The concept of public order, and consequently, the exercise of criminal jurisdiction is closely connected with national sovereignty.
The concept of public order, and consequently, the exercise of criminal jurisdiction is closely connected with national sovereignty.
This is why criminal law reflects national values.
However, the int’l community has a public order too.
Just the way criminal law is indispensable in protecting national public order, international criminal law is also vital in safeguarding int’l. public order (if there is one!)
The Romano-Germanic based understanding of penal law adopted by most continental European states accepts that the purpose of penal law is to protect certain legal values the safeguard of which are essential from the viewpoint of the society.
The Romano-Germanic based understanding of penal law adopted by most continental European states accepts that the purpose of penal law is to protect certain legal values the safeguard of which are essential from the viewpoint of the society.
This purpose is obtained by restricting the freedom of behaviour of individuals through penalising certain acts.
Similarly, ICL also protects certain fundamental values of the international community.
These values may be listed as the “peace, security and well-being of the world” (Werle at 31).
“[I]nternational criminal law is ... the criminal law of the community of nations, with the function of protecting the highest legal values of this community”. (Triffterer, in O.Triffterer (ed.), Preamble, mn. 9).
The objective of protecting legal values is generally obtained through the prevention of crime.
The objective of protecting legal values is generally obtained through the prevention of crime.
In this framework, punishment either fulfills, according to the understanding of absolute theories, the function of retribution (kefaret), or according to relative theories, the function of (general and special) deterrence (genel ve özel önleme).
Today it is generally accepted that both functions co-exist (mixed theories).
‘Retribution’ focuses on the idea that offenders deserve punishment for what they have done. However, this is not the same with the idea of simple vengeance. In this sense, you may read Cryer et al. (at 24-5) for the ICTY Appeals Chamber (“ICTY A.Ch.” hereinafter) in Aleksovski (para. 185) and the ICTY Trial Chamber (“ICTY T.Ch.” hereinafter) in Nikolić (paras. 86-7).
‘Deterrence’ is based on the understanding that punishment ought to be imposed to prevent both the offender and the population more generally from engaging in prohibited conduct.
‘Deterrence’ is based on the understanding that punishment ought to be imposed to prevent both the offender and the population more generally from engaging in prohibited conduct.
‘General prevention/deterrence’ (genel önleme) refers to the deterrent effect (caydırıcılık) that the punishment of a criminal has on other individuals who might be considering committing a criminal offence.
‘Special prevention’ (individual deterrence - özel önleme) aims at preventing the perpetrator from committing another offence. This is achieved by both isolating the criminal from society by keeping him in detention (incapacitation), and by resocializing/reforming him through the corrective (ıslah edici) effect of the enforcement of the sentence (rehabilitation)*.
* Cryer et al. (at 28-9) handles incapacitation and rehabilitation as separate theories of punishment. Under Turkish criminal law, incapacitation would be taken in conjunction with individual deterrence, and rehabilitation would be considered as the ultimate objective (and not merely a justification) for imposing a criminal sanction.
International tribunals have accepted deterrence as a justification for punishment, but only within limits. In this sense, see the ICTY A.Ch. in Tadić (para. 48) and the ICTY T.Ch. in Nikolić (paras. 89-90), Cryer et al. at 26-7.
International tribunals have accepted deterrence as a justification for punishment, but only within limits. In this sense, see the ICTY A.Ch. in Tadić (para. 48) and the ICTY T.Ch. in Nikolić (paras. 89-90), Cryer et al. at 26-7.
Although the prospect of being put to trial won’t, by itself, suffice to keep potential criminals from perpetrating atrocities, the risk of criminal responsibility can influence their decisions.
In brief, the punishment of int’l. crimes can make “humankind conscious of the fact that international law is law and will be implemented against lawbrakers” (cited from Jescheck in Werle at 35).
The legitimacy of ICL is based on the purpose of punishment. It is sometimes argued that the justifications for punishment may differ, or at least be differently interpreted, between ICL and domestic criminal law.
The legitimacy of ICL is based on the purpose of punishment. It is sometimes argued that the justifications for punishment may differ, or at least be differently interpreted, between ICL and domestic criminal law.
