INTERNATIONAL CRIMINAL JUSTICE

A Report Submitted in Partial Fulfillment

Of the Requirement for Humanitarian Law
In Armed Conflicts Class

Submitted by:
Alcanar, Bernalyn D.
Benamir, Daniel A.
Cantillon, Lissy Ann
Esguerra, Grace C.
Nubla, Jessica
Sumbilla, Ian Lucky P.

Polytechnic University of the Philippines – College of Law

A.Y. 2019 - 2020
A. ICTY – ALCANAR
B. International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda

(ICTR) was an ad hoc tribunal established on November 8,
1994 by the United Nations Security Council by virtue of
resolution 955 in accordance with Chapter VII of the UN
Charter to "prosecute persons responsible for genocide
and other serious violations of international humanitarian
law committed in the territory of Rwanda and neighboring States, between
1 January 1994 and 31 December 1994"1. The Tribunal is located in
Arusha, Tanzania, and has offices in Kigali, Rwanda. Its Appeals Chamber
is located in The Hague, Netherlands.2 It formally closed last December 31,
2015.

BACKGROUND
The Rwandan genocide was a directed, pre-meditated entire
systematic campaign attempt by the Hutu ethnic majority aimed at wiping
out each and every member of the minority Tutsi group. The Hutu-
controlled government and allied militias slaughtered between 800,000 and
one million Tutsis before a Tutsi rebel group overthrew them. Over 100,000
Hutus were also killed, including both moderate Hutus killed by Hutu
extremists and those killed by Tutsis in so-called "revenge killings."

The genocide was set into motion by the death of Rwandan President
Juvénal Habyarimana. On April 6th, 1994, Habyarimana's plane was shot
down by a missile of unknown origin. Government-aligned forces used
(Hutu) Habyarimana's death as an excuse to begin a campaign of
slaughter they had been planning for some time, and the genocide began
on April 7th. It went on for about 100 days with over 800,000 Rwandans
murdered.3

In an effort to punish those responsible for genocide, the United

Nations established the International Criminal Tribunal for Rwanda.

COMPOSITION
1
Statute of the International Criminal Tribunal for Rwanda (ICTR), Preamble. 1994
2
The ICTR in Brief. https://unictr.irmct.org/en/tribunal. Last visited October 19, 2019
3
Beauchamp, Zack. “Rwanda’s Genocide – what happened, why it happened, and how it still matters”. April 10,
2014
 The ICTR consists of three major organs: the Chambers, comprising
three Trial Chambers and an Appeal Chamber; the Prosecutor; and a
Registry.

Each Trial Chamber may be divided into sections of three permanent

judges each and seven permanent judges for the Appeals Chamber. In
total, the Chambers consist of 16 permanent judges and 9 ad litem judges,
all chosen by the United Nations General Assembly from a list submitted by
the Security Council taking into consideration experience of the judges in
criminal law, international law, including international humanitarian law and
human rights law as well as their high moral character, impartiality and
integrity. The judges elected in accordance with this article shall be
elected for a term of four years, not eligible for re- election.

The Prosecutor shall be responsible for the investigation and

prosecution of persons responsible for serious violation of offenses within
the jurisdiction of ICTR. He or she should act independently as a separate
organ of the International Tribunal for Rwanda and not seek or receive
instructions from any other government or from any other source. The
Office of the Prosecutor shall be composed of a Prosecutor and such other
qualified staff as may be required that shall be appointed by the Secretary-
General who shall serve a four-year term, eligible for re-appointment.

The Registry consisting of a Registrar and such other staff shall be

responsible for the administration and servicing of the tribunal. Likewise, he
or she shall be appointed by the Secretary-General who shall serve a four-
year term, eligible for re-appointment.4

JURISDICTION
The Statute of the ICTR limits the territorial jurisdiction of the
International Tribunal for Rwanda to the territory of Rwanda including its
land surface and airspace as well as to the territory of neighbouring States
in respect of serious violations of international humanitarian law committed
by Rwandan citizens and the temporal jurisdiction extends to a period
beginning on January 1, 1994 and ending on December 31, 1994.

The statute likewise vested the Tribunal the power to prosecute

persons committing genocide, crimes against humanity and serious

4
Statute of the International Criminal Tribunal for Rwanda (ICTR), 1994
violations of Article 3 common to the Geneva Conventions and of Additional
Protocol II.

Genocide means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Acts punished under Art. 2 includes:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

The following offenses shall be considered as Crimes against

Humanity if it is committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or
religious grounds:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts.

