Development Of International Criminal Law And Tribunals Research Paper

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This research paper offers a brief reconstruction of the development of International Criminal Law (ICL) and an equally brief description of the existing International Criminal Tribunals and Courts. The former part will be divided into two sections: starting with the Versailles Peace Treaty and historical precedents, the Nuremberg and Tokyo trials are looked at as the first stage of the development, focusing on international conflicts. The establishment of the UN ad hoc Tribunals in the 1990s accompanied by the development of ICL for non-international conflicts constitutes the second stage. The third stage, i.e., the response of ICL to transnational terrorism after 11 September 2001, will not be covered by this outline. The description of the existing tribunals starts with the UN ad hoc Tribunals for the former Yugoslavia and Rwanda, continues with a more detailed characterization of the International Criminal Court, and finishes with the so-called mixed or hybrid tribunals.

The Versailles Peace Treaty And Historical Precedents

Crimes against the basic principles of humanity are nothing new to the history of mankind. The crusades of the eleventh century may be considered as early forms of genocide. Other examples of international crimes are the Spanish and Portuguese Conquista of the Americas accompanied by the extermination of great numbers of the native population, the massacre of thousands of the French Huguenots during St. Bartholomew’s night 23 August 1572, and the massacre of Glen Coe in the year 1692. In all these cases, investigations never took place, and criminal sentences were never passed on the responsible persons except in the case of Peter von Hagenbach in the year 1474 (Cryer 2005, pp. 17 ff.).

At the beginning of the nineteenth century, the punishability of piracy was acknowledged under customary international law. Also, slavery was declared a crime of international concern due to numerous international treaties, which had been concluded since 1815 (Bassiouni 1999, pp. 305 ff.). Notwithstanding, the proposal of the president of the International Committee of the Red Cross (ICRC), Gustave Moynier, to set up an International Criminal Court (ICC) after the GermanFrench War in 1870/1871 remained without any political resonance (Ko¨ nig 2003, p. 60).

When the Allied and Associated Powers convened the 1919 Preliminary Peace Conference, the first international investigative commission was established, and the Versailles Peace Treaty was adopted. This treaty established a new policy of prosecuting war criminals of the vanquished aggressor state after the end of the hostilities. The legal basis of that policy was laid down in 1919 in the Paris Peace Treaties which created four groups of offences: crimes against the sanctity of the treaties, crimes against the international morals (which were not defined more precisely; Puttkamer 1949, p. 424), war crimes “in a narrow sense” (i.e., “violation of the laws and customs of war” according to Art. 228 of the Versailles treaty), and violations of the laws of humanity. The latter was not included in the Versailles treaty since the USA took the view that it could not be sufficiently precisely defined and thus was too vague as a basis for prosecutions (Bassiouni 1999, p. 65). At the same time, with the Versailles treaty, the individual criminal responsibility for crimes against international law was for the first time recognized on a treaty basis. It was further recognized that such responsibility had no limits of rank or position.

In 1920, the Allied Powers decided to hand over the prosecution to Germany, which passed new legislation to be able to prosecute German suspects before its own Supreme Court (the Reichsgericht), sitting at Leipzig. However, only 12 Germans were prosecuted for war crimes (Ahlbrecht 1999, pp. 42 ff.). Thus, the so-called Leipzig Trials have been considered a failure and are widely cited as proof of the German unwillingness to seriously prosecute their own war criminals.

In international law, the term “crimes against humanity” was for the first time used in the context of the genocide of the Armenians, which led to a joint declaration of France, Great Britain, and Russia on 24 May 1915, asserting that all members of the Ottoman Government and those of its agents found to be involved in those massacres would be held personally responsible for the crimes. Prosecuted on the basis of the Turkish penal code, several ministers of the wartime cabinet and leaders of the Ittihad party were found guilty by a court martial of “the organization and execution of crime of massacre” (Schabas 2009, p. 25). At the international level, the Peace Treaty of Se`vres, signed on 10 August 1920 between the Ottoman Empire and the Allies (France, Italy, Japan, UK), in many aspects similar to the Treaty of Versailles, contained, as a major innovation, offences which were later qualified as crimes against humanity (Article 230). The treaty, however, never took effect. It was replaced by the Treaty of Lausanne of 24 July 1923, which included a “Declaration of Amnesty” for all offences committed between 1 August 1914 and 20 November 1922.

The First Ad Hoc Tribunals: Nuremberg And Tokyo

During World War II, the prosecution of “war crimes” became a primary objective. In 1942, the Allied Powers signed a declaration in St. James Palace in London, which established the UN War Crimes Commission (UNWCC). We will return to it below. The “Declaration of St. James” also laid down the foundation for the International Military Tribunal (IMT). This was followed by the Moscow Declaration of 30 October 1943, which confirmed the Allied quest for prosecution. Finally, the “Declaration of London” of 8 August 1945 – concluded by the governments of Great Britain, USA, France, and the Soviet Union – gave birth to the IMT.

The first series of World War II trials, the Nuremberg trials, took place under the terms of a charter drafted in London between June and August 1945 by representatives of the USA, Great Britain, Soviet Union, and France. It was therefore called the “London” or “Nuremberg Charter”. The Nuremberg Charter contained three categories of offences: crimes against peace, war crimes, and crimes against humanity. As to the defenses, Article 7 rejected official position and Article 8 superior orders as grounds for excluding responsibility. The Allies set up the IMT to prosecute the “Major War Criminals”. Twenty-three defendants were initially charged and 19 convicted (Engelhart 2004, p. 734 ff.).

