hello everyone and welcome to the first of a two-part series in the topic of international criminal law this event is hosted by the american red cross international humanitarian law program if you are new to the american red cross or would like to learn more about opportunities to get involved with the red cross mission we encourage you to contact your regional american red cross office for volunteer opportunities before we introduce our speaker we just want to remind everyone that during the course of the lecture we ask that you remain on mute and that you use the q a function to ask questions questions will be addressed at the end of the lecture if for any reasons we are unable to get to your questions we will provide these questions to our instructor to discuss in the second class on thursday june 10th at 4 4pm if you have any other questions please contact the email addresses that you will be put in the chat momentarily our instructor for this two-part course is sara ox xerox is an assistant professor of law at the university of louisville louis d brandeis school of law her scholarly research focuses predominantly on the prosecution of mass atrocities before international and hybrid courts and the use of transitional justice mechanisms in post-conflict and settler societies she has presented her work on these topics at numerous conferences throughout the united states and the united kingdom professor ox earned her juris dr sumakum laude from loyalty university new orleans college of law where she served as the editor of the loyal loyola law review and as a member of the law school's william z beast international commercial arbitration moot team following graduation she clerked for the honorable carl j barbier on the u.s district court for the eastern district of louisiana she then practiced civil litigation at simon peregrine smith and redfern llp and subsequently at ackermann llp in new orleans professor ox serves as the co-chair of the aba section of international law's international courts and judicial affairs committee as well as an advisory board member and newsletter editor of the american society of international laws international courts and tribunals interest group she also serves as a volunteer and international humanitarian law instructor for the american red cross kentucky region and is a certified trial monitor with the clooney foundation for justice so with that i'd like to pass over to professor ox and again thank her for being willing to share her expertise and knowledge with all of us professor ox the floor or the digital floor is yours thank you christian and thank you so much for everything you've done to set this up today i'm so excited to be here talking about one of my favorite topics which is international criminal law and i also want to give a huge thank you to all of you who took time out of your day to attend today's presentation so the purpose of my presentation today is to provide an overview of international criminal law with a specific focus on how international criminal law or icl as i will call it there will be a lot of acronyms coming at you over the next hour i'm just warning you um we love a good acronym in international law so how icl is used to enforce violations of international humanitarian law so today's class part one is going to introduce the principles and the foundations of international criminal law as a legal field class number two the second part of the series on thursday will be an overview of the international criminal court which is pretty much the most well-known and um kind of most inaction international criminal court that's functioning at the moment so as a bit of a disclaimer an hour is a very short amount of time to kind of provide an overview of international criminal law so a lot of what i'm telling you is just going to be kind of a 30 000 foot view the generalities of the subject like any field international criminal law is extremely complex so pretty much all of the principles i will be talking about we could spend an hour talking about each one so just keep in mind that what i'm telling you is kind of the tip of the iceberg if you will and with that let's go ahead and dive in hopefully okay so i am going to be using kind of four very general questions to guide today's discussion on international criminal law and the first one is where is ihl international humanitarian law or the laws of war enforced so we're going to lead into this international criminal law discussion through an international humanitarian law lens so to do that i want to start with this really simplistic hypothetical and i'm not lying about simplistic you will see the cartoons one of which i stole from a red cross video so in this hypothetical we have country a and country b who are at war with each other this is a internationally recognized international armed conflict and during the conflict soldiers from country a these guys on the left-hand side of the screen bomb a hospital that is located in country b the hospital provides no military objective and the bombing results in the entire destruction of the hospital property along with the deaths and injuries of hundreds of civilians based on these facts the bombing of hospital b or the hospital in country b is a war crime it is a grave breach of the geneva conventions and it is a serious violation of international of customary international humanitarian law so there's no question that a war crime is committed that the soldiers committed a war crime the big question is however how are we going to punish how is the international community or the domestic domestic state going to punish these soldiers for this war crime and i want to think about this both from the view of geographically where is this going to happen and also the type of entity that is able to prosecute or adjudicate crimes uh against charges for the crimes committed by these soldiers so we have a couple different options here each of these options will apply a slightly different law each has a slightly different source of authority or what i will call jurisdiction the legal term for it the justification they have for being able to prosecute the soldiers and each one of these options will also adjudicate and prosecute the crimes through slightly different processes so option one our first option for prosecuting these soldiers for where they can be prosecuted is domestic courts so somewhat strangely enough domestic courts are actually the most common venues for prosecution of war crimes and our first option within this option is the domestic courts of country b so first the soldiers can be tried in the domestic or state courts of country b where the hospital was actually located country b's domestic courts would have authority to hear the charges against country aid soldiers as under something called territorial jurisdiction and essentially what this means is because the hospital was located on the territory of country b the courts of country b have the power to hear crime committed on its territory in prosecuting and adjudicating the war crime in country b the domestic courts