Even so, the case-law of the ICTs upholds the applicability of traditional purposes of punishment to ICL.
Therefore, retribution and deterrence are the main purposes of imposing a criminal sanction under ICL. Incapacitation and rehabilitation seem to play a lesser role.
ICL is legitimate because punishment makes up for the violation of freedom in interpersonal relations and the negation of general world law (Weltrecht) (Werle at 33).
The preventive effect of ICL is especially important as it is widely believed that the “culture of impunity” for large-scale human rights violations which has reigned until very recently was a major factor for their persistent recurrence (Werle at 35).
Also see Preambular para. 5 of the ICC Statute which asserts that the parties are “[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.
In addition, it is argued that prosecuting crimes under ICL also has two other specific effects.
In addition, it is argued that prosecuting crimes under ICL also has two other specific effects.
- Acknowledgement and truth-seeking aspect of trials (recording history): representatives of repressive systems often deny the truth of human rights violations allegations. Convictions constitute an official acknowledgement of injustice and of victims’ suffering. Trials set down a permanent record of the crimes that will stand the test of time, thus contributing to the prevention of historical revisionism.
Individualisation of responsibility: We’ll return to the importance of this factor later on.
Cryer et al. (at 29) would also add denunciation/education as a justification for punishment. Criminal procedures are an opportunity for communicating with the offender, the victim and wider society (about) the nature of the wrong done. The purpose is to engage offenders, and attempt to make them understand what was wrong with their action, whilst reaffirming the norm in the society and educating society about the unacceptable nature of the conduct condemned.
Finally, ICL may also entail broader goals (Cryer et al. at 30 et seq.):
Finally, ICL may also entail broader goals (Cryer et al. at 30 et seq.):
- Justice for victims: Prosecutions may provide a sense of justice having been done or ‘closure’ for victims.
- Post-conflict reconciliation: The satisfaction of victims and the telling of truth are said to form the basis of a society moving beyond its differences. Providing a sense of justice through prosecution for int’l. crimes can facilitate societal reconciliation and provide the preconditions for a durable peace. This is often expressed in the aphorism “no peace without justice”. However, this understanding is not supported by empirical proof, and there have been societies which managed to reconcile without resorting to trials for past abuses.
Three different areas may fall within the ambit of ICL:
Three different areas may fall within the ambit of ICL:
Territorial scope of application of criminal law (ceza kanunlarının yer bakımından uygulanması)
Int’l. (legal/judicial) cooperation in fighting criminality
Crimes directly prosecutable under int’l. law and related procedures
Rules on extraterritorial jurisdiction determine whether a case that involves a foreign element (e.g., a crime committed on foreign territory, or committed by or against a foreign national) is subject to domestic criminal jurisdiction and which norms are to be applied (Werle at 44).
Rules on extraterritorial jurisdiction determine whether a case that involves a foreign element (e.g., a crime committed on foreign territory, or committed by or against a foreign national) is subject to domestic criminal jurisdiction and which norms are to be applied (Werle at 44).
To put it more simply, these rules concern the role of national courts in combating criminality with an int’l. element. For example, the offender or victim or witnesses might be of foreign origin.
It includes the grounds of jurisdiction asserted by national courts to adjudicate crimes and the law applied by national courts in the prosecution of these crimes.
The area of territorial application of criminal law is regulated through domestic rules. These rules clarify whether a certain conduct falls within national jurisdiction and if so, which criminal code has to be applied.
This is why some writers (e.g., Werle at 44) argue that such rules are purely domestic in nature.
Principles of extraterritorial jurisdiction: the nationality or active personality (faile göre şahsilik) principle, the passive personality (mağdura göre şahsilik) principle, the protection principle (korunma ilkesi), the universality principle (evrensellik ilkesi), the principle of vicarious administration of justice (ikame yargı yetkisi).
A second area strictly connected to the one mentioned above, is international co-operation for the repression of international or transnational crimes. Indeed, to provide an effective fight against criminality international cooperation and treaties may be necessary.
A second area strictly connected to the one mentioned above, is international co-operation for the repression of international or transnational crimes. Indeed, to provide an effective fight against criminality international cooperation and treaties may be necessary.