The Tokyo Trials were based on the charter for the Far East, or Tokyo Charter, which was proclaimed on 19 January 1946. The charter was, unlike the London Charter, not part of a treaty or an agreement among the Allies. Representatives of the Allied nations, which had been involved in the struggle in Asia (the USA, Great Britain, France, Soviet Union, Australia, Canada, China, the Netherlands, New Zealand, India, and the Philippines), created the IMT for the Far East (IMTFE). It was composed of judges, prosecutors, and other staff from the Allied nations. The IMTFE recognized the same offences as the IMT: crimes against peace (as defined in the London Charter); “conventional war crimes, namely, violations of the laws or customs of war”; and crimes against humanity. The definition of crimes against humanity differed from that of the IMT Charter in two ways: first, the IMTFE Charter expanded the list of crimes to include imprisonment, torture, and rape. Second, it eliminated the requirement that “crimes against humanity” had to be connected to war. As to possible defenses, the charter excluded – as did the IMT Charter – official position or superior orders. The prosecution selected 28 defendants; 25 were convicted (Osten 2003).

Post Nuremberg World War Ii Trials

The Nuremberg and Tokyo Trials were followed by a second series of prosecutions of Nazi leaders, pursuant to Control Council Law (CCL) No. 10. The most famous proceedings were the 12 trials before the US-American court in Nuremberg. Other important cases have been documented by the United Nations War Crimes Commission (UNWCC 1947–1949). It was formally established on 20 October 1943, and its task was basically twofold: on the one hand, to investigate war crimes, collect evidence, and identify those responsible and, on the other, to inform the Allied governments about the cases providing a sufficient basis for prosecution. In total, the UNWCC documented 89 war crimes trials on the basis of protocols of 2111 proceedings (Ambos 2002/2004, p. 140).

The proceedings instituted by the occupation powers ended a few years after the end of the war. However, the prosecutions of Nazi criminals have continued in and outside Germany until today. The most famous cases on the basis of universal jurisdiction were the trials against Adolf Eichmann (ILR 1968, pp. 5–14) and Klaus Barbie (Le Monde 5–6 July 1987, p. 1). The former was sentenced to death by the Jerusalem District Court on 15 December 1961, and the latter was first tried in absentia for war crimes and sentenced to death by the Tribunal Permanent des Forces Arme´es de Lyon in two judgements and later in presence sentenced to life imprisonment on 4 July 1987 for crimes against humanity. After having served 4 years of his sentence, Barbie died of leukemia in 1991. Other cases include that of Paul Touvier (ILR 1995, 338 ff., 357 ff.) in France, sentenced to life imprisonment before a Cour d’Appel de Paris in Versailles, France (20 April 1994), and that of Imre Finta (ILR 1995, 520 ff.) in Canada, finally acquitted by the Supreme Court (24 March 1994). Last but not least, John Demjanjuk was sentenced to 5 years imprisonment on 15 May 2011 but released pending an appeal; he died on 17 March 2012.

The principles resulting from the practical experience of the IMT were an important substructure for the upcoming development of ICL. The International Law Commission (ILC), founded in 1947 upon the recommendation of the Committee on the Progressive Development of International Law and its Codification (CPDIL), adopted seven principles on its second session in 1950 (ILC 1950, pp. 374 ff.). Those principles in conjunction with the Nuremberg Charter, the CCL 10, and the adjudication of the Nuremberg courts are called the “Nuremberg Principles.” They comprise rules on the general part (Principles I–IV, VI, and VII), on international crimes (VI), and on a procedural “fair-trial” norm (V).

The Development Of International Criminal Law Prior To The Establishment Of The UN Ad Hoc Tribunals

The Genocide Convention

Based on thoughts by Rafael Lemkin (1933, p. 117), Resolution 96 was adopted by the UN General Assembly on 11 December 1946. It declared genocide to be a crime of international concern and formed the basis for the drafting of a treaty by a group of experts. The Genocide Convention was adopted by the GA on 9 December 1948 and came into force on 12 January 1951. It is the most vital legal instrument on the crime of genocide (Schabas 2009, pp. 3 ff.).

The Hague And Geneva Law

First efforts to establish a “law of war” can be traced back to the middle of the nineteenth century focusing primarily on the humanization of war, first with regard to the admissible means and methods of warfare (so-called Hague Law) and then later increasingly with regard to the protection of the victims of armed conflict (so-called Geneva Law). While the Hague and Geneva laws regulate the situation of an armed conflict, i.e., the ius in bello, the law governing the resort to force is called ius ad bellum (MacCoubrey and White 1992, p. 217).

The Hague Law was developed in two Hague Peace Conferences of 1899 and 1907. Since then, it has been amended and updated by various conventions, including by the 1977 First Protocol Additional (PA) to the 1949 Geneva Conventions (GC), and contains some “Hague elements.” In substance, the Hague Conventions provide for three important principles still valid until today (Bailey 1972, p. 63): first, the Martens Clause according to which, notwithstanding the absence of specific regulations, “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience” (cf. Preamble of the 1907 Hague Convention (IV)); second, the right to injure “the enemy is not unlimited” (Article 22 of the annexed Regulations of the 1899 and 1907 Hague Conventions II and IV); and third, the prohibition “[t]o employ arms, projectiles, or material of a nature to cause superfluous injury” (Art. 23 (e) 1899 Convention) or “calculated to cause unnecessary suffering” (Art. 23 (e) 1907 Convention).

The Geneva Law emerged from the Geneva Conventions of 1864, 1906, 1929, and 1949. It deals with the protection of noncombatants (civilians) and former combatants who are no longer willing or able to fight. The (modern) Geneva Law consists of the four Geneva Conventions (GC I–IV) of 12 August 1949 and the three Additional Protocols (AP I, II, III) of 18 June 1977 (AP I and II) and 8 December 2005 (AP III), respectively. This body of law constitutes the modern International Humanitarian Law (IHL) (Sassoli and Bouvier 2006, Part I, Ch. 3, pp. 121 ff.). Penal provisions can be found in the conventions that apply in the case of an international (armed) conflict (GC I–IV and AP I), while AP II contains no penal provisions whatsoever. This distinction reflects the traditional “two-box approach” differentiating between an international and a non-international armed conflict. It has been overcome with the seminal interlocutory decision of the Tadic Appeals Chamber (IT-94–1-AR 72) of the International Criminal Tribunal for the former Yugoslavia (ICTY) holding that IHL, in particular common Article 3 GC I–IV, provides for penal prohibitions in the case of a non-international conflict under certain conditions (para. 88 ff.).