Violations of Article 3 common to the Geneva Conventions of

August 12, 1949 for the Protection of War Victims, and of Additional
Protocol II thereto of June 8, 1977. These violations shall include, but
shall not be limited to:
 (a) Violence to life, health and physical or mental well-being of
persons, in particular murder as well as cruel treatment such as
torture, mutilation or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form
of indecent assault;
(f) Pillage;
(g) The passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly
constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilised peoples;
(h) Threats to commit any of the foregoing acts.

The International Tribunal for Rwanda and national courts shall have
concurrent jurisdiction to prosecute persons under its territorial and
temporal jurisdiction but ICTR shall have the primacy over the national
courts of all States. At any stage of the procedure, the International
Tribunal for Rwanda may formally request national courts to defer to its
competence in accordance with the present Statute and the Rules of
Procedure and Evidence of the International Tribunal for Rwanda.

MAJOR CASES BEFORE ICTR

Since it opened in 1995,

the Tribunal has indicted 93
individuals whom it considered
responsible for serious violations
of international humanitarian law
committed in Rwanda in 1994.
Those indicted include high-ranking military and government officials,
politicians, businessmen, as well as religious, militia, and media leaders.

On 9 January 1997, the ICTR held its first trial for The Prosecutor v.
Jean-Paul Akayesu5 which marked the first time in the history of
international law that rape was considered a component of genocide.
5
International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu (ICTR-96-4-T). September 2,
1998.
Subsequently, Akayesu was found guilty of nine counts of genocide, direct
and public incitement to commit genocide and crimes against humanity for
extermination, murder, torture, rape and other inhumane acts. The
conviction of Akayesu defined genocide as “the act of committing certain
crimes, including the killing of members of the group or causing serious
physical or mental harm to members of the group with the intent to destroy,
in whole or in part, a national, racial or religious group, as such”. Likewise,
ICTR also indicated that the crime of rape was “a physical invasion of a
sexual nature, committed on a person under circumstances which are
coercive” and underscored that sexual assault constitutes “genocide in the
same way as any other act as long as [it was] committed with the specific
intent to destroy, in whole or in part, a particular group, targeted as such”.
Akayesu is currently serving life imprisonment in Mali.

Another landmark decision of ICTR is the case of The Prosecutor v.

Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze 6
commonly known as the “Media Case” which hold members of the media
responsible for broadcasts intended to inflame the public to commit acts of
genocide.

On 2011, in the case of The Prosecutor vs Nyiramasuhuko et al.7,

ICTR found Pauline Nyiramasuhuko guilty of the offenses charged against
her making ICTR the first international tribunal to convict a woman of
genocide and genocidal rape.

FORMAL CLOSURE
After more than 20 years of prosecuting those most responsible for
the Rwandan genocide of 1994, the International Criminal Tribunal for
Rwanda (ICTR) has issued its final judgment and closed its doors. In its
forty-fifth and final judgment, delivered on December 14, 2015, the Appeals
Chamber decided appeals from six defendants previously convicted by the
Trial Chamber. With this case finalized, the ICTR formally closed at the
end of 2015.

6
International Criminal Tribunal for Rwanda, The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and
Hassan Ngeze (ICTR-99-52-T). December 3, 2003.
7
International Criminal Tribunal for Rwanda, The Prosecutor v. Nyiramasuhuko et. al. (Butare) (ICTR-98-42). June
24, 2011
 The Residual Mechanism for International Criminal Tribunals (MICT),
established by the UN and headquartered in the Hague, will continue to
operate from an office in Arusha to conclude any unfinished ICTR business
and support domestic prosecutions of criminals involved in the 1994
genocide. The UN plans to transfer the ICTR archives to a smaller facility in
Tanzania; however, the Rwandan government is demanding that the
archive be brought there. The Rwandan government argues that the ICTR
sets precedent for Rwanda and its judiciary is entitled to the records as a
judicial tool. Moreover, the national authorities raised concerns regarding
enforcement of the ICTR’s sentences, which they say could be better
addressed through possession of the archives. 8

8
ICTR reduces Butare Defendants’ Sentences in Last Judgment before Closing (2016).
https://ijrcenter.org/2016/01/19/ictr-reduces-butare-defendants-sentences-in-last-judgment-before-
closing/#more-6550. Last visited Oct. 19, 2019
C. MECHANISM FOR THE INTERNATIONAL CRIMINAL
TRIBUNALS

What is MICT?
The United Nations Mechanism for the International
Criminal Tribunals (MICT or Mechanism), is
an international court established by the United
Nations Security Council in 2010 to perform the
remaining functions of the International Criminal
Tribunal for the former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR) following the
completion of those tribunals' respective mandates.

History of MICT
Both the ICTY and the ICTR were meant to be
temporary institutions that would conclude after their
mandate to investigate crimes and prosecute
individuals was completed. Although both tribunals
have completed substantially all of their mandates,
there are residual functions that will not be
accomplished for many more years. For example,
future trials may be held once remaining ICTR
fugitives are captured, convicted persons may still petition for early release,
protective orders for witnesses may need to be modified, and the archives
that contain confidential documents need to be safeguarded.

