There are other acts which are prohibited through int’l. treaties (so-called “suppression conventions”) but their prevention and suppression is left to the national States
There are other acts which are prohibited through int’l. treaties (so-called “suppression conventions”) but their prevention and suppression is left to the national States.
There are other acts which are prohibited through int’l. treaties (so-called “suppression conventions”) but their prevention and suppression is left to the national States.
It is a matter of domestic penal law to enforce such rules.
Certain crimes which do not breach fundamental values belonging to the international community as a whole, but that are of a transnational nature and implicate the interests of more than one state are within this ambit.
These crimes can only be prosecuted (at the national level) if domestic law has criminalised it (indirect enforcement).
Examples: illicit traffic in narcotic drugs or psychotropic substances, the unlawful arms trade, smuggling of nuclear materials, money laundering, migrant smuggling, trafficking in human beings...
In our distinction, piracy, slavery and terrorism would also fall outside the category of int’l. crime, and fit into the rubric of “transnational/treaty” crimes.
An example to the “transnational” nature of a crime - UN Convention against Transnational Organized Crime, Art. 3 (2): “For the purpose of paragraph 1 of this article, an offence is transnational in nature if:
(b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;
(c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or
(d) It is committed in one State but has substantial effects in another State.”
These crimes have not yet gained the status of int’l. crime according to customary law;
These crimes have not yet gained the status of int’l. crime according to customary law;
Treaty crimes are not as grave as the other core int’l. crimes;
Some of the int’l. treaties laying down these crimes have not been ratified by a large number of states;
There are other international instruments which provide a tool for fighting against these crimes;
It is believed that these crimes would be better repressed at national level;
With regard to terrorism in particular, it was impossible to reach consensus on a commonly acceptable formula which can meet the requirement of clarity connected with the principle of legality;
With regard to int’l. traffic in drugs, it is thought that classical bilateral and regional cooperation options may suffice.
Regarding treaty crimes, the obligation incumbent on the state is to proscribe and penalise these acts under national law, and/or try the perpetrators or make sure that they are tried.
Regarding treaty crimes, the obligation incumbent on the state is to proscribe and penalise these acts under national law, and/or try the perpetrators or make sure that they are tried.
However, prosecution will take place at national level.
So these “suppression conventions” do not impose any duty or responsibility directly on individuals, only a state exercising jurisdiction under national legal systems prohibiting the conduct can prosecute the act.
If the state fails to discharge its duty to either prosecute or extradite the perpetrator, this breach of the state’s conventional obligation will give rise to its int’l. responsibility.
This is an incorrect term. The notion of “state criminality” runs against the basic precepts of criminal law (imputability/ personal liability / guilt).
This is an incorrect term. The notion of “state criminality” runs against the basic precepts of criminal law (imputability/ personal liability / guilt).
The notion of “criminality” refers to liability of a criminal nature, and liability is based on the attribution of a conduct of a criminal nature to a particular individual.
In ICL too, criminal responsibility is shaped by the concept of “guilt” which implies that only natural persons should be held responsible.
Criminal liability in both national and international law is generally attributed exclusively to natural persons.
As such, there is no reference as such to the concept of “int’l. crimes of States” in positive int’l law.
The responsibility of a State under int’l. law due to int’l. crimes committed by its own agents is a matter for a separate branch of int’l. law: State responsibility. This responsibility is not dependant upon the legal responsibility of an individual.
State responsibility has been studied under int’l. law.
State responsibility has been studied under int’l. law.
The relationship with ICL is that the same act may give rise to both individual criminal responsibility and State responsibility.
This will be the case when the act of the perpetrator can be attributed to a State (such as war crimes committed by State agents).
There is a regime of aggravated State responsibility under the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts (Art. 40: serious breaches of obligations under peremptory norms of general international law).
But it is not a responsibility regime of penal character.