As to the grave breaches regime, Articles 49 GC I, 50 GC II, 129 GC III, and 146 GC IV oblige the state parties to penalize conduct amounting to a grave breach of the GC, while Articles 50 GC I, 51 GC II, 130 GC III, and 147 GC IV contain the acts covered. The state parties have either to prosecute these acts before national courts or extradite those responsible to another state party (aut dedere aut iudicare). It is controversial whether the “grave breaches” norms provide for direct individual criminal responsibility given that they are only addressed to the state parties, obliging them to enact the respective penal prohibitions and ensure criminal prosecution. More detailed provisions concerning individual criminal responsibility can be found in AP I. Articles 86 and 87 AP I provide for command or superior responsibility. The superior may be liable for a failure to prevent crimes committed by his subordinates. In subjective terms at least a kind of negligence is necessary.

With regard to grounds excluding responsibility in general, the Geneva Law rejects the exclusion of criminal responsibility pursuant to a superior order implicitly. The recourse to military necessity is only possible in exceptional cases, namely, if the actions taken were necessary and proportional. This will rarely be the case if international crimes are committed. The reprisal defense was declared entirely unacceptable with a view to the protection of certain groups and objects (Prosecutor v. Martic, IT-95–11-R 61, 8.3.1996, para. 8 ff., 15 ff; Kupresˇkic et al. judgement, No. IT-95–16-T, 14.1.2000).

The Geneva Law also recognizes, at least partially, the principles of legality and culpability. Article 67 GC IV recognizes on the one hand the prohibition of retroactivity (nullum crimen sine lege praevia); on the other hand, it links the penalty to the offence thereby taking up the sentencing element of the principle of culpability (the punishment must conform to the actual culpability of the convicted person; see also Article 68 GC IV).

The Draft Codes Of The International Law Commission And Private Initiatives

In 1947 the ILC was assigned to prepare a “Draft Code of Offences/Crimes against the Peace and Security of Mankind.” The first Draft Code was adopted in the sixth session in 1954 (Draft Code 1954), which is composed of only four articles containing provisions on the general part and some criminal offences. After a definition of aggression was agreed upon by the GA in 1974, the ILC was again instructed to draft a code in 1981. The second Draft Code was adopted in 1991 (Draft Code 1991) and included provision concerning the general part and 12 offences, some of which show the political nature of the Draft Code 1991 (Articles 15–26). The third Draft Code of 1996 basically rests upon the Draft Code of 1991. Great changes were undertaken in the special part, particularly by a sharp reduction of the former 12 offences to only 5: aggression, genocide, crimes against humanity, war crimes, and crimes against the UN and associated personnel. Apart from the last crime, this is exactly the catalogue of offences which was later included in the ICC Statute as the so-called core crimes. Prior to the 1996 Draft Code, in 1994, the ILC had submitted a Draft Statute for an International Criminal Code (Ambos 2002/2004, pp. 444 ff.).

The various unofficial proposals for the development of ICL law may be subdivided into substantive law “Draft Codes” and procedural law “Draft Statutes.” The most influential unofficial proposals have been the drafts of the Association Internationale de Droit Pe´nal (AIDP/ ISISC/MPI 1995/1996) and of the International Law Association (Ambos 2002/2004, pp. 475 ff.) (ILA 1988).

The UN Ad Hoc Tribunals

The International Criminal Tribunal For The Former Yugoslavia

In reaction to massive violations of IHL and human rights in the former Yugoslavia beginning in 1991, the UN established the “United Nations Commission of Experts Pursuant to Security Council Resolution 780,” which led to the establishment of the ICTY by the Security Council on 25 May 1993 (UN Doc. S/RES/827). The court was established as a subsidiary body of the Security Council according to Article 29 of the UN Charter. While the work of the court was initially supposed to last until the reestablishment of peace and security in the former Yugoslavia, the Security Council has in the meantime set up a so-called (first) completion strategy that fixed a time limit of 31 December 2004 for the end of investigations, 31 December 2008 for the end of trials of the first instance, and 31 December 2010 for the end of trials on appeal. On 22 December 2010, the Security Council adopted Resolution 1966 (2010) establishing the International Residual Mechanism for Criminal Tribunals with two branches, one for the ICTY and one for the ICTR; they commenced to operate on 1 July 2013 and 1 July 2012, respectively (UN SC-Res. 10141). According to the latest completion strategy, the tribunal continues its downsizing process (ICTY President 2012). All trials are expected to be completed by mid-2012, except for the case of Radovan Karadzˇic´, which is expected to be completed in late 2013. Most appellate work is scheduled to be finished by the end of 2014 (ICTY President 2012). As of 19 November 2012, the ICTY has indicted 161 persons and concluded proceedings against 128 persons.

The ICTY Statute (ICTYS) contains 34 articles dealing with questions of substantive law (Articles 2–7, 24 ICTYS), procedural law (Articles 1, 8–10, 18–23, 25–30 ICTYS), as well as the organization of the tribunal (Articles 11–17, 31–34 ICTYS). Besides the Statute itself, several other legal instruments such as the Rules of Procedure and Evidence (RPE) have been adopted by the tribunal. It is composed of different chambers – the three Trial Chambers and the Appeals Chamber – the Office of the Prosecutor (OTP), and the Registry (Article 11 ICTYS). The chambers have 16 permanent judges and up to 12 so-called ad litem judges (Article 12(1) ICTYS) or ad hoc judges who can be appointed by the secretary general upon request of the President of the Tribunal (cf. Article 13ter, and quarter ICTYS). The OTP – though formally part of the tribunal – shall act independently as a separate organ (Article 16 ICTYS). The Registry “serves” both the chambers and the Prosecutor (Article 11(c) ICTYS). One of its functions (Article 17 ICTYS) is also the setting up of an adequate defense for the accused, including the assigning and payment of council.