would apply their very own domestic law um this could include commonly recognized crimes like murder or destruction of property it could also involve charges of war crimes under the geneva convention states are required to incorporate legislation to punish and enforce war crimes um or enforce the law of war and to punish war crimes so if country b is a party to the geneva conventions which it likely is then it will have war crime legislation on books and can use this to prosecute these soldiers i'm falling behind on my bullet points here so that's option one of the domestic courts our second option is the domestic courts of country a these courts also have the ability to prosecute of course this is going to be a little bit less likely because the soldiers most likely acted under the authority of their military or governmental officials but country a's domestic courts still have the authority to prosecute soldiers under national jurisdiction which means a court in a country has authority to prosecute the nationals of that country additionally this court would apply country a's national law which could of course incorporate legislation on war crimes so that's option one most likely to use for prosecution is domestic courts however it's not the only option the second option are military tribunals or as we call them in the u.s court marshals these are the courts that are usually staffed by military officials who work as both the judges and the lawyers in the case and they are intended to prosecute members of the armed forces who violate the laws of the military the military code including the law laws of war so in addition to domestic members of the armed forces these military tribunals depending on the law that governs them can also be used to prosecute pows for war crimes under the geneva convention however the pows must be prosecuted pursuant to the same standards uh that are used to prosecute the domestic military officials the law that's applied in these military tribunals is military law the codes that are developed by the military most of which incorporate provisions of the geneva convention so back to our hypothetical our soldiers of country a could be prosecuted before a military tribunal within country a as a domestic member of the military there or they could be prosecuted potentially by a military tribunal in country b if they were captured as prisoners of war and then finally what you guys have mostly probably been waiting for the third option here is that the soldiers could be prosecuted by an international criminal court or a tribunal however this will only happen if the domestic courts and the military tribunals with jurisdiction over the soldiers are either unable or unwilling to prosecute which brings me to a really important point about international criminal law which is that international criminal accords are used as last resorts only they are meant to complement and not supplant or take power away from domestic court's authority so when a state court or a military state military tribunal won't or can't prosecute that's when international criminal courts step in in our case that means the soldiers of country a will only appear before an international tribunal if both the domestic courts and military tribunals and countries a and b are unable or unwilling to prosecute them so the international criminal court that you're most likely familiar with is called the international criminal court another acronym here i will refer to it as the icc this was the permanent court that was created in 2003 to try perpetrators of the crimes that are of the most significance to the international community however as we'll discuss a little later in this presentation the icc is not the only international criminal court there is there are also additional international tribunals that all apply international criminal law so each international criminal tribunal is created uh is governed by a statute uh sometimes they're created by entities like the united nations sometimes they're created by agreements between countries but they always have a statute that establishes power of the court and the law that the court needs to apply and the law that the court will apply the international criminal tribunal will apply is international criminal law which brings us to the next big question in our presentation today which is what is international criminal law and like all four of these questions uh this specific question really is pretty loaded i encompasses several different questions so what is international criminal law where does it come from what does it mean and we're going to go through all of these so i had a i've had a difficult time trying to find a definition of icl there's a lot of different definitions out there but i think that this definition does the best job of summing it up and really highlighting the important principles of icl so what icl is is a field of international law that renders individual criminal liability for the most severe violations of generally recognized international law its goals are very similar to the goals of domestic criminal law so providing accountability and retribution for heinous international crimes working to restore individual victims and victimized communities as a whole and working to prevent future international crimes from happening in this definition there's there's quite a bit to unpack but i'm really going to focus on these two parts which are underlined and the first is that international criminal law one of its foundational principles is that it seeks to hold individuals rather than countries or entities responsible for committing international crimes so in our example a criminal case for the war crimes committed war crime committed by the soldiers of country a would be brought against individuals those soldiers themselves or the people that ordered it rather than country a as a whole and we'll get back to that in just one minute but the reason be reason for this individual criminal liability was really well articulated in the judgment issued by the nuremberg tribunal which is that crimes against international law are committed by men not by abstract entities and only by punishing individuals who commit such crimes can the provision provisions of international law be enforced and another principle that goes hand in hand with this idea of individual criminal responsibility is icl does not provide for governmental or head of state immunity this means that regardless of a person's role in their country's government whether they're an ambassador a military official secretary of state or even the head of state the prime minister or the president they can all be held individually culpable under international criminal law one good example of this is slobinov milosevic he was the former president of serbia during the balkan wars in the 1990s and he's generally viewed as responsible for the genocide of thousands of bosnian muslims he was indicted that he's pictured right here he was indicted and tried before the icty the international criminal tribunal for yugoslavia he'll make another