In the early 1990s, the United Nations Security

Council established two criminal courts whose
purpose was to investigate and prosecute
individuals responsible for war crimes, crimes
against humanity, and genocide. The first of these
courts was the International Criminal Tribunal for
the former Yugoslavia (ICTY), which was
established in 1993 to investigate crimes
committed during the Yugoslav Wars. The second court, the International
Criminal Tribunal for Rwanda (ICTR), was established the following year to
address crimes committed during the Rwandan genocide.

In order to oversee the residual functions of the ICTY and ICTR in an

efficient manner, the Security Council passed Resolution 1966 on 22
December 2010, which created the Mechanism.
The Mandate of MICT
The United Nations Mechanism for the International Criminal Tribunals
(MICT or Mechanism) is mandated to perform a number of essential
functions previously carried out by the International Criminal Tribunal for
Rwanda (“ICTR”) and the International Criminal Tribunal for the former
Yugoslavia (“ICTY”). In carrying out these essential functions the
Mechanism maintains the legacies of these two pioneering ad
hoc international criminal courts and strives to reflect best practices in the
field of international criminal justice.

Insofar as it was established by a separate UN Security Council Resolution,

and, as well as carrying out the residual functions of witness protection,
archive management, detention supervision, and responding to national
authorities’ requests for assistance, it also has the power to conduct trials,
re-trials, and appeals.

The Creation of MICT

The United Nations Security Council created the Mechanism on 22

December 2010 as a “small, temporary and efficient structure”. The
Mechanism started operating on 1 July 2012 in Arusha, United Republic of
Tanzania, and on 1 July 2013 in The Hague, the Netherlands. The Arusha
branch inherited functions from the ICTR, and the Hague branch from the
ICTY.
 During the initial years of the Mechanism’s
existence, it operated in parallel with the
ICTR and the ICTY. Following the closure of
the ICTR (on 31 December 2015) and the
ICTY (on 31 December 2017), the
Mechanism continued to operate as a stand-
alone institution.

“By establishing the Mechanism, the Council

has helped to guarantee that the closure of
the two pioneering ad hoc tribunals does not
open the way for impunity to reign once more.”
-President Theodor Meron, UN Security Council, 7 June 2012

ORGANIZATION
The Mechanism consists of a single set of Principals: a President, a
Prosecutor, and a Registrar. The Principals have responsibility over both
branches of the Mechanism and oversee each of the three organs,
respectively.

PRINCIPALS
The President is appointed by the UN Secretary-General after consultation
with the President of the UN Security Council and the Judges of the
Mechanism. The Prosecutor is appointed by the UN Security Council on
nomination by the UN Secretary-General. The Registrar is also appointed
by the UN Secretary-General.

The President acts as the institutional head of the Mechanism. He is

responsible for the overall execution of the institution’s mandate, and for
representing the Mechanism before the UN Security Council and the UN
General Assembly. He presides over the Chambers—the judicial organ of
the Mechanism—and is responsible for appointing Judges to cases as
required. The President of the Mechanism shall also serve as a Judge in,
and presides over, the Appeals Chamber.

Judge Carmel Agius (Malta)

President of the International Residual
Mechanism for Criminal Tribunals
since 19 January 2019.
Born on 18 August 1945 in Sliema, Malta.

The Prosecutor is responsible for the investigation and prosecution of

persons covered by Article 1 of the Statute of the Mechanism. The Statute
provides that the Prosecutor “shall act independently as a separate organ
of the Mechanism. He or she shall not seek or receive instructions from any
government or from any other source”.

Serge Brammertz
Chief Prosecutor of the International
Residual Mechanism for Criminal
Tribunals since 29 February 2016.
Born: 1962, Eupen, Belgium.

The Registrar leads the Registry, which provides administrative, legal,

policy and diplomatic support to the Mechanism's operations, and assists
the Chambers and the Office of the Prosecutor, in the performance of their
responsibilities through the provision of support services.

Mr. Olufemi Elias (Nigeria)

Registrar of the International Residual
Mechanism for Criminal Tribunals since
1 January 2017.

Chambers
Article 4 of the Statute provides that the Chambers shall comprise a Trial
Chamber for each branch of the Mechanism and an Appeals Chamber
common to both branches of the Mechanism.

Chamber Judges
A roster of 25 independent
Judges, including the President,
adjudicate proceedings at both
branches of the Mechanism. In so
far as possible, and so as to
maximize efficiency, Judges work remotely and are only required to be at
either branch as necessary and at the request of the President. The Judges
are supported by Chambers staff at both branches.