The tribunal’s jurisdiction extends to all (natural) persons responsible for serious violations of IHL committed in the territory of the former Yugoslavia since 1991 (Articles 1, 6 ICTYS). According to Articles 2–5 of the ICTYS, the tribunal exercises jurisdiction ratione materiae over grave breaches of the four Geneva Conventions, violations of the laws, or customs of war, genocide, and crimes against humanity. The rule on individual criminal responsibility is provided for in Article 7 (1) ICTYS. It includes three groups of perpetrators: the politically responsible official person, the (military) superior, and the (committing) subordinate. Superior/ command responsibility is laid down in Article 7 (3) ICTYS. Neither the official position of the accused nor the action pursuant to an order shall relieve a person from criminal responsibility (Article 7 (2), (4) ICTYS), but this fact may be considered in mitigation of punishment if the tribunal determines “that justice so requires” (Article 7 (4) ICTYS).

The International Criminal Tribunal For Rwanda

The International Criminal Tribunal for Rwanda (ICTR) was established by Security Council Resolution 955 of 8 November 1994. The Statute of the ICTR (ICTRS) resembles largely the one of the ICTY. Judges from both tribunals are assigned to the Appeals Chamber of both tribunals (Article 13 (3) ICTRS, Article 14 (4) ICTYS). The members of the Appeals Chamber of the ICTY shall also serve as the members of the Appeals Chamber of the ICTR (Article 13 (4) ICTYS).

The competence of the ICTR embraces the prosecution of serious IHL violations committed in the territory of Rwanda and by Rwandan citizens in the territory of neighboring states between 1 January 1994 and 31 December 1994 (Article 1 ICTRS). The ICTR exercises jurisdiction, similar to the ICTY, over genocide, crimes against humanity, and internal armed conflict crimes. Just like the ICTY, the ICTR introduced a first draft for a completion strategy in 2003, which has been continuously updated and developed since then. The latest report was submitted on 14 November 2012. The tribunal’s president informed that “[a]s at 5 November 2012, the Tribunal has completed its work at the trial level with respect to 92 of the 93 accused. [.. .] The one remaining trial judgement will be delivered before the end of 2012, and appellate proceedings have been concluded in respect of 44 persons. The remaining appeals are projected to be completed by the end of 2014” (ICTR President 2012, Para. 3). As already mentioned above, the ICTR will then, like the ICTY, be transferred into the Residual Mechanism, which started operating on 1 July 2012.

The International Criminal Court

Negotiating History

In 1994 the UN General Assembly (GA) referred the ILC-Draft Statute to the “Ad Hoc Committee on the Establishment of an ICC.” This committee presented a final report after two sessions in 1995. Then, the Preparatory Committee (PrepCom), established by the GA just after the 1995 report, took over. Its task was to prepare a draft for the Rome Conference to be held in 1998. The PrepCom held altogether six meetings from 25 March 1996 until 3 April 1998. Between the sessions, more or less formal meetings by states and delegations of states took place in order to smoothen out possible points of conflict before the actual sessions. In one of those “intersessionals,” the important Zutphen Report was compiled (Sadat Wexler and Bassiouni 1998, pp. 7 ff., 129 ff.).

On 15 December 1997, the GA decided to arrange a State Conference for the establishment of the ICC in Rome (UN GA-Res 52/160). The conference was not only open to states but also for nongovernmental organizations (NGO). It commenced on 15 June 1998 and ended on 17 July 1998 with the adoption of the ICC Statute. One hundred fifty-nine governmental delegations and 250 delegations of NGOs which had merged into the “Coalition for an ICC” attended the conference. Until the cessation of the conference, it was not entirely clear whether the ultimate goal – namely, the adoption of an ICC Statute – could be reached due to the opposition of important states. However, after intense negotiations, the conference adopted the court’s Statute by a vote of 120 in favor to 7 against (USA, China, Libya, Israel, Iraq, Qatar, and Yemen), with 21 abstentions. A non-recorded vote was requested by the United States.

The Statute entered into force on 1 July 2002 after the deposit of the 60th instrument of ratification (cf. Article 126). Until the Statute was closed for signature on 31 December 2000, 139 states had signed, and as of 21 July 2012, 121 states had ratified it. Following the Rome Conference, a Preparatory Commission (PrepCommis) was first established in order to compile further legal instruments and to prepare the first meeting of the Assembly of State Parties (ASP). In addition, a working group on the crime of aggression was set up in order to reach a consensus on the definition and the conditions of jurisdiction pursuant to Article 5 (2) ICC Statute (on the final agreement see below).

The Rome Statute, The Structure Of The Court, And Other Legal Instruments


The ICC Statute consists of 13 parts and 128 articles. The ICC was established as a permanent institution in The Hague (Articles 1, 3). While it is not an organ of the UN, it is linked to the latter by a “relationship agreement” (Article 2). The court is made up of a Presidency, a Pre-Trial Chamber (PTC), a Trial Chamber (TC) and an Appeals Chamber (AC), an Office of the Prosecutor (OTP), and a Registry (Article 34). Although the defense is not an organ of the court, an Office of Public Counsel was set up at the Registry (Regulation 77 of the Regulations of the Court).