appearance later in our presentation today but this just goes to show it doesn't matter how much power you have in a country you cannot escape punishment under international criminal law if you violate the laws of war or if you violate international law generally okay i want to take about another minute or two to dive into this concept of individual responsibility just a little bit more um when i talk about individual responsibility i'm not just talking about the individuals who actually committed the crime the people who were on the ground utilizing their weapons to engage in whatever war crime whatever bombing whatever war crime that they they committed but that is the first part that is the first people we really look at are the direct perpetrators the people on the ground are often called the direct perpetrators those who carry out war crimes or other unlawful conduct so in our example the direct perpetrators in the hypothetical are going to be those soldiers from country a who actually carried out the bombing of the hospital one thing i want to note here is that oftentimes you will hear about a defense that basically says i was just following orders i had no choice to do whatever horrible thing i did because i was ordered to do it this is a defense that doesn't generally fly in international criminal law uh this traces back to the trials at nuremberg after world war ii the trials of nazi officials generally international courts do not accept this defense except under very rare uh circumstances so just because you were ordered to do something bad and did it does not relieve you of liability under international criminal law however international criminal law doesn't just look at the direct perpetrators instead most of the time international courts are more interested and picking out the big fish so those people higher in the chain of command who are responsible for basically orchestrating whatever international crimes have been committed so let's look one step up the chain of command here up from direct perpetrators the next group of people that can be held individually responsible undercover international criminal law are the superiors who order their support subordinates to engage in unlawful activity and our example for this would be someone like the military sergeant who ordered the soldiers of country a to engage in the bombing again we don't just stop there instead icl looks up even further into the chain of command to the people who essentially were the architects or allowed this unlawful conduct to go on so individual responsibility can extend beyond the people that gave the specific orders for uh the war crime or for whatever international violation and can go up to those with command authority and what this means are these are the military or government officials who knew of their subordinates unlawful actions and fail or should have known of them and failed to stop them and in our situation our hypothetical this could be people in the military or it could be people in the government of country a who were aware of this bombing and allowed it to go ahead go ahead without even stopping it okay this is the most confusing and complex slide i think of my entire presentation um this is a very difficult concept for a lot of lawyers and non-lawyers and law students to really wrap our heads around because the foundations of icl are very different to those of domestic us law so i'm going to kind of walk through this piece by piece but icl unfortunately doesn't have one international criminal law constitution or one big book that holds all of the legislation for international criminal law that would be too easy so instead icl is very much a kind of piecemeal process and i think the easiest way to think about this is that each international criminal court or tribunal that is created like we talked about before has its own governing or establishing statute and this is essentially the legislation that governs the court it sets forth the court's mandate so what the court is expected to accomplish and its funding and its time period for doing so it says for the substantive and procedural law that the court will apply and um a lot of the rules that just govern the court's operations so these statutes are usually pretty lengthy and they include quite a bit um like the elements of the crimes and so on and so forth but like any statute we can't predict every possible thing that will happen in the court um so we need to rely on other sources of law and indeed these are the sources of law from which the provisions of the statute actually originate from in the first place and these sources are first treaties so treaties are essentially agreements that create rights and impose obligations and duties among states you can have bilateral treaties which are treaties between two states or an organization and a state or you can have multilateral treaties which are treaties among a large group of states or a large group of organizations and these are generally the treaties that we deal with in icl some examples of these which which are going to come up a little bit later in the program as well the genocide convention of 1948 the geneva conventions and the two additional protocols and the u.n charter the agreement establishing the united nations so that's the first source of international criminal law the second is this idea of customary international law and these are essentially the laws that are custom the custom that are held by states as a whole by nations as a whole throughout the world so in order for something to be customary international law there must be a general belief among states among countries that this principle is the law and there also must be state practice so these states must have some type of legislation uh judicial decisions military manuals treaties something that shows they actually use this principle reuse and respect this principle as law and then third our third foundation are judicial decisions and learned writings and this is another way that icl really differs from u.s domestic law the first is that in u.s domestic law we have something called starry decisis which essentially means that a court is required to follow its own decisions and the decisions of any higher court on a similar issue we don't have that in icl so that means that any cases any opinions that are issued by other international criminal tribunals or other international courts are not binding on any specific international court however they are persuasive they can be used as basically a starting point uh for a court to render a decision and then finally the last part is learned writings and these are essentially uh articles essays papers by academics by international law experts um and these are given quite a bit of weight in judicial opinions by judges writing international criminal law opinions okay now we got through that complex slide it's it's slow going from here on out all downhill from here uh so our next big question of the presentation is what are international crimes and this basically follows up on the second part of the definition