International crimes are laid down in Arts. 76-80:
International crimes are laid down in Arts. 76-80:
Genocide (Art. 76)
Crimes against Humanity (Art. 77)
Membership to, or establishing an organisation formed for the purposes of committing genocide/crimes against humanity (Art. 78);
Migrant smuggling (Art. 79);
Trafficking in Human Beings (Art. 80)
No aggression and no war crimes.
Torture is not considered an int’l. crime (Arts. 94-5).
No provision regarding apartheid (ırk ayrımcılığı), persecution (zulmetme) and slavery (esaret).
As can be seen, international crimes in the real sense and so-called “other int’l. crimes” or “treaty crimes” have been dealt with under the same section.
As can be seen, international crimes in the real sense and so-called “other int’l. crimes” or “treaty crimes” have been dealt with under the same section.
This approach is open to criticism because, as mentioned above, trafficking in human beings and migrant smuggling are crimes that due to their transnational character and the implication of int’l. criminal organisations harm more than one state and require international cooperation for their prevention and suppression, but yet, they are not int’l. crimes.
On the other hand, war crimes and the crime of aggression have not been laid down in the Penal Code. Since there was no agreement in the int’l arena on the definition of aggression, its exclusion from the Penal Code may be appropriate. Now that a definition has been adopted (in 2010), current developments may require the Turkish parliament to adopt a definition which mirrors the one adopted for the purposes of the ICC.
On the other hand, war crimes and the crime of aggression have not been laid down in the Penal Code. Since there was no agreement in the int’l arena on the definition of aggression, its exclusion from the Penal Code may be appropriate. Now that a definition has been adopted (in 2010), current developments may require the Turkish parliament to adopt a definition which mirrors the one adopted for the purposes of the ICC.
The lack of war crimes is important. It may be said that Turkey is a party to the 1949 Geneva Conventions regulating the law of armed conflict. However, the provisions of these conventions are not of a criminal nature, they lack the clarity required by the principle of legality and cannot therefore form the basis of individual criminal responsibility. That is because these provisions were intended to address the states.
As a result of the non-incorporation of war crimes into the penal code, if a war crime is committed within the jurisdiction of Turkey, these acts may not be qualified as war crimes and may not be prosecuted in that quality. Instead, the few provisions of the Military Penal Code or the provisions of the Penal Code regarding ordinary crimes shall apply.
That might be a problem, because it is not the same thing to try an act on charges of murder instead of qualifying it as “murder as a war crime”.
If Turkey becomes a party to the Rome Statute in the future, its provisions regulating war crimes can (this is debatable, though) apply at national level (art. 90/in fine of the Constitution).
1. Int’l criminal law is a branch of public international law.
1. Int’l criminal law is a branch of public international law.
It might be said that ICL actually constitutes the fusion of two different legal disciplines: international law and domestic criminal law.
However, it is more than just being a mixture of part of public int’l. law plus part of domestic criminal law and human rights.
So, it wouldn’t be correct to say that ICL only consists of those rules within public international law which are of a criminal law nature. ICL is more than that.
It is a hybrid discipline, which is part of public int’l. law but “impregnated” with notions and principles deriving from national criminal law and human rights law.
In addition, ICL has its own foundational principles, and particular rules.
2. ICL is a relatively new branch of international law. The list of crimes which entail individual criminal responsibility at the international level has gradually expanded. Until WWII only war crimes were considered within that ambit. Following the creation of the Nuremberg and Tokyo tribunals, crimes against humanity and against peace were added. Then, in 1948 the Genocide Convention was adopted. More recently, torture has also been recognised as an international crime and - according to a view - some forms of international terrorism have also been elevated to that status.
2. ICL is a relatively new branch of international law. The list of crimes which entail individual criminal responsibility at the international level has gradually expanded. Until WWII only war crimes were considered within that ambit. Following the creation of the Nuremberg and Tokyo tribunals, crimes against humanity and against peace were added. Then, in 1948 the Genocide Convention was adopted. More recently, torture has also been recognised as an international crime and - according to a view - some forms of international terrorism have also been elevated to that status.