Defence Counsel

In addition, a roster of Defence

Counsel is maintained to ensure that
the highest standards of fair trial
rights are upheld. Rule 43 of the
Mechanism’s Rules of Procedure and
Evidence provide that “[w]henever the
interests of justice so demand,
Defence Counsel shall be assigned to
suspects or accused who lack the
means to remunerate such Counsel”. The Registry administers the
Mechanism’s legal aid system, which provides support to defence teams.

The Right to a Defence

The success and credibility of the ICTR and the ICTY, and by extension,
the Mechanism, have depended greatly on the crucial role that a competent
and robust defence plays in ensuring the right of the accused to a fair trial,
and in upholding the principle of equality of arms between the Prosecution
and the Defence. The right to a fair trial is a fundamental human right, and
a basic principle of criminal justice. It applies equally to accused before the
Mechanism, which will continue the jurisdiction, rights, obligations and
essential functions of the ICTR and the ICTY.

The Right to Defence Counsel

All suspects and accused persons appearing before the Mechanism, and
all persons detained under its authority, have the right to be represented by
defence counsel. Accordingly, and if an accused wishes to be represented
by defence counsel, the accused can either retain his own counsel or, if
found indigent by the Registrar, be assigned one at the expense of the
Mechanism. This, and other fundamental rights of the accused, are
enshrined in Article 19 of the Mechanism’s Statute (Statute), and are
further regulated in the Rules of Procedure and Evidence (Rules) and the
Directive on the Assignment of Defence Counsel (Directive), ensuring that
the legal assistance provided to the accused is effective and of the highest
quality. Finally, and while there is no on-going right to legal aid once a case
has reached finality, the Registry of the Mechanism does formally
recognise counsel who are acting on behalf of a convicted person.

Assignment of Counsel and Legal Aid

As indicated above, accused persons who demonstrate that they cannot
afford to pay for counsel, either in whole or in part, are entitled to the
assignment of counsel, paid for by the Mechanism. As part of its provision
of legal aid, the Mechanism also provides remuneration for support staff
assisting the assigned defence counsel. If the accused has means to
remunerate counsel partially, the Mechanism will only cover that portion of
the costs of the defence which the accused cannot bear. However, before
counsel can be assigned to indigent (or, partially indigent) accused they
need to be admitted to practice before the Mechanism. This legal aid
system harmonizes and builds on the practices and policies of the ICTR
and the ICTY.

The Right to Self-Representation

In accordance with Article 19(4)(d) of the Statute, an accused person may
elect to represent himself in person. Where the Chamber seised of the
case recognizes the accused’s right to self-representation and allows the
accused to conduct his own defence, the Mechanism (through the
Registrar) ensures the provision of adequate facilities so that the accused
is in a position to exercise this right effectively.

Detention and the IRMCT

The Mechanism maintains two detention facilities at its respective
branches, which house detainees subject to its jurisdiction. Both are
operated in line with international standards for treatment of detainees.

A cell at the United Nations Detention Unit in The Hague.

The Mechanism maintains two detention facilities at its respective
branches, which house detainees subject to its jurisdiction. Both are
operated in line with international standards for treatment of detainees.
The two facilities, which formerly served the detention needs of the
International Criminal Tribunal for Rwanda (ICTR) and the International
Criminal Tribunal for the former Yugoslavia (ICTY), are known as the
United Nations Detention Facility (UNDF) at the Arusha branch and the
United Nations Detention Unit (UNDU) at the Hague branch.

What are the UNDF and UNDU?

Both the UNDF and the UNDU are remand facilities, as opposed to
penitentiaries. This means that they apply the presumption of innocence to
all detained persons unless and until proven guilty in a court of law.
Additionally, respect for the dignity of the individual is an overarching
principle. Both facilities provide a safe and secure detention environment.
Due to their status as remand facilities, and in accordance with Article 40 of
the Host State Agreements for both branches and Article 25 of the
Mechanism Statute, detainees subject to a final conviction are transferred
to an Enforcement State to serve their sentences. Mechanism detainees
who are acquitted are released from custody.

Operation of the Detention Facilities

The two facilities are under the supervision of the Registrar of the
Mechanism, and are operated in accordance with the Rules of Detention of
the Mechanism. The Rules of Detention are inspired by: The overriding
principles of humanity and respect for human dignity; The extensive
experience of the ICTR Detention Facility and the ICTY Detention Unit;
and, International legal instruments pertaining to detention, in particular
The United Nations Standard Minimum Rules for the Treatment of
Prisoners (also known as the “SMR” or the Nelson Mandela Rules).
The Mechanism also consulted with the International Committee of the Red
Cross in the development of the Rules of Detention.