of icl that i gave you all before where it said that icl is only used to prosecute the most severe violations of international laws and in fact because of that icl as a field is very narrow international criminal law only encompasses four general categories of crimes so you have war crimes crimes against humanity genocide and aggression just those four that's it these are the most serious crimes and they often involve significant loss of life and they're just truly heinous atrocities in fact collectively these four categories of crimes are referred to as atrocity crimes as well as the four core crimes of icl so what this means is that international criminal law is really not concerned with prosecuting crimes that are not the worst of the worst or crimes that lack a certain gravity either because of their size or their impact so for instance an international court will generally not prosecute people who engage in a war crime that kills one person instead each of the crimes set forth a very high threshold for proof and generally require that the defendant be responsible for killing a large amount of people or engaging in multiple or repeated violations of international law and another thing to note is the difference between international crimes and transnational crimes so usually when we think of international crimes we think of crimes like drug trafficking or sex trafficking or money laundering across different countries and i actually have had students who have taken my international criminal law course because they thought they were going to learn about those crimes but unfortunately those rhetorically are not international crimes even though they they occur cross across borders they are referred to as transnational crimes in that they transcend national borders international crimes on the other hand don't necessarily need to occur across any border they don't need to occur in multiple countries they also don't require that the perpetrator commit the crime in a different country from from where he is from his country of origin or commit crimes in multiple countries many of the cases before international courts that we'll talk about later in this program were committed by perpetrators in their country of origin and only in their country of origin without crossing any borders instead the international the designation international crime really comes from the crimes impact so international crimes are the crimes that are of most serious concern to the international community whether it's because they could present certain international security risks they could uh promote violence in other areas of the world or they could pose humanitarian crises so i'm gonna spend some time going through each of these four categories of crimes um individually so let's start with the one that most of us are most familiar with which is war crimes and like everything in icl this has a bit of an ambiguous definition but for any crime to be considered a war crime one requirement must be met and that is there must be a nexus to an ongoing armed conflict in order for a crime to be a war crime there must be some type of armed conflict that's ongoing at the time that the crime was committed and the crime must have some type of connection to that armed conflict so generally under ifl war crimes fall within two sub-categories the first is grave breaches of the geneva conventions and grave breaches are defined in each of the four geneva conventions and additional protocol one as the most severe violations of the convention's principles they bestow upon states particular duties with how they enforce and punish violations of these grave breaches um and these are the crimes that are committed against those deemed out of combat so prisoners of war wounded soldiers and civilians these grave breaches i believe there's only about eight of them they include willful killing torture willfully causing great suffering or serious injury extensive destruction of property not justified by military necessity and several others the second category of war crimes that we have are serious violations of customary international humanitarian law and this category goes back to that idea of custom that we were just talking about a few minutes ago it's a little broader in that um it's it's based in customary law it has a it's not confined to the geneva conventions um again this is the customary law that states believe in and that they practice as as their law these types of crimes vary by court but they encompass everything from directing attacks against civilians or other protected people attacking cultural or religious sites using biological or poisonous weapons sex crimes committing outrages upon personal dignity using starvation as a method of warfare constricting children and passing sentences against protected persons without trial or judgment and the list goes on and on so courts including the icc the international criminal court generally distinguish between crimes committed in an international armed conflict and a non-international armed conflict but many of these crimes apply to both types of conflict and an example of war crimes that i have here this picture i'm sure some of you have seen before is of the torture and the abuse of prisoners at abu ghraib by u.s officials and this undeniably this treatment of the prisoners qualifies as a war crime both as a grave breach of the geneva conventions as torture and um under severe violations of customary international humanitarian law as an outrage upon personal dignity so these crimes were not adjudicated or prosecuted before an international court uh they were prosecuted before military tribunals in the u.s 11 soldiers were held criminally responsible but this unfortunately was not an issue that was brought before an international court okay second category of uh of international crimes is genocide the definition of the crime of genocide is much more straightforward than that of war crimes and that's because we have a treaty a well-known treaty for which most of the world is party to that clearly sets forth a definition of genocide and this is the definition that's been utilized by pretty much every international criminal court and tribunal now that's prosecuted the crime and this definition is is on the slide they're these um i'm sorry so genocide is defined as crimes committed with the intent to destroy in whole or in part a national ethnical racial or religious group and these crimes include killing or causing serious bodily slash mental harm to members of the group deliberately inflicting on the group conditions calculated to bring about the group's destruction imposing measures intended to prevent births and forcibly transferring children of a group to a different group um based on this definition as you can probably tell the biggest hurdle with proving the crime of genocide is this intent requirement so not only does the prosecutor have to prove that a defendant engaged in one of these actions they will also have to prove that the defendant engaged in this action with the intent to wipe out an entire group