This area includes mutual legal and police co-operation, including extradition, international legal aid (istinabe), recognition and enforcement of foreign judgments, communication between States of evidence and other documentation facilitating criminal prosecution, transfer of judicial proceedings across two jurisdictions. (Co-operation between states is referred to as “horizontal co-operation”).
In addition, co-operation between states and int’l. criminal tribunals (vertical co-operation) is also important.
One view (Werle at 44) distinguishes such rules from ICL in that, unlike ICL, these rules are purely procedural and do not create individual criminal responsibility.
A third area regards those crimes, such as genocide, crimes against humanity and war crimes which can be directly prosecuted by international courts through the application of int’l. law.
A third area regards those crimes, such as genocide, crimes against humanity and war crimes which can be directly prosecuted by international courts through the application of int’l. law.
Therefore, international crimes, the tribunals established to prosecute such crimes and their substantive and procedural law form the content of this area.
According to another view (Boister), the following areas should be distinguished:
According to another view (Boister), the following areas should be distinguished:
Comparative transnational or inter-State criminal law (national laws that deal with int’l. or cross-border aspects of substantive and procedural criminal law);
Suppression conventions (int’l. treaties define certain offences and set out procedures that States are obliged to follow (e.g. the duty to either prosecute or extradite), but individual criminal responsibility arises only under national law, it is up to national states to prosecute the individual);
Int’l. crimes by States (the application of criminal responsibility not to individuals but to the abstract collective entity of the state);
Int’l. individual criminal responsibility (doctrines by which int’l. law imposes criminal responsibility directly upon individuals, regardless of national laws).
As you see, this distinction is partly based on, and comprises different concepts, such as “int’l. crimes by States” or “suppression conventions”.
Stricto sensu (dar anlamda): “The law applicable in an international criminal court having general jurisdiction to try those who commit acts which int’l. law proscribes and which it provides should be punished”.
Stricto sensu (dar anlamda): “The law applicable in an international criminal court having general jurisdiction to try those who commit acts which int’l. law proscribes and which it provides should be punished”.
Another definition (Werle at 29): ICL “encompasses all norms that establish, exclude or otherwise regulate responsibility for crimes under int’l. law.”
As you see, both definitions only encompass the third area.
For another definition which only comprises the third area, see Cryer et al. at 5.
Indeed, in many countries such as France, Germany, Italy and Spain it is argued that the first two areas are in fact part of domestic criminal law and form part of “Criminal international law (droit pénal international/ internationales strafrecht)”.
According to this view, only the third area is truly the subject of international criminal law (droit international pénal, Völkerstrafrecht). As for the first two areas, they are, in fact, part of municipal law.
Acccording to a similar distinction proposed by Dönmezer/Erman and widely accepted in Turkish academic writings, the first two areas should be named “Milletlerarası (Uluslararası) Ceza Hukuku”, while only the latter shall be conceptualised as ”Devletlerarası Ceza Hukuku”.
Acccording to a similar distinction proposed by Dönmezer/Erman and widely accepted in Turkish academic writings, the first two areas should be named “Milletlerarası (Uluslararası) Ceza Hukuku”, while only the latter shall be conceptualised as ”Devletlerarası Ceza Hukuku”.
In this distinction, devletler ceza hukuku indicates conduct which is punishable directly pursuant to public int’l. law (third area).
Another possible distinction: International criminal law v Transnational criminal law
Another possible distinction: International criminal law v Transnational criminal law
Until the establishment of the various int’l. courts and tribunals in the 1990s, transnational criminal law tended to be used to refer to those parts of a State’s domestic criminal law which deal with transnational crimes, that is, crimes with actual or potential transborder effects (Cryer et al. at 5-6)
Therefore, in this sense, it largely corresponds to the first and second area in our distinction.
In fact, Cryer at al. argues that transnational criminal law includes the rules of national jurisdiction under which a State may enact and enforce its own criminal law where there is some transnational aspect of a crime*. It also covers methods of cooperation among States to deal with domestic offences and offenders where there is a foreign element and the treaties which have been concluded to establish and encourage this inter-State cooperation**.
In sum, Cryer et al. use the term “transnational criminal law” to refer to “criminal international law” (Internationales Strafrecht in German, droit pénal international in French).