Each facility seeks to achieve the highest international standards for

treatment of detainees within the context of its local community.
Accordingly, the physical and emotional welfare of all Mechanism
detainees is managed through an understanding of their individual needs,
while all persons in detention receive impartial treatment. No one is
segregated on the basis of their race, ethnicity, nationality, religion, or
class.

Welfare of Detainees

In addition to providing for the physical and emotional welfare of detainees

during pre-trial, trial, and appeal, both the UNDF and the UNDU have
facilities to run comprehensive programmes of remand, providing a full
daily activity schedule. This includes access to facilities suitable for the
preparation of one’s defence, as well as regular opportunities for activities,
such as:
a) Fresh air;
b) Exercise/sport;
c) Educational classes; and
d) Spiritual guidance.

Additionally, detainees may communicate by letter and telephone with their

families and friends, and receive in-person visits from family, friends, and
legal and diplomatic representatives. Such communications are
administered in line with regulations intended to safeguard the security and
good order of the UNDF and the UNDU, respectively, and to protect the
integrity of the judicial proceedings.

Healthcare
 Further, both the UNDF and the UNDU
benefit from well-equipped medical
facilities, staffed with a Medical Officer
and assistants, who are responsible for
providing detainees with daily healthcare
and emergency services commensurate
with what is available in the local
community. This is especially important
as most detainees are of an advanced
age, requiring medical attention unique to their individual circumstances.

Finally, all detainees are provided with food which meets dietary standards
and is prepared in accordance with modern hygiene requirements, subject
to the supervision of the responsible Medical Officer. Such food takes into
account the age, health, religious, and cultural requirements of detainees,
as much as is practicable.

International Compliance
Both detention facilities are inspected regularly by the International
Committee for the Red Cross, which ensures that the Rules of Detention
are properly applied and that both facilities are operating in accordance
with international standards.

Completion Strategies
The establishment of the Mechanism is a key step in
the Completion Strategies of the two tribunals. The
tracking, arrest and prosecution of the remaining
fugitives indicted by the ICTR is a top priority for the
Mechanism. Of the 90 persons indicted by the ICTR, 8
remain at large. Of these, three have been earmarked
for trial by the Mechanism: Félicien Kabuga, Protais
Mpiranya and Augustin Bizimana. The ICTR
Prosecutor has requested referrals to Rwanda in the
cases of the five other fugitives: Fulgence Kayishema,
Charles Sikubwabo, Aloys Ndimbati, Ryandikayo, and
Phénéas Munyarugarama.
D. Mixed Tribunals and Special Chambers9
‘Mixed criminal tribunals’ (also known as “hybrid” or
“internationalized” criminal tribunals) are criminal courts of law that have
features of both international and domestic criminal jurisdictions. This can
be discerned from 1) the way they were established (e.g. agreement
between the host state and the UN), 2) their subject matter-jurisdiction
(both international crimes and national crimes) and 3) their staff (both local
judges/prosecutors and international staff).
At the same time, they are different from both domestic and
international judicial bodies, too. Unlike fully international criminal
jurisdictions, they include judges and prosecutors from the affected regions
and apply a mix of the criminal laws of the country where they operate, as
amended and corrected to reflect international → human rights and criminal
law standards. Unlike typical domestic courts, they include foreign judges
and prosecutors and apply international laws and standards regardless of
the particular constitutional structure of the country concerned. To ensure
enforcement of decisions, they may rely on international forces, mostly or in
part, and for their financing they rely on various donor States and/or
international organizations.
Tribunals which are often mentioned in this category are the 1)
Special Panels and Serious Crimes Unit in East-Timor; 2) Regulation 64
Panels in the Courts of Kosovo; 3) Special Court for Sierra Leone; 4)
Extraordinary Chambers in the Courts of Cambodia; 5) Special Tribunal for
Lebanon. The last one that has been linked to this category is the very
recently established 6) Extraordinary African Chambers.

1. Special Panels and Serious Crimes Unit in East-Timor

The UN acted as transitional authority in East Timor between
the end of the Indonesian occupation in 1999 and
independence in 2002. This UN Transitional Authority in East
Timor (UNTAET) installed the Special Panels for Serious
Crimes (SPSC) in Dili, East Timor.Concerning jurisdiction, the
Panels covered serious international crimes (including
genocide, war crimes, crimes against humanity and torture) on
9
http://cesareromano.com/wp-content/uploads/2015/05/Mixed-crim-tribunals-rev-2-4-7-2010.pdf
 the basis of universal jurisdiction and national crimes committed
between January and October 1999. The crimes charged by
the Panels were only crimes against humanity and national
crimes. The Panels consisted of one national and two
international judges, thus creating a hybrid tribunal. The
Tribunal had primacy over national courts with respect to
crimes within their exclusive jurisdiction.