based on their nationality ethnicity religion so on and so forth so genocide um while it might be fairly often tried and charged it's it's fairly rare that we will see a conviction for genocide without very clear evidence of intent and unfortunately there are way too many examples of genocide in history to choose from but one that is currently ongoing is the chinese government's conduct against the uyghur muslims in xinjiang province and this involves the mass detention in internment camps alleged torture and inhumane treatment of the uyghur muslims and many states including the u.s and canada have recognized this treatment as genocide it has not yet come before a court these actions but there are several ongoing investigations unfortunately the international criminal court on a fairly recent judgment found that they do not have jurisdiction to charge crimes related to the genocide of the weaker muslims so it's possible that another criminal court will be created or tasked with adjudicating these crimes category number three are crimes against humanity crimes against humanity are a bit more akin to war crimes and that their definition can vary slightly based on the international court that's enforcing them or adjudicating them unlike the crime of genocide there is no one-size-fits-all treaty for crimes against humanity so there's no one clear universal definition um however the general definitions used are pretty much in line with each other so the definition used by the international criminal court defines crimes against humanity as various acts including murder rape persecution torture apartheid deportation when these acts are committed as part of a widespread and systematic attack against a civilian population so in one way these crimes are a bit broader than war crimes because they don't need to be committed during an armed conflict however they must be committed against civilians no other protected populations and additionally this definition requires that a crime against humanity be more than just an isolated crime so it needs to be a recurring pattern of targeted crimes against civilians it also needs to be systematic which means that there needs to be some type of group or state organization behind the crime and the example that i chose for this is the ongoing treatment of the rohingya muslims in myanmar i'm sure a lot of you are familiar with this myanmar forces and other groups in myanmar have been targeting the rohingya muslims engaging in forcible deportation killing them subjecting them to horrible treatment and um this is actually a case before the international criminal court at the moment it's very narrow because the court only has territorial jurisdiction over the crime of forcible deportation of the rohingya muslims to neighboring bangladesh but it's going to be very interesting to watch this investigation and case unfold at the international criminal court okay our last category of crimes that we have in the four corps crimes is the crime of aggression this crime is very different from the other three and actually before before we get to that i want to make one more comment about these first three crimes as you can probably tell these are very similar the elements and the underlying acts are the same for a lot of these three crimes so it's very common for a prosecutor to charge an individual defendant with multiple crimes arising from the same act so a crime can be a crime can be a war crime and a crime against humanity a crime can be all three genocide war crime and crime against humanity um and generally a prosecutor will kind of throw as many charges as they think they can and see what sticks so back to aggression so this crime really goes hand in hand with the first crime we talked about war crimes war crimes are the crimes that are committed actually during an armed conflict so that's called the euston bellow while aggression is the event that generally kicks off or starts an armed conflict or the use at bella so armed force using armed force or let's back up to the definition of aggression that's uh utilized by the icc aggression is the unlawful use of armed force by one state against another state and the this usually means an attack an invasion an occupation something that basically invades the territory of another for a military reason so armed force this definition focuses on the unlawful use of armed force and indeed the united nations charter basically outlaws the use of force when it's not used for several exceptions and one of these is that it's not used in self-defense it's not authorized by the security u.n security council or it's not consented to by the state upon which the attack is conducted or another exception is that it's not used for humanitarian purposes so this means that if an attack or an invasion does not fall within one of those three or four exceptions then it's deemed unlawful and it can be rendered a crime of aggression the crime of aggression can only be used to prosecute persons with control to direct the political or military action of a state which generally limits prosecution of the crime for the crime of aggression to like the tippy top uh commanders the commanders in chief uh the heads of state this is the newest crime to be recognized by the international criminal court the definition was just added to uh the court statute a few years ago so no one has yet to be prosecuted under it but the example of the crime of aggression that i chose here was the assassination of kasam suleimani by the trump administration back in january 2020 i was thinking of an example and this seemed like it happened decades ago but it was about a year and a half ago which is crazy um but for those of you who don't remember soleimani was the iranian major general of the goods force which roughly translates to like the head of the iranian cia and he was assassinated under the trump administration at the time there was a lot of debate over whether the assassination was lawful or whether it could be considered a crime of aggression um there was no court no court has heard it has not been resolved but it was an interesting debate president trump um said that he had ordered the assassination basically in preemptive self-defense he knew that kassam suleimani was organizing attacks on the united states and he basically got to him first in order to protect united states citizens and civilians and the legitimacy of this defense is a little bit up in the air but it provided quite a vigorous academic debate i will say okay so we've made it to question four which is good because i see we only have a couple minutes left so i'll try to run through this last part fairly quickly but this question is what international criminal courts are out there you've heard me talking about the international criminal court quite a bit but i said that's not the end-all be-all there are other entities and this question also gives us an opportunity for a brief review or historical overview of international criminal law so like ihl icl has origins that trace back centuries and centuries but compared to most fields of law