The Judges

The judges are elected from two lists (Article 36 (5)): list A shall consist of candidates with established competence in criminal law and procedures and the necessary relevant experience. List B shall consist of candidates with established competence in relevant areas of international law, such as IHL and human rights law, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the court. Especially the List B requirements are increasingly criticized for allowing diplomats without criminal trial experience to become ICC judges (Bohlander 2009, pp. 532 ff.; Ambos 2012a, pp. 224 ff). In addition, the candidates shall be of “high moral character, impartiality and integrity” and “possess the qualifications of their national law for appointment to the highest judicial offices” (Article 36 (3)(a) ICC Statute). They must be fluent in English or French (Article 36 (3)(c)). The judges shall be selected by lot to serve 3, 6, or 9 years (Article 36 (9)(b)). Only the judges elected for a term of 3 years are eligible for reelection (Article 36 (9)(c)). Judicial impartiality shall be secured by not engaging in any other occupation of professional nature. The judges shall represent the main legal systems of the world. On 10 September 2004, the ASP adopted a resolution on the “Procedure for the Nomination and Election of Judges of the International Criminal Court” (ICC-ASP/3/Res.6), providing for rules for the nomination and election of the judges. However, the respective “Advisory Committee on Nominations” of the ASP (Article 36 (4)(c) ICC Statute) has not yet been established. Updated information on the judges and chambers can be found at http://

The Office Of The Prosecutor

The OTP shall act independently and as a separate organ of the court. Its first head was the Argentinean Luis Moreno Ocampo – he is “The Prosecutor” (cf. Article 42). He was elected on 21 April 2003 and took office on 16 June 2003. The ASP also elected two deputy prosecutors, Mr. Serge Brammertz (Investigations) and Mrs. Fatou Bensouda (Prosecutions). After Brammertz’ leave to Lebanon in January 2006 (before assuming the Office of Chief Prosecutor of the ICTY in January 2008), only Fatou Bensouda from Gambia stayed on as deputy prosecutor. On 1 February 2011, Phakiso Mochochoko from Lesotho was appointed as Head of the Jurisdiction, Complementarity, and Cooperation Division. The actual power now resides in an Executive Committee, composed of the prosecutor, the deputy prosecutor, and the heads of the different sections (JCCD, Investigation, and Prosecution) and supported by some external consultants. Moreno Ocampo’s mandate expired in June 2012. Deputy Prosecutor Bensouda was elected unanimously as his successor on 12 December 2011 at the ASP’s tenth session. She took office on 16 June 2012.

The OTP concluded several agreements with other organizations and persons, i.e., with the International Criminal Police Organization (Interpol) or so-called intermediaries (Ambos 2011a, p. 329 fn. 123). It cooperates with the UN by virtue of the UN-ICC agreement and the MONUC-Memorandum of the ICC.

Registry And Assembly Of States Parties

The Registry is responsible for the administration and servicing of the court and is headed by the Registrar (Silvana Arbia, Italy, successor of Bruno Cathala, France). It consists of the Immediate Office of the Registrar, the Security and Safety Section, the Common Administrative Services Division, the Division of Court Services, Public Information, the Documentation Section, and the Division of Victims and Counsel (Lachowska 2009, p. 389).

The Assembly of States Parties (Article 112) is composed primarily of representatives of the states that have ratified and acceded to the Rome Statute. Other states, which have signed the Statute or the Final Act, may be observers in the Assembly (Article 112 (1)). The ASP is supposed to meet annually and can be seen as the decision-making organ of the court. It decides on various issues, such as the interpretation/application of the Statute, the adoption of legal texts and of the budget, and the election of the judges, the prosecutor, and the deputy prosecutor(s). Any dispute between two or more States Parties relating to the interpretation or application of the Statute shall be referred to the ASP. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that court (Article 119 (2)). The ASP shall also supervise the State Parties’ compliance with their cooperation obligations under the Statute (Article 112 (2)(f) in relation to Article 87 (5) (b) and (7)). It is the only enforcement organ of the Rome system in this respect, unless the UN Security Council has referred a situation to the court (Article 87 (5)(b) in fine).

Legal Sources

Apart from the Statute itself, the two most important secondary legal sources of the ICC are the Elements of Crimes and the Rules of Procedure and Evidence, which were agreed on in the fifth session of the PrepCommis and were finally adopted in the first session of the ASP. In accordance with Article 9 ICC Statute, the Elements of Crimes shall assist the court in the interpretation and application of the core crimes (Articles 6, 7, 8, and 8bis). They are a subsidiary source, have to be consistent with the Statute (Article 9 (3)), and are subject to legal interpretation of the court. The Rules of Procedure and Evidence (RPE) complement the procedural regime of the Statute and have to be consistent with it (Article 51 (4)). In the event of conflict, the latter shall prevail (Article 51 (5)). They do not affect the procedural rules for any national court or legal system for the purpose of national proceedings.

On 26 May 2004, the judges adopted the Regulations of the Court (Article 52). The regulations were developed to fulfill the goal of speedy trials and to secure a fair trial for the accused. Regulations of the Registry and of the OTP were adopted on 3 March 2006 and 23 April 2009, respectively. Another legal source is the Agreement on Privileges and Immunities (Article 48) which grants certain immunities and privileges to the judges, the prosecutor and its staff, the Registrar and its staff, as well as to counsels, experts, witnesses, or any other person required to be present at the seat of the court. Other legal sources are inter alia: the Code of Professional Conduct for Counsel, the Code of Judicial Ethics, the agreement between the International Criminal Court and the United Nations, and the agreement with the EU on cooperation and assistance.

The First Review Conference In Kampala

The first Review Conference took place in Kampala, Uganda, from 31 May to 11 June 2010, a year later than envisaged by Article 121. ICC States Parties, observer states, international organizations, NGOs, and other participants discussed proposed amendments to the Rome Statute and took stock of its impact to date. Debates focused on the impact on victims and affected communities, complementarity, cooperation, and peace and justice. Apart from these general discussions, the conference took three concrete decisions: most importantly, the crime of aggression was defined (Art. 8bis Statute), and the conditions for the exercise of jurisdiction were agreed upon (Arts. 15bis, 15ter; Ambos 2011b). Further, the deletion of Article 124 was rejected, and the war crimes of Article 8 (2)(b) (xvii) to (xix) were extended to a noninternational armed conflict (Article 8 (2)(e) (xiii) to (xv) Ambos 2011a, p. 125).