2. Regulation 64 Panels in the Courts of Kosovo

After the Kosovo war ended, the UN Interim Administration

Mission in Kosovo (UNMIK) wanted to arrange prosecution of
those responsible for crimes committed in Kosovo in 1999.
Thereto UNMIK made it possible for international judges to
serve together with domestic judges in existing courts in
Kosovo, as well as for international prosecutors and defense
lawyers to help out their Kosovar counterparts. By
strengthening the domestic judicial system it would be possible
to take up cases, which the ICTY could not deal with due to
lack of resources and mandate. However, there were great
problems concerning finances, organizational issues and
political games that impeded the functioning of the ethnic-
Albanian-dominated panels.

3. Special Court for Sierra Leone

The Special Court for Sierra Leone ("Special Court", SCSL)
was installed by agreement between the United Nations and
the Sierra Leonean government pursuant to Security Council
Resolution 1315 (2000). The Court has to "prosecute persons
who bear the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law"
committed in Sierra Leone after 30 November 1996 and during
the Sierra Leone Civil War.

4. Extraordinary Chambers in the Courts of Cambodia

The Cambodia Tribunal or Khmer Rouge Tribunal
(Extraordinary Chambers in the Courts of Cambodia) is a court
 set up by agreement between the United Nations and the
Cambodian government in 2003. The ECCC is still part of the
Cambodian court structure and receives assistance through the
UN Assistance to the Khmer Rouge Trials (UNAKRT). Because
there are both local and foreign judges on the bench, of whom
local judges form a majority, it is also considered a hybrid court.
The mandate of the ECCC is to try “senior leaders of Khmer
Rouge and those most responsible for the crimes and serious
violations of Cambodian penal law, international humanitarian
law and customs, and international conventions recognized
Cambodia, that were committed during the period from 17 April
1975 to 6 January 1979.”

5. Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) or “Hariri Tribunal”, is
an international criminal tribunal mandated to prosecute those
responsible for the killing of late Lebanese President Rafiq
Hariri on 14 February 2005. An Agreement between the United
Nations and the Lebanese Republic established the STL
pursuant to Security Council Resolution 1664 (2006). It is not a
UN court, but an independent judicial organization. The STL
opened its doors on 1 March 2009 in in Leidschendam, near
The Hague (the Netherlands) and it has a field office in Beirut,
Lebanon. The Court has jurisdiction over persons responsible
for the attack on Hariri as well as over persons responsible for
related attacks that possibly occurred between 1 October 2004
and 12 December 2005. The Lebanese Criminal Code is
applicable at the STL. International law is used for reasons of
interpretation. The Court has concurrent jurisdiction with
national courts.

6. Extraordinary African Chambers

On 22 August 2012, the African Union (AU) and Senegal
signed an agreement establishing a special court with
international elements within the Senegalese judicial system.
On 8 February 2013, these so-called Extraordinary African
Chambers (EAC) were inaugurated. According to the Statute of
this new mechanism, which has already been qualified as a
 hybrid tribunal by TRIAL, the EAC have the power to prosecute
and try the person or persons most responsible for international
crimes (genocide, crimes against humanity, war crimes and
torture) committed in Chad between 7 June 1982 and 1
December 1990. On 2 July 2013, Hissène Habré, President of
Chad from 7 June 1982 to 1 December 1990, was charged with
crimes against humanity, torture and war crimes and placed in
pre-trial detention. For more information, see here.On 30 May
2016, Hissène Habré was convicted of crimes against
humanity, war crimes, and torture, including sexual violence
and rape, by the Extraordinary African Chambers and
sentenced to life in prison. On 29 July 2016, Habré was ordered
to pay $34,000 (£25,627) to the victims of his crimes.

Rationale for Mixed Criminal Tribunals10

Mixed criminal tribunals are the result of shortcomings affecting both
domestic and international criminal courts in the prosecution of international
crimes.

Shortcomings of Domestic Courts

Prosecuting international crimes can be a burdensome exercise,
materially and politically. Only a few States have the capacity to carry out
such prosecutions. Some might not be able to guarantee the personal
safety of those involved in trials (judges, prosecutors, defence, witnesses,
indictees, etc) or secure custody of indictees who have sought refuge
abroad. Even when they are capable of prosecuting international crimes,
national authorities might not be willing to do so for political reasons.
Notoriously, during the Cold War, perpetrators of international crimes
invariably escaped punishment because they found protection from either
side of the Iron Curtain. Also, national courts might be far from impartial,
especially when they have to adjudicate on international crimes that were
directed against or committed on behalf of their own.