it's fairly new it really didn't have you know its birth or its official start until after world war ii with the creation of the nuremberg and tokyo tribunals so as the world was creating the united nations they were also figuring out what exactly to do with the nazis who survived the war how they would be punished how they would be treated and this was the first time that the idea of an international criminal tribunal had been um really given much weight it was the first creation of such a court and there's a number of reasons for this i mean the difficulties of creating a universal world court is they're pretty much insurmountable um each state has vastly different laws different legal systems different approaches to retribution um and different just processes for dealing with uh adjudicating crimes so the fact that all of these countries were able to get together and and create these tribunals really really speaks uh to the way of their desire to prosecute these crimes so starting with the nuremberg tribunal the first kind of international type of tribute criminal tribunal it was established by agreement by the allied powers through a treaty that was executed in 1945. the official name of the court was the international military tribunal at nuremberg it was based in nuremberg germany and it was operated by the four primary allied powers france soviet union the uk and the us so all the judges came from those four countries um and as well as the prosecutors our u.s chief prosecutor was actually supreme court justice robert jackson in the first round of the nuremberg trials the tribunal focused on kind of those big fish as i said before the really high ranking officials of the nazi party who survived so here we have a picture of hermann goring he was the founder of the gestapo and the highest ranking nazi to survive the war which shows that they really went over when it went after kind of the biggest fish the people that were most in charge for the crimes committed by the nazis by the nazis um you can see the statistics here the tribunal tried 24 defendants seven were sentenced to prison time they sentenced 12 to death which was which is fairly unusual for an international court um it's not done anymore but it was a it was really pushed for by the united states given our stance on capital punishment um and the death sentence was allowed both for nuremberg and at the tokyo tribunal which we'll talk about next um the tribunal tried crimes against humanity and as well as war crimes and they also tried something called crimes against the peace which can basically be analogized to the crime of aggression today the tokyo tribunal was the next tribunal given the success that nuremberg enjoyed um the tokyo tribunal was kind of a logical extension of this it was called the international military tribunal for the far east unlike the nuremberg tribunal it was created by proclamation by american general douglas macarthur who following the war was placed in charge of the japanese government again all of the judges and prosecutors came from the allied nations similarly to nuremberg the tribunal went after the big fish you can see here this was um the prime minister of japan during the time of the war charges included war crimes crimes against humanity and crimes against the peace as well they had 28 defendants tried um seven death sentences six life sentences so again fairly good statistics here and in addition both the tokyo and nuremberg tribunals really were instrumental in developing jurisprudence regarding international criminal law i mean they were the first written issued opinions on international criminal law subs subjects and they were really instrumental um like any international tribunal they did sustain some criticism one of the biggest things being that these tribunals were basically based in victor's justice essentially the winners of the war the allied powers were prosecuting their enemies for the same acts that they engaged in during the war and they were getting off scot-free this is usual this is a big theme that comes up quite a bit in international criminal law throughout history and through today so the second generation of international criminal tribunals came with the ad hoc tribunals in 19 in the 1990s so after nuremberg and tokyo there was kind of a lull in international criminal law nearly 50 years passed with little progress being made in the fields however in the 1990s there were two huge sets of atrocities that occurred in very different geographical areas the first occurred in the balkans uh with a series of civil wars that ultimately escalated into the genocide of bosnian muslims the second occurred in 1994 in rwanda in which ethnic hutu forces overtook control of the country and uh decimated i believe 800 000 ethnic tootsies between the months of april and july so in response to both of these atrocities the un security council viewed this views these ongoing atrocities as violence that could pose a serious threat to international stability and they passed resolutions creating two distinct or ad hoc as needed criminal courts to prosecute the people that were most responsible for these atrocities one was set up to prosecute the balkan genocide one was set up to prosecute the rwandan genocide each one had a temporary mandate meaning that it was only supposed to be around for a few years they had a set budget and each one had its own statute i know i'm going a little bit over but i'm almost done i promise um so just a brief couple of comments on the icty or the first ad hoc tribunal which is the international criminal tribunal for the former yugoslavia another acronym um this court was really interesting as the first ad hoc court it was purely international all the lawyers and judges were international none of them came from the former yugoslavian states it sat in the hague in the netherlands it was the first international criminal court to convict a defendant of genocide and it was the first to indict a sitting head of state slobodan milosevic who we talked about earlier he unfortunately died before his trial was concluded but the fact that he was indicted and charged was in and of itself a huge success like the nuremberg tribunals the icty contributed significantly to international criminal law jurisprudence it indicted 161 individuals as you can see and it also sentenced 90 which is a very good statistics the ictr or the international criminal tribunal for rwanda had a very similar setup to the icty it was funded and staffed by international sources entirely um unlike the icty the rwandan court faced a really serious hurdle which was that rwanda refused to support the court it actually voted against the u.n security council resolution that created the ictr because it was adamant that the court imposed the death penalty which at that point was no longer on the table in international courts and as a result the court was not located in rwanda it was located in neighboring tanzania arusha and it faced significant issues in obtaining witnesses and obtaining evidence um it faced a lot of a lot of hardship