Current Investigations

The OTP first initiated investigations mid-2004 with regard to two situations. One was the situation in Uganda closely connected with the activities of the so-called Lord’s Resistance Army (LRA); the other one concerns crimes committed on the territory of the Democratic Republic of Congo (DRC) since 1 July 2002. In both situations, the respective governments made use of the possibility of a state referral in accordance with Article 13 (a), 14 ICC Statute. In June 2004 (DRC) and July 2004 (Uganda), the OTP determined that there is a reasonable basis to open a formal investigation into the situations (Article 53 (1)). On 21 December 2004, the Central African Republic (CAR) referred a situation to the ICC and requested an investigation by the OTP into the crimes committed on its territory since 1 July 2002. The OTP opened investigations on 22 May 2007. On 13 July 2012, Mali has self-referred a further situation to the ICC through the use of Article 14 ICC Statute.

On 16 January 2013, the OTP formally opened an investigation into the alleged crimes, committed on the territory of Mali since January 2012.

While in all these situations, the court’s jurisdiction was triggered by state self-referrals under Article 13 (a), 14 of the Statute, two other situations have been referred to the court by the Security Council pursuant to Article 13 (b), namely, Darfur (Sudan; Resolution 1593 of 31 March 2005) and Libya (Res. 1970 of 26 February 2011). The Darfur investigation was formally opened in June 2005. In the Libyan situation, the prosecutor announced very quickly, on 3 March 2011, that he will open a formal investigation. Last but not least, with regard to Kenya, the prosecutor acted for the first time proprio motu pursuant to Articles 13 (c) and 15. On 31 March 2010, Pre-Trial Chamber II authorized the prosecutor to open the investigation pursuant to Article 15 (4) with regard to crimes against humanity committed between 1 June 2005 and 26 November 2009.

Apart from these formal trigger mechanisms, Article 12 (3) offers non-States Parties the possibility to accept the jurisdiction of the court by a kind of ad hoc declaration “with respect to the crime in question.” So far, this provision has been invoked in two cases. First, on 15 February 2005, Ivory Coast accepted the jurisdiction of the ICC with respect to alleged crimes committed from 19

September 2002, which was renewed by both the former President Laurent Gbagbo and current President Alassane Ouattara. On 3 October 2011, Pre-Trial Chamber III authorized the prosecutor to open an investigation into war crimes and crimes against humanity allegedly committed following the presidential election of 28

November 2010. On 22 February 2012, this authorization was expanded to include crimes allegedly committed between 19 September 2002 and 28 November 2010. Secondly, on 22 January 2009, the Palestinian National Authority lodged a declaration with regard to acts committed on the territory of Palestine since 1 July 2002, especially during the 2008/2009 Gaza war.

If an investigation is formally opened, several cases arise from the respective situation, persons are targeted, and, if they do not voluntarily surrender to the court, arrest warrants are issued. So far, arrest warrants have been issued regarding the situations in Uganda (five arrest warrants issued, one case terminated because of the death of the suspect), Dafur/Sudan (five), DRC (seven, of which five have been executed), Libya (three, one case terminated), CAR (one issued and executed), and Coˆ te d’Ivoire (two issued and one executed). Thus, only seven arrest warrants have been executed so far. Trials started against Jean-Pierre Bemba Gombo, Thomas Lubanga Dyilo, Germain Katanga, and Mathieu Ngudjolo Chui. The first judgement was delivered on 14 March 2012 in the Lubanga case (Ambos 2012b). On 10 July 2012, Lubanga was sentenced to a total period of 14 years of imprisonment. On 18 December 2012, Mathieu Ngudjolo Chui was found not guilty of the charges brought against him. In other cases summons to appear have been considered sufficient, and the suspects appeared voluntarily before the court, i.e., in the case of Abu Garda, a member of the Sudanese Janjawid militia (ICC-02/05-02/09- 2), Banda Abakaer Nourain (ICC-02/05-03/09-3) and Mohammed Jerbo Jamus (ICC-02/05-03/09- 2) and with regard to the so-called Ocampo six (Prosecutor v. Kirimimuthaura et al. ICC-01/09-02/11-01, Samoeiruto et al. ICC-01/09-01/11-01).

The “Mixed” Tribunals

The Legal Bases

As a result of the increasing internationalization of the prosecution of serious human rights violations, many so-called mixed or hybrid tribunals have been established in several states. These tribunals have a mixed national-international legal basis and recruit national and international (foreign) prosecutors and judges. The tribunals are either part of a transitional UN administration (Kosovo, East Timor), or based on a bilateral agreement with the UN (Sierra Leone, Cambodia, Lebanon), or on legislative provisions adopted by an occupying power (Iraq). A purely national tribunal for international crimes was created in Bangladesh.

Kosovo And East Timor

Following the armed conflict between Serb authorities and the Kosovo Liberation Army, Kosovo was placed under the interim administration of the UN on 10 June 1999. The competence of the transitional UN administration (UNMIK) in Kosovo for “maintaining civil law and order” and the representation by a Special Representative of the Secretary-General (SRSG) derive from SC-Res. 1244 (6) and (11 (i)). On this basis numerous “regulations” and “administrative directions” have been enacted in order to define the applicable law (Bohlander 2003, pp. 24 ff.). As a result, the Provisional Institutions of Self-Government (PISG) were established, including a government, a president, a parliament, and a court system. As to criminal justice, there exist three instances for the adjudication of crimes of international concern. The attempt to set up a special tribunal (“Kosovo War Crimes and Ethnic Crimes Court”) failed; instead, international prosecutors and judges were assigned to all district courts in a 2:1 proportion (two international, one local judge). The court system includes a constitutional court, a supreme court, five district courts, a commercial court, 25 municipal courts, 25 minor offence courts, and an appellate court for minor offences. Shortly before the declaration of independence by Kosovo on 17 February 2008, the European Union Rule of Law Mission in Kosovo (EULEX) was established in February 2008 to “monitor, mentor, and advise Kosovo institutions in all areas related to the rule of law and to investigate, prosecute, adjudicate, and enforce certain categories of serious crimes” (Article 3(a) and (d) of the Council Joint Action 2008/124/CFSP). Through EULEX, 31 international judges and 15 international prosecutors support local judges and prosecutors. There is one state public prosecutor’s office, five district prosecutors’ offices, and seven municipal prosecutors’ offices. EULEX exercises its executive authority over a special prosecutor’s office, which includes eight international prosecutors, and focuses on serious crimes including human trafficking, money laundering, war crimes, and terrorism.

