Nations Security Council, acting under its Chapter VII powers, with a specific mandate limited to a particular conflict, geographical area, and time frame. Once their work was completed, they were disbanded. The two most prominent examples are the tribunals for the former Yugoslavia and Rwanda.

ICTY (Former Yugoslavia)

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN Security Council Resolution 827 in May 1993. Based in The Hague, its creation was a direct response to the horrific atrocities being committed during the conflicts in the Balkans.

• Mandate: To prosecute persons responsible for serious violations of international humanitarian law (war crimes, genocide, and crimes against humanity) committed in the territory of the former Yugoslavia since 1991.

• Jurisdiction: The ICTY had primacy over national courts, meaning it could demand that national courts defer cases to it.

• Achievements and Legacy: The ICTY was a pioneering institution. It was the first international tribunal to prosecute genocide in Europe and was instrumental in developing the jurisprudence on crimes of sexual violence, recognizing rape as a tool of war and an act of torture. It indicted 161 individuals, including heads of state and high-ranking military officials like Slobodan Milošević and Radovan Karadžić. The ICTY officially closed its doors on 31 December 2017, with its remaining functions, such as overseeing sentences and handling appeals, transferred to a successor body, the International Residual Mechanism for Criminal Tribunals (MICT).

ICTR (Rwanda)

The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 in November 1994, in the aftermath of the 1994 Rwandan Genocide, during which an estimated 800,000 people, primarily Tutsis, were systematically murdered.

• Mandate: To prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and by Rwandan citizens in neighbouring states between 1 January 1994 and 31 December 1994.

• Location: The tribunal was based in Arusha, Tanzania, a decision made to bring justice closer to the region where the crimes occurred.

• Achievements and Legacy: The ICTR delivered landmark judgments that profoundly shaped the law on genocide. It was the first international tribunal to deliver a verdict in relation to genocide and the first to interpret the definition of genocide set out in the 1948 Genocide Convention. In the case of Jean-Paul Akayesu, it ruled that rape and sexual assault could constitute acts of genocide. It was also the first tribunal to convict a former head of government, Prime Minister Jean Kambanda, for the crime of genocide. The ICTR formally closed in December 2015, with its residual functions also transferred to the MICT.

National Prosecution of International Crimes

The international justice system, including the ICC and ad hoc tribunals, is built on the premise that states themselves hold the primary responsibility to prosecute individuals for core international crimes. National courts are the first line of defence against impunity. This approach is not only a matter of legal principle (complementarity) but also a practical necessity, as international courts can only handle a small number of cases.

The Principle of Universal Jurisdiction

A key mechanism for national prosecution is the principle of universal jurisdiction. This legal doctrine allows a state's national courts to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality or the victim's nationality.

• Rationale: The principle is reserved for crimes considered so heinous that they are an offence against all of humanity. These crimes, such as piracy, slavery, genocide, war crimes, and torture, are considered to be of universal concern. The goal is to ensure there are no safe havens for perpetrators of the most serious atrocities.

• Application: The application of universal jurisdiction depends on a state's domestic laws. Some countries have enacted legislation allowing their courts to prosecute such crimes based solely on the presence of the accused on their territory. The famous case against former Chilean dictator Augusto Pinochet in Spain and the UK is a prime example of the attempted application of this principle.

Domestic Legal Framework in India

India's approach to prosecuting international crimes is shaped by its "dualist" legal system, which requires an act of Parliament to make international law enforceable in domestic courts.

• Geneva Conventions Act, 1960: This is a key piece of legislation through which India has implemented its obligations under the Geneva Conventions. The Act specifically incorporates the "grave breaches" provisions of the conventions into Indian law, giving Indian courts jurisdiction to try any person, regardless of nationality, for committing a grave breach anywhere in the world.

• Lack of Specific Legislation for Genocide and Crimes Against Humanity: This represents a significant gap in India's legal framework. Despite having ratified the Genocide Convention in 1959, India has not yet passed a standalone law that specifically defines and criminalizes genocide. Similarly, since India is not a party to the Rome Statute, there is no domestic law criminalizing "crimes against humanity" as defined in international law. While acts constituting these crimes (e.g., murder, assault) are punishable under the Indian Penal Code, they are not prosecuted with the specific context and intent that define them as international crimes, which can impact the gravity of the punishment and the official recognition of the nature of the atrocity.

Therefore, while national prosecution remains the bedrock of international criminal justice, its effectiveness is contingent on the political will of states to adopt and enforce the necessary domestic legislation.