with kind of its investigations without that state cooperation however it's still indicted 93 people uh sentence 62 was the first uh court to address the issue of war crimes in a non-international armed conflict and it again was instrumental to jurisprudence both the rwandan and the yugoslavian tribunals are officially concluded they've shut their doors but both are subject to a residual mechanism which is still ongoing and basically set up to finish off some appeals and basically handle the wrapping up of the quartz and then finally we have hybrid tribunals my personal favorite type of international court these were created in response to the kind of criticisms of the ad hocs as i mentioned both of the ad hoc tribunals were very international they really had no local involvement the hybrids sought to combine the best of both worlds by providing international capacity and legitimacy with local involvement so generally in a hybrid tribunal or a hybrid criminal court the court is based in the state where the atrocities were committed it staffs both international and local judges and prosecutors and staff and administration um it's is they're theoretically cheaper than ad hoc tribunals and they also apply a mix of international criminal law as substance for substantive crimes as well as domestic criminal law so they're very interesting um they've been used in a number of countries east timor sierra leone cambodia lebanon kosovo which just started and a lot of them are still ongoing they're still being created so that's an alternative to the other current international court which is the permanent international criminal court uh i'll all i will tell you about this is that it sits in the hague it hears charges falling within all four categories of those core crimes and i will leave the rest for next time since class number two is really going to be a deep dive into the international criminal court um and then just last but not least i think that christian shared i haven't seen the chat but i believe that my email was shared in the chat i think we have a couple minutes to answer for me to answer questions if you have any but if there's anything that i touched on in this presentation today that you'd like to talk through more or that you have questions about honestly please feel free to email me i'm happy to talk about this stuff and i hope that you will uh consider attending on thursday again same time introduction to the international criminal court so thank you all for listening and i will close down my powerpoint well thank you so much uh sarah i really appreciate that i'm having some trouble with my video for some reason and maybe it will pop up in a second but there are some questions in the chat eric and i addressed some of them but there are some open ones that we'd like to carry on with you and some of them you kind of touched on but maybe you could go into a further explanation on it so the first question we have is say you have two individuals and they're the cro the things that they committed would fall under some type of international criminal the rome statute or the rome treaty i should say um and they're acquitted in country a or country b or in their country can they be retried and if so you know what what would be needed for that to happen without violating you know principles of of law that protect against double jeopardy et cetera so generally no if they are tried in a domestic court for a war crime or for a crime related to an act they will not be retried in an international court and this is something we'll get into a little bit more um next on thursday with the idea of complementarity but essentially the only way that those soldiers can again be tried in the icc is if it's found that those try if they were the trials that they were subject to that those were sham trials or that they were just basically conducted for appearance sake there wasn't a punishment um but unless if it was a legitimate real trial they will not be able to be tried again in the icc all right and i i think the the second question on our list it kind of touches on that about um you know shame trials and bad faith the next one would be uh with questions about uh diplomatic immunity uh when is diplomatic immunity you know not allowed or i guess um so the question exactly is what about diplomats with community are they still protected from prosecution um as individuals and that that's how i took the question no they are not protected um again each international court can kind of adopt its own rules and how they handle issues of immunity and amnesties and pardons and things like that but generally under international criminal law there is no immunity they will they will not allow immunity for heads of state or for diplomats if they commit a crime that's considered to fall within the categories the four categories of core crimes they are subject to prosecution uh by international courts all right thank you and then the next question is going to be touching on um i think more of elements of crimes but uh the second part of the question is what i'll be asking so how do you account for uh human error um you know and it's specifically i guess what i think about is like the man's raya portion of a criminal act yeah so i mean this is really up to the prosecutor and their investigation i mean um as you can tell and as you will see when we talk about the icc the prosecutor does not she does not choose her cases kind of willy-nilly she will pick the cases that she thinks are the strongest the defendants who she thinks really intended to commit the crime that they are being prosecuted for and she will do a thorough investigation but um again this kind of falls into the specific elements of war crimes uh there does need to be an intent to commit the crime uh so if if they just hit a civilian by accident it's unlikely that they will be subject to prosecution um however it is it's going to be very case specific i'm not sure if that really answers your question i'm happy to talk uh through that more by email if you would like yeah i i think what you're really getting at is you know the need for some type of mental culpability right right um so the next question i think is actually very interesting maybe you can give us your opinion as an ico scholar but how are the cyber crimes we are currently seeing being viewed in terms of ico i know this most likely touches outside of ihl but just an international criminal in general what's the discussion going on there yeah so um there is quite a bit of discussion going on to be honest i haven't haven't been following it too closely because it kind of falls outside of my area um but currently it's not really something that's ever come before any of the international courts um definitely not the icc but i think kind of as we move forward and as we see these cyber crimes kind of occurring more and more often i think it's something that's absolutely going to to be a big talking point in the sphere of icl oh all right sorry i can't really answer that too well no no that's fine um the next question um you touched on