In East Timor – in accordance with SC-Res. 1272 (1999) of 25 October 1999 – the “United Nations Mission in East Timor” (UNTAET) had overall responsibility for the administration of East Timor and was empowered to exercise all legislative and executive authority, including the administration of justice. The organization of the courts in East Timor was reorganized, and at the same time, panels with exclusive jurisdiction over serious criminal offences (genocide, war crimes, crimes against humanity, murder, sexual offences, and torture) were established within the District Court in Dili. The panels had exclusive jurisdiction only for offences committed in the period between 1 January 1999 and 25 October 1999 and operated until 20 May 2005. Moreover, within the Office of the General Prosecutor, there was a “Special Prosecutor” called the Deputy General Prosecutor for Serious Crimes, who headed the Serious Crimes Unit (Othman 2003, pp. 87 ff.). After the independence on 20 May 2002, the laws launched by UNTAET remained in effect, and the judges have been appointed by the Supreme Council of the Judiciary of East Timor (von Braun 2008, pp. 137 ff.). In 2005, the mandate of the Serious Crimes Unit expired, and its investigative functions were resumed by the Serious Crimes Investigation Team, assisting the Office of the Prosecutor-General of East Timor. Until the expiration of its mandate, the Serious Crimes Unit had indicted 391 people. While 84 defendants were convicted, three were acquitted in trials before the special panels, and more than 300 indictees remained at large, almost all of them in Indonesia.

Sierra Leone

In SC-Res. 1315 (2000), the Security Council asked the UN-Secretary General to negotiate an agreement with the Government of Sierra Leone to create an independent court to prosecute persons responsible for the commission of serious violations of IHL and crimes committed under Sierra Leonean law during the country’s civil war. On 16 January 2002, such an agreement, accompanied by a Statute of the Special Court for Sierra Leone (SCSLS), was signed (Kelsall 2009, pp. 254 ff.). Thus, the court is based upon a bilateral, international law agreement between an international organization and a state and not solely upon a UN SC Resolution. It has the power to prosecute persons who bear the greatest responsibility for serious violations of IHL and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996 (Article 1 SCSLS). This covers precisely crimes against humanity, war crimes, certain other international crimes, and certain crimes under Sierra Leonean law (Articles 2–5 SCSLS). The Special Court and the national courts shall have concurrent jurisdiction. The Special Court shall have primacy over the national courts of Sierra Leone and may at any stage of the procedure request a national court to defer to its competence in accordance with the SCSLS and the Rules of Procedure and Evidence (Article 8 SCSLS). In 2003, the prosecutor issued 13 indictments, of which two were withdrawn due to the deaths of the accused in December 2003. Thus far, the trials of three former leaders of the Armed Forces Revolutionary Council (AFRC), of two members of the Civil Defense Forces (CDF), and of three former leaders of the Revolutionary United Front (RUF) have been completed, including appeals. On 31 October 2009, the Special Court’s eight convicted people were transferred to Mpanga Prison, Rwanda for sentence enforcement. The judgement against former Liberian President Charles Taylor was rendered on 26 April 2012. In a unanimous judgement (the “dissenting opinion” of the alternate Judge El Hadji Malick Sow from Senegal, expressed after the verdict had been delivered, does not count as a vote), Taylor was found guilty on all accounts of aiding and abetting the RUF and AFRC rebel groups and/or Liberian fighters operating in Sierra Leone and of having planned attacks on civilians. On 30 May 2012, he was sentenced to a term of 50 years imprisonment. Upon the delivery of the final judgment in the Charles Taylor case, the Special Court’s mandate will be complete and the SCSL closes. However, many of its legal obligations will not terminate with the conclusion of all cases. In August 2010, the United Nations and the Government of Sierra Leone agreed to establish a Residual Special Court for Sierra Leone, which will be responsible for fulfilling the Special Court’s obligations. The RSCSL Agreement and the RSCSL Statute were ratified by the Parliament of Sierra Leone in December 2011. The RSCSL shall, pursuant to Article 1.1 of its Statute: “[.. .] maintain, preserve and manage its archives, including the archives of the Special Court; provide for witness and victim protection and support; respond to requests for access to evidence by national prosecution authorities; supervise enforcement of sentences; review convictions and acquittals; conduct contempt of court proceedings; provide defence counsel and legal aid for the conduct of proceedings before the Residual Special Court; respond to requests from national authorities with respect to claims for compensation; and prevent double jeopardy.” At the beginning of 2012, the Registrar established the Residual Special Court for Sierra Leone Transition Working Group in order to coordinate work relating to the transition to RSCSL and closure of the Special Court (SCSL Ninth Annual Report 2011-2012, p. 7). The RSCSL will have its interim seat in The Hague and an office in Sierra Leone. It will be headed by a president (chosen by RSCSL judges), a prosecutor and a registrar.