10
http://www.internationalcrimesdatabase.org/Courts/Hybrid
Shortcomings of International Courts
First, these tribunals are removed from the societies affected by the
crimes they are supposed to prosecute. Proceedings take place hundreds
of miles away from where they were committed. It is more difficult for
international criminal tribunals to play a role in the reconciliation or national
reconstruction process under these circumstances and judgments may be
regarded as alien, and thus rejected by the local population and authorities.
Second, fully international criminal bodies tend to grow considerably
in size employing hundreds if not thousands of personnel with significant
costs even when they can be shared by a large number of wealthy States.
Also, there is a further problem from the perspective of their creators. They
tend to develop their own internal logic, momentum, and agenda, which
can be little influenced by their creators, least of all by individual States.
Third, even in the case of the ICC, they cannot address every
possible situation because of restrictions on jurisdiction: temporal,
geographical, or otherwise.
Finally, bodies like the ICTY and the ICTR are established without
relying on the existing judicial system of the State where the crimes
occurred, but starting from a tabula rasa, a process that is time and
resource intensive.
E. JURISDICTION OF THE INTERNATIONAL CRIMINAL
COURT AND PRINCIPLE OF COMPLEMENTARITY

JURISDICTION OF THE INTERNATIONAL CRIMINAL

COURT
What is the International Criminal Court?

The International Criminal Court (“the ICC”

or “the Court”) is a permanent
international court established to
investigate, prosecute and try individuals
accused of committing the most serious
crimes of concern to the international
community as a whole, namely the crime
of genocide, crimes against humanity, war
crimes and the crime of aggression.11 The
International Criminal Court was
established by the Rome Statue which
came into force in April 2002.

A. Personal Jurisdiction of the International Criminal Court

Personal jurisdiction refers to the persons that the ICC will have
jurisdiction over. The ICC presently has jurisdiction only over person who is
more than 18 at the time of the alleged commission of a crime. Due to the
purpose and spirit of the Rome Statute, the ICC rejects the concept of
immunity by stating that “immunities or special procedural rules which may
attach to the official capacity of a person, whether under national or
international law shall not bar the Court from exercising its jurisdiction over
such a person”. 12
It is worth mentioning that persons falling into the jurisdiction of the ICC
are not limited to nationals of states parties, the court can also prosecute
individuals who are nationals of non-party states if the non-party state
11
https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf (Accessed October 2, 2019)
12
Article 25 and 26 of the Rome Statute
accepts the court’s jurisdiction or when the appropriate decision is made by
the Security Council. The following can fall under the personal jurisdiction
of the International Criminal Court
(a) State Parties
(b) National of State Parties
(c) Conduct within the territory of the State Parties
(d) Non-Party States acceding to its Jurisdiction

B. Temporal Jurisdiction of the International Criminal Court

Temporal jurisdiction is the time when a given crime was committed.
According to article 11 of the Rome Statute, the ICC has jurisdiction only on
crimes committed after the entry into force of Rome Statute.13 If a State
becomes a Party to the Statute after its entry into force, the Court may
exercise its jurisdiction only with respect to crimes committed after the entry
into force of the Statute for that State, unless that State has made a
declaration under article 12, paragraph 3.
This provision is based on the universally accepted principle of criminal
law: nullum crimen nulla poena sine lege, which forbids prosecution of the
crimes not considered as such when they were committed.
C. Subject Matter Jurisdiction
Subject matter jurisdiction refers to the types of international crimes that
will be prosecuted by the ICC. Currently, the ICC will have jurisdiction over
four categories of international crimes, which are considered as “the most
serious crimes of concern to the international community as a whole”.
These crimes are the following:
a. Genocide
The crime of Genocide means any of the acts mentioned in Article
6 of the Rome Statute committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group.14 These acts
are the following:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;

13
See Article 11 of the Rome Statute
14
See Article 6 of the Rome Statute
 (c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in
part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another group.

b. Crimes Against Humanity

Crimes Against Humanity means any acts when committed as part
of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack. 15 Theoretically, crimes
against humanity can be called an act of persecution against a
group, so heinous as to warrant punishment under international
law. 16

c. War Crimes
War crimes, considered as violation of established protections
of the laws of war, comprise the following acts: (1) grave breaches
of the Geneva Conventions of 12 August 1949, such as
compelling a prisoner of war or other protected person to serve in
the forces of a hostile Power, and (2) other serious violations of
the laws and customs applicable in international armed conflict,
within the established framework of international law, such as
employing poison or poisoned weapons, and (3) serious violations
of article 3 common to the four Geneva Conventions of 12 August
1949 in the case of an armed conflict not of an international
character, such as the passing of sentences and the carrying out
of executions without previous judgement pronounced by a
regularly constituted court, affording all judicial guarantees which
are generally recognised as indispensable, and (4) other serious
violations of the laws and customs applicable in armed conflicts
not of an international character, within the established framework
of international law, such as intentionally directing attacks against
the civilian population as such or against individual civilians not
taking direct part in hostilities. 17