about who sets up a a new tribunal in court um i guess uh [Music] so i i guess what i would i'll break this down question and make it more specific so if the united nations security council sets up a court who is in contro who isn't is the united nations uh security council in charge of setting those jurisdictional limits of that court or is there some type of body or committee that address the jurisdictional limits who drafts the duty for example yeah usually even if the u.n security council creates a court through a security council resolution generally they will appoint people from the states that are going to be involved in operating the court they will appoint legal experts and lawyers and practitioners from those states and those will be the people that are responsible uh for drafting the statute which sets forth kind of the jurisdiction and the mandate and all of the other requirements for the court all right and then the next one i think is just a great question about the principles of you know criminal law in general so say someone is from country a but they're arrested for an international crime that that took place maybe between a war between country and country b uh what is the the principle of law that you know assures them the same rights of a citizen of you know country b um even though they're not a citizen there uh is that the correct statement that they would be insured those uh constitutional rights are let's say for example yeah i mean that that certainly comes down to kind of the the laws of that specific state however the geneva conventions do require that if someone is captured as a prisoner of war for instance if they're captured as a prisoner or a war then they need to be subject to the same um same trial the same procedures that a state national in that state would receive if they are arrested um kind of like they just stepped stepped into the country after the war had concluded then that's something i believe that would fall within the country's um domestic like constitutional law all right and then the next question i'll just it's the comment was i thought rwanda used tribunals locally also called the trials of forgiveness i believe they're speaking more about uh i believe those good gotcha courts i hope i hope that i'm getting my correct uh kinder wonder there but um can you maybe just discuss the difference between the uh the international criminal tribunal for the for rwanda and those good kasha courts are is there a difference yeah there is i'm actually uh really glad this question came up because it kind of brings me into another topic i'm pretty passionate about um but i call them gakako and i don't know if that's the correct pronunciation either i'm guessing not um but whoever asked that they're entirely right in addition to the ictr the rwandan tribunal rwanda also had a number of these kakako courts which were basically um local courts that prosecuted the lower level participants in the genocide so those who weren't viewed as kind of the architects of the genocide but who played a small role or a play i don't want to say small role to discredit you know their role but who engaged in massacres and engaged in the genocide in some way these courts were more focused on community and healing than they were on applying kind of strict international or strict criminal laws um and they were really they had a focus kind of grounded in what's called transitional justice which was kind of a way for the community as a whole the country as a whole to really regroup recover and come together share their stories share their experiences um and so they were a lot less kind of formal um a lot of them occurred like in the grass in fields um rather than an actual courthouses they weren't operated by official judges all of the time so they were much less informal uh much more run by the people and they gave kind of the people who were actually affected an opportunity to engage in the justice process which was lacking in the ictr so you had these two different um judicial mechanisms kind of ongoing at the same time all right and then let me see i'm trying to go through this this listen it keeps moving up for me is there a connection between the icc and the un secure i believe u.n security council oh yeah there is a big connection between the icc and the u.n security council um we'll talk about that a little bit more on thursday uh but one thing i will say is there there is a close relationship between the two but the icc itself is not a product of the u.n so the united nations did not create the icc yet the statute that governs the icc provides a very close relationship between the security council and the court itself the security council is allowed to refer cases to the court and has kind of some say in what the court what cases the court hears but again i'll save that a little bit more for thursday all right um just some historical questions um but i'm not going to get to those i apologize but please feel free to use those emails in the chat everyone uh to email questions we're not able to get through or even if there's questions that you needed a more thorough answer on them i'm personally always willing any question is is fine or discussion um so i think i'll have one more question if you have time okay so this is an interesting question and who is in charge of following through with the terms of the sentence so let's say that someone is tried at the icc i i guess maybe they would be interested in knowing is uh who's in charge uh in that person sentenced to 50 years uh is there a specific prison or is there a specific country that would be responsible for holding those people in custody for the length of their sentence yeah so again this varies by the court so for something like the hybrid courts generally all of those defendants if they're convicted are going to be held uh by the prisons in the country where the court is actually operating um the icc is a bit different they do have kind of a holding center in the hague um where they keep the defendants kind of up i believe up to and during their trial after their trial and following their conviction these defendants will basically be kind of shipped out to a prison in one of the state parties so one of the states that signed on to the rome statute one of the one of the countries that's a member of the icc as part of their agreement they agree to house defendants once they're convicted so i'm not entirely sure how the court decides which defendant goes to which country but generally they are held in a prison in one of the state parties geographic areas all right well thank you very much again everyone i want to thank you for attending our next session is going to be on thursday at 4 pm eastern u.s time again if you did have any questions that we weren't able to get to or you wanted to have a further discourse uh please feel free to contact myself uh eric schmitz at the american red cross or our instructor sarah sarah thank you so much and i'm looking forward to thursday yes thank you and thank you all for attending i will see you thursday thank you bye