The rules regarding international criminal proceedings are also limited in number and scope.
Each international tribunal has its own rules, therefore there are no general applicable rules, although some important principles are being delineated through the case-law of international tribunals.
3. ICL is still developing. The constituent elements of the various international crimes are still not very clear. Similarly, there is no scale of penalties laid down in international rules.
3. ICL is still developing. The constituent elements of the various international crimes are still not very clear. Similarly, there is no scale of penalties laid down in international rules.
As for procedural rules, it is only in the statutes of the ICTY and ICTR, and the Rules of Procedure and Evidence adopted by the respective judges that detailed provisions were first laid down.
The ICC Statute and RPE contain the most detailed provisions laid down so far.
To grant judges the competence to determine the applicable procedural rules makes it possible to adapt proceedings to developing challenges.
On the other hand, in principle, the appropriateness of granting such sweeping powers to subjects participating to criminal proceedings is open to criticism.
a) For a long time, international rules only aimed at prohibiting certain acts in general terms; but the consequences as to criminal law of the breaches were not determined.
a) For a long time, international rules only aimed at prohibiting certain acts in general terms; but the consequences as to criminal law of the breaches were not determined.
b) Although int’l. law later criminalised certain acts, the exercise of jurisdiction over these crimes was left to national courts, therefore the municipal courts of each state would apply their own national substantive and procedural rules.
c) In the statutes of the various international tribunals established so far, certain international crimes have been enumerated. However, the purpose of such provisions was not to lay down in detail the elements of those crimes, but just to specify the subject matter (ratione materiae) jurisdiction of the court, i.e. over which crimes each court could exercise jurisdiction. So, there were no precise definitions of these crimes (exception made for the ICC).
d) Concerns regarding protection of national sovereignty slowed down the development of ICL.
It is for these reasons that a coherent ICL system could not yet be created. As a consequence, international criminal tribunals rely heavily on customary rules, unwritten general principles, and the criminal laws of the various nations also constitute a vital component of ICL.
4. Another unique characteristic of ICL is the fact that this discipline derives its origin and draws upon both human rights law and national criminal law.
4. Another unique characteristic of ICL is the fact that this discipline derives its origin and draws upon both human rights law and national criminal law.
Human rights law is especially important in int’l. criminal procedural law, as it lays down the fundamental rights of suspects and accused persons, of victims and witnesses; as well as setting out the basic safeguards for a fair trial.
Furthermore, it is argued that the last stage in the development of a rights regime is the criminalisation stage, because the values contained in that right are further protected through penal proscriptions.
National criminal law and case-law had also an important effect in the shaping of ICL. Most customary rules of ICL have primarily evolved from municipal case law relating to int’l. crimes . It might be said that the creation of the permanent ICC will gradually allow the emergence of a uniform body of int’l. criminal rules.
5. There is a special, two-fold relationship with public international law.
5. There is a special, two-fold relationship with public international law.
a) ICL and PIL are mutually subsidiary or supportive. Most crimes for which individual criminal responsibility is entailed in ICL, are also regarded in PIL as acts which cause the int’l. responsibility of states. So, when an int’l. crime is committed by an individual not acting in a private capacity (e.g., an army commander) a dual responsibility may follow: criminal liability of the individual and state responsibility.
On the other hand, the philosophy underlying ICL and PIL are different:
- Int’l. law establishes rights and duties between states, while ICL imposes obligations on individuals, making them liable to criminal punishment.
- ICL aims at punishing the individual perpetrator. Due to the repressive nature of ICL, its rules need to be clear, detailed and specific so as to protect the suspect or accused from arbitrary prosecution.
- The aim of PIL is to reconcile, as far as possible, the conflicting interests and concerns of sovereign states. In order to accommodate the political concerns and prerogatives of states, and still be able to reach an agreement, many rules have to be loose and ambiguous. For that reason, the requirements underlying ICL may sometimes collide with the traditional characteristics of PIL.