Later on, we shall use ‘transnational criminal law’ in a different sense (Boister at 13).
* As you see, this is the first area (territorial scope of application of domestic criminal law) in the three-fold distinction we have adopted.
** This would correspond to the second area.
These distinctions are no longer necessary. All the areas mentioned above form part of the discipline known as ICL.
These distinctions are no longer necessary. All the areas mentioned above form part of the discipline known as ICL.
The truth is that even the first two areas are largely based on int’l. treaties and customs, and bear an international element.
There are many rules of int’l. nature which aim at preventing conflict of jurisdictions. Many multilateral treaties concluded within regional organisations lay down rules regarding int’l. cooperation in criminal affairs.
The classic view that the first two areas are only part of domestic law is no longer acceptable. Hence, ICL encompasses:
- Substantive ICL + procedural ICL + rules regarding int’l. cooperation + territorial scope of application of domestic criminal law.
Turkish definition: “UCH, uluslararası hukukun öngördüğü suçları, bunları yargılayacak mahkemelerin esasa (substantive) ve usule ilişkin (procedural) uygulayacakları kuralları ve yabancılık unsuru taşıyan suçlarla (crimes with an extraterritorial element) ilgili cezai sorunları uluslararası düzeyde çözmek üzere, uluslararası işbirliğini düzenleyen bir hukuk dalı”dır.
Cassese is also of the view that a modern conception of ICL should take into account the role played by national courts in int’l. criminal law on the following grounds:
Cassese is also of the view that a modern conception of ICL should take into account the role played by national courts in int’l. criminal law on the following grounds:
- First, national courts have strongly contributed to the development of ICL;
- Second, int’l. courts take into due account national case law and the way national courts apply the relevant law;
- Fourth, the fact that the newly created permanent ICC is complementary to national jurisdiction (in other words, that it can only enter into play when national criminal jurisdiction has not done so) makes it imperative for the ICC to have full knowledge of the legal framework of national courts’ judicial action.
All the issues discussed above are an integral part of ICL.
All the issues discussed above are an integral part of ICL.
Therefore, ICL is, foremost, a body of int’l. rules designed to proscribe int’l. crimes and to impose upon states the obligation to prosecute some of these crimes and to regulate international proceedings for the prosecution of such crimes.
In this field, substantive int’l. criminal law is the set of rules indicating which acts constitute int’l. crimes and the rules regarding criminal responsibility of individuals. Thus, the conditions for criminal liability and the circumstances exonerating from it; the objective and subjective elements of each specific crime are laid down.
The set of rules known as procedural int’l. criminal law governs the action by prosecuting authorities and the various stages of international trials.
In addition, rules aiming at laying down the grounds for international cooperation in order to resolve problems related to criminal matters and rules regarding the territorial scope of application of criminal laws also form part of ICL.
Some scholars use this term to define those criminal rules which are directly applicable at national level and that have been formed by organs established through international treaties.
Some scholars use this term to define those criminal rules which are directly applicable at national level and that have been formed by organs established through international treaties.
But, as for today, there is no international organisation which has been vested with the power to lay down criminal rules. In that sense, there is no supranational criminal law.
Although being a supranational organisation vested with extensive powers, not even the EU has the authority to legislate in the criminal field. In fact, although the treaties establishing the Union authorise it to lay down criminal rules, the sanction that may be imposed for the breaches of these rules is only of administrative nature. It is argued, however, that the first serious beginnings of supranational criminal law may be discerned within the framework of the “Europeanization of criminal law” even if there is yet no European criminal law as such (Werle at 44).
Examples to supranational criminal law may be some UN SC Resolutions (e.g. 1373 (2001), 1422 (2002)) which concern penal law, and are binding on all member States.
Finally, some writers use this term to describe the penal system of the existing int’l. criminal tribunals and courts. However, this use is incorrect since the ICTY, ICTR and ICC are not supranational organisations (Cryer et al. at 8-9)
Humanitarian law (law of war / law of armed conflict – insancıl hukuk/savaş hukuku/silahlı çatışma hukuku) is the set of rules which regulates the conduct of warfare, and it primarily aims at protecting civilians, those hors de combat (including those who have laid down arms) during wartime.