15
See Article 7 of the Rome Statute

16
https://www.iolaw.org.cn/showNews.aspx?id=24586 (Accessed October 2, 2019)
17
Ibid.
 d. Crimes of Aggression
Crimes of Aggression means the planning, preparation, initiation
or execution, by a person in a position effectively to exercise
control over or to direct the political or military action of a State, of
an act of aggression which, by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United
Nations. It means the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the
United Nations.18

D. Territorial Jurisdiction
Territorial jurisdiction refers to the territory over which the ICC may
exercise its functions and powers. According to the stipulation of Rome
Statute, the ICC may exercise its functions and powers on: (1) the territory
of any State Party. Because when a state becomes a state to Rome
Statute, it thereby accepts the jurisdiction of the ICC, and (2) on the
territory of any other State that has accepted the jurisdiction of the ICC by
special agreement.19

THE PRINCIPLE OF COMPLEMENTARITY

What is Complementarity?
The complementarity principle on which the International Criminal
Court (ICC) is based entails that the ICC can only investigate and
prosecute core international crimes when national jurisdictions are unable
or unwilling to do so genuinely.

Background on the Complementarity Principle

Upon the creation of the Rome Statute of the ICC, a new system was
made to deal with the world’s most egregious crimes: war crimes, crimes
against humanity, and genocide. At the heart of this new system is the idea
that, first and foremost, the courts at the national level should deal with
cases of serious crimes, and the ICC shall only exercise complementary
jurisdiction.

18
See Article 8 of the Rome Statute
19
See Article 4 of the Rome Statute
 Article 1 of the Rome Statute, introduced the concept of
complementary jurisdiction, which provides:

“An International Criminal Court (‘the Court’) is hereby established. It

shall be a permanent institution and shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the Court
shall be governed by the provisions of this Statute.” (emphasis supplied)

There is a clear intention to make the ICC a court of last resort, as the
ICC only deals with cases under very limited conditions. To understand the
idea of complementarity, we have to understand the alternative. The
alternative would have been to allow the ICC to have primary jurisdiction,
which would have meant that the ICC would have been able to deal with
cases whether or not the national authorities were trying to deal with them.
States did not like this alternative, as it meant impairing the sovereignty of
the state.

Why is it important?
There are atleast four reasons for the complementary system:
 1. It protects the accused if they have been prosecuted before national
courts;
2. It respects national sovereignty in the exercise of criminal jurisdiction;
3. It might promote greater efficiency because the ICC cannot deal with
all cases of serious crimes; and
4. It puts the onus on states to do their duty under international and
national law to investigate and prosecute alleged serious crimes.

Of the four reasons abovementioned, the states that negotiated the

treaty were concerned especially with two: sovereignty and efficiency.

States want to control the criminal law system in their own countries,
especially for serious crimes and crimes that have political consequences
or contexts. States, in order to address the inherent inefficiencies in the
operation of ICC (such as distance from victims and crime scenes, witness
protection, victim attendance and participation, and lengths of trials), made
it clear that it would be preferable for trials to take place at the national level
first rather than the international level.

Another reason in favour of national proceedings would be the

chance for national institutions to restore public trust and confidence of the
citizens in the national government.

The Two-Step Process of Complementarity

Everything that falls under the concept of complementarity usually
relates to questions of admissibility: whether or not a case is admissible
before the ICC.

Article 17 of the Rome Statute speaks of the Issue of Admissibility. It

provides three scenarios for finding a case inadmissible:

a) National authorities are already dealing with the same case.

b) National authorities have investigated the same case and
decided not to prosecute.
c) The same case has already been prosecuted at the national
level.

The exception to the admissibility rule herein provided, is if national

authorities are already dealing with the same case, however they are either
unwilling or unable to carry out fair proceedings.
 A challenge of inadmissibility has to be dealt with in a Two-Step
process, which asks slightly different questions depending on which stage
of proceedings the national authorities may be in.

Example:
The state informs the court that it has already investigated the
same case and decided not to prosecute.

One must verify the facts by answering a question in composite

form: Has there been an investigation into the same case AND did
the state decide not to prosecute the suspect?

If the answer to either one of the questions is NO, the ICC case
is ADMISSIBLE.

If the answer to both questions is YES, the next step is to move

an evaluation of whether the stated decided not to prosecute because
of unwillingness or an inability. If the judges determine that the state
decided not to prosecute because it was unwilling or unable, case is
admissible before the ICC.

Conclusion
At its core, the Rome Statute system and the concept of
complementarity present a means for the international community to
ensure that states make genuine efforts to hold perpetrators of serious
crimes accountable, and to step in when states are either unable or
unwilling to do so.