A clear demonstration of this conflict may be seen in the areas of war of aggression and terrorism.
A clear demonstration of this conflict may be seen in the areas of war of aggression and terrorism.
The international community has still failed to find a common criminal definition for these acts (a definition of aggression has now been adopted for the purposes of the ICC but it has to enter into force yet).
This is because any definition would need to be detailed and specific for the purposes of ICL . But such a well worked-out formula would be a cause for concern for many states. That is why a consensus could not be reached so far.
Sometimes “treaty crimes” also refrain from laying down the details of the crime and leave this job to national jurisdiction. This is done to make sure that a consensus is reached during the negotiation and drafting of the treaty and more States decide to sign it. In this case, certain specific elements that were intended to be part of the treaty may be sacrificed, because “a well signed convention is more important than a ‘strong’ convention”.
Anyway, the fact that some int’l. criminal customary rules are indeterminate due to the reasons we mentioned above increases the role and importance of national and int’l. courts in giving legal precision to these rules.
6. A fifth feature of ICL, closely related to the one we just explained, is that it is changing very quickly.
As the type of atrocities committed increases, the necessity to punish these acts causes an expansion in the scope of ICL.
Furthermore, the legal system of ICL is getting increasingly more sophisticated.
In the meantime, the principle of strict legality is gaining more importance, as a result of which the many customary or evolving rules need to be spelled out in detail.
Doctrine of substantive justice: the legal order must primarily aim at prohibiting and punishing any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been criminalised at the moment it is taken. The basic concern is to defend society againsy any deviant behaviour likely to jeopardise the social and legal system.
Doctrine of substantive justice: the legal order must primarily aim at prohibiting and punishing any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been criminalised at the moment it is taken. The basic concern is to defend society againsy any deviant behaviour likely to jeopardise the social and legal system.
Doctrine of strict legality: A person may only be held criminally liable if at the moment he committed the act it was regarded as a criminal offence under the applicable law.
German Federal Constitutional Court’s judgment of 24.10.1996 was based on the former understanding (“materielle Gerechtigkeit”): The prohibition on retroactive application derives its justification from the special trust reposed in criminal statutes enacted by a democratic legislature respecting fundamental rights.
ECtHR, 22.03.2001, Streletz, Kessler and Krenz v Germany: The Court found that the German practice did not violate Art. 7 of the ECHR regarding the principle of legality (read handout).
7. Enforcement of ICL depends on the cooperation of states.
7. Enforcement of ICL depends on the cooperation of states.
- Unlike national legal systems, the international community does not predicate its rules upon a hierarchical order, but on the basis of the principle of juridical equality amongst states. Thus, it is a horizontal system of law making.
- Since the international order does not possess a legislative body or a compulsory judicial jurisdiction, the creation of int’l. criminal law rules and international criminal adjudication organs depend on the mutual effort of the community of states.
- Similarly, as there is no law enforcement agency, enforcement of the procedural measures taken and sanctions imposed by international courts will also depend on the assistance and full cooperation of states.
8. Int’l. judicial bodies do not have “original” jurisdiction (asli yargı yetkisi), but “subsidiary” jurisdiction (tali yargı yetkisi).
8. Int’l. judicial bodies do not have “original” jurisdiction (asli yargı yetkisi), but “subsidiary” jurisdiction (tali yargı yetkisi).
This means that the primary power to prosecute lies with the directly affected states (Werle at 34).
Therefore, the jurisdiction of int’l. courts only comes into play in cases in which the directly affected states fail to undertake criminal prosecution.
For example, the Rome Statute is based on the principle of “complementarity”.
This principle is fundamental to the whole of ICL enforcement and shows that national courts are, and are intended to be, an integral and essential part of the enforcement of ICL (Cryer et al. at 5).
Indeed, in practice the greater part of the enforcement of ICL is undertaken by domestic authorities.