Humanitarian law (law of war / law of armed conflict – insancıl hukuk/savaş hukuku/silahlı çatışma hukuku) is the set of rules which regulates the conduct of warfare, and it primarily aims at protecting civilians, those hors de combat (including those who have laid down arms) during wartime.
Its basic objective is to minimise the destructive effects of the war, especially with regard to the civilian population.
Its sources: in primis, 1907 The Hague Conventions and 1949 Geneva Conventions (along with the three Additional Protocols of 1977).
International humanitarian law (IHL) embraces principles and rules designed to regulate warfare both by restraining states in the conduct of armed hostilities and by protecting those persons who do not take part, or no longer take part in combat.
According to the International Committee of the Red Cross (ICRC), IHL is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not, or are no longer participating in the hostilities and restricts the means and methods of warfare.
According to the International Committee of the Red Cross (ICRC), IHL is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not, or are no longer participating in the hostilities and restricts the means and methods of warfare.
International humanitarian law (u.arası insancıl hukuk) is also known as the law of war (savaş hukuku) or the law of armed conflict (silahlı çatışma hukuku). The majority of writers use these terms interchangeably.
IHL is triggered by the outbreak of an armed conflict, and aims at regulating the conduct of such conflict (ius in bello).
In simple words, IHL applies once the decision to resort to force has been taken and fighting has started (Greenwood, in: Evans (ed.), at 783).
The rules of IHL have to be respected by states, as well as the individuals participating to the conflict. Therefore, the armed forces of the State, and the dissident armed groups have to fight in accordance with such rules.
The rules of IHL have to be respected by states, as well as the individuals participating to the conflict. Therefore, the armed forces of the State, and the dissident armed groups have to fight in accordance with such rules.
İus in bello will apply regardless of whether resort to the use of force (ius ad bellum) was lawful or not. That is because ius ad bellum is an independent issue.
In other words, IHL applies equally to all parties to an armed conflict, irrespective of who is the aggressor.
Hence, the party fighting a ‘just’ war is equally bound with the provisions of IHL. From another perspective, the fact that a country has been invaded unlawfully does not mean that all killings of combatans were war crimes.
There are many treaties developing IHL. These are sometimes divided into ‘Geneva law’, based on the four Conventions of 1949 and the two (now three) additional protocols of 1977, and ‘Hague law’, based on the 1907 regulations.
There are many treaties developing IHL. These are sometimes divided into ‘Geneva law’, based on the four Conventions of 1949 and the two (now three) additional protocols of 1977, and ‘Hague law’, based on the 1907 regulations.
The ‘Geneva law’ primarily focuses on protecting civilians and others who are not active combatants (such as the sick and wounded), whereas the ‘Hague law’ recognizes that ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’, and regulates specific means and methods of warfare, for the purposes of reducing unnecessary suffering and destruction.
However, it must be noted that Add. Prot. I (1977) updated and combined certain elements of Hague law and Geneva law, thus making this traditional distinction less significant.
It may be said that the provisions of the 1907 Hague Regulations, much of the 1949 Geneva Conventions, and some provisions of the two additional protocols have become part of customary int’l. law, thus binding all states regardless of whether they have ratified the relevant treaties.
As can be seen, the purpose and scope of IHL differs from that of ICL.
As can be seen, the purpose and scope of IHL differs from that of ICL.
Until the second half of the 20th century, violations of IHL rules initially generated state responsibility.
Gradually, some of these violations came to be considered as breaches of ICL entailing individual criminal responsibility, thus being regarded as war crimes.
Therefore, a war crime is based on a violation of a rule of IHL. Consequently, IHL is the point of reference in interpreting provisions concerning war crimes.
However, not every violation of IHL is of a criminal nature. Thus, it may be said that war crimes law is a set of secondary rules that criminalize a subset of the primary rules found in IHL.
Int’l. law does not provide a definitive answer concerning which rules are also subject to criminal sanctions because no int’l. codification exists in this regard.
Art. 8 (2) of the Rome Statute marks an important progress as it is accepted that it lists the core war crimes. However, that article is not exhaustive and other war crimes may also exist under customary int’l. law.