In Cambodia, after long-lasting negotiations, a bilateral agreement with the UN was signed on 06 June 2003 “concerning the prosecution in Cambodian law of crimes committed during the period of Democratic Kampuchea” (during the period from 17 April 1975 to 6 January 1979). Parallel to the negotiations with the UN, a “Law on the Establishment of the Extraordinary Chambers” was prepared in order to prosecute these crimes by national institutions. The law was first adopted on 10 August 2001 and later amended (ECCCLaw). The extraordinary chambers have the power to bring trials against suspects who committed genocide, crimes against humanity, grave breaches of the Geneva Conventions, as well as certain other enumerated international and national crimes (Articles 2–8 ECCC-Law). The chambers are established within the existing court structure; they operate as a court of first instance, the Supreme Court being an appellate court and final instance (Kashyap 2003, pp. 192 ff.).

The extraordinary chambers are unique in structure and composition. The Trial Chamber is composed of five professional judges, of whom three are Cambodian (with one as president) and two foreign (Article 9 (1) ECCC-Law). The Appeals Chamber is composed of seven judges, of whom four are Cambodian (with one as president) and three foreign (Article 9 (2) ECCCLaw). While the courts in East Timor and Sierra Leone take their decisions with a simple majority, in the ECCC national judges dominate and a supermajority (a simple majority plus one) is necessary (Article 14 ECCC-Law). The judges agreed on rules of procedure on 12 June 2007.

Personal jurisdiction is limited since only the senior leaders of Democratic Kampuchea and those who were most responsible shall be brought to trial. Those leaders are former heads of the Khmer Rouge (Heder and Tittemore 2004). In Case 001, Kaing Guek Eav alias Duch was sentenced – after an appeal by the co-prosecutors – to life imprisonment. In Case 002, the trial against Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith began on 27 June 2011. On 4 March 2013, Ieng Sary died in hospital from natural causes, as the Co-Prosecutors announced on 2 April 2013. On 7 September 2009, the international coprosecutor filed two Introductory Submissions, requesting the co-investigating judges to initiate investigation of five additional suspected persons. These two submissions have been divided into what is known as Case files 003 and 004.


The Iraqi Special Tribunal was established by the US Coalition Provisional Authority; its Statute was issued on 10 December 2003 by the Iraqi Governing Council and approved on 18 October 2005 by the first freely elected Parliament. The name of the court was changed to the “Iraqi Higher Criminal Court,” which is now financed exclusively by the Iraqi government. The tribunal is not part of the regular Iraqi judicial system but an autonomous organ with its own rules and an own administrative capacity. The tribunal has jurisdiction over any Iraqi national or resident of Iraq accused of the core crimes (Articles 11–13,) committed since 17 July 1968 (takeover of the Ba’ath party) and up until and including 1 May 2003 (official ending of acts of war) in the territory of the Republic of Iraq, or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the state of Kuwait (Article 1(b)). Moreover, the tribunal has the power to prosecute certain violations of Iraqi laws (Article 14). The tribunal consists of the Tribunal Investigative Judges, one or more Trial Chambers, and an Appeals Chamber (Article 3). The Statute resembles the ICC Statute in its substantive law and procedural law provisions.

Besides former president Saddam Hussein (who was sentenced to death on 5 November 2006 and executed on 30 December 2006), several high-ranking Iraqi officials were tried, among others in the following cases: the Al-Dujail case against eight accused, which started on 19 October 2005 (all eight convicted, four sentenced to death – one after appeal – 3–15 years imprisonment, and one defendant was acquitted), and the Al-Anfal case, which started on 24 June 2007, against members of the former Ba’th regime (three sentenced to death, two to life imprisonment, and one acquitted). The third trial started in August 2007, relating to the brutal crushing of a Shiite rebellion in 1991 (three of the defendants were acquitted, four were sentenced to life imprisonment, six were given a long prison sentence, and two were sentenced to death). The fourth trial dealt with the execution of 42 merchants who were accused of raising their prices during the period when UN sanctions had been imposed against Iraq (two defendants were sentenced to death, one to life, 3–15 years and 1–6 years imprisonment, one defendant was acquitted). Further proceedings were initiated in the following cases: against 14 accused (inter alia against Ali Hassan al-Majid, Hashim Hassan alMajid, Tarik Aziz Issa, members of the former Ba’th regime, and of the militia) for the deportation and forced movement of families in 1984. The indictment was issued on 4 November 2008, and the judgement was rendered on 2 August 2009. In another case, an indictment was issued against 14 persons (inter alia against the former minister for the interior Sadun Shaker) for the killing and forced displacement of Falili-Kurds. The judgement was rendered on 29 November 2010. Furthermore, in the Al Jeboor case, four accused were found guilty of crimes against humanity.

Lebanon And Bangladesh

The Special Tribunal for Lebanon (STL) was created by SC-Res. 1757 (2007) of 30 May 2007. The provisions of the document annexed to it, and the Statute of the Special Tribunal thereto attached, entered into force on 10 June 2007. The STL is based in The Hague and is neither a subsidiary organ of the UN nor is it a part of the Lebanese court system. Rather, it supersedes the national courts within its jurisdiction (Article 4 (1)). It is a hybrid court in the sense that it is composed of both national and international judges. The STL is unique in that the applicable law is national in character, while the ICTY and ICTR are limited to prosecuting crimes in violation of international law and the (other) hybrid tribunals prosecute crimes under both domestic and international law. In addition, the STL is the first UN-assisted tribunal to combine substantial elements of both a common law and a civil law legal system (U.N. Doc. S/2006/893).

According to Article 1 of the Statute of the Special Tribunal for Lebanon (STL), “[T]he Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafic Hariri and in the death or injury of other persons.” However, the temporal jurisdiction was extended to include other attacks bearing the same, or similar, characteristics of the Hariri assassination (U.N. Doc. S/2006/893). As to the substantive law, the Statute stipulates that the tribunal shall apply provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism (a crime that so far has not been within the province of an international tribunal) and crimes and offences against life and personal integrity, among others. Following an indictment by former prosecutor Daniel Bellemare on 17 January 2011, on 30 June 2011, the tribunal issued four arrest warrants that have not been executed so far. The STL’s first case is The Prosecutor v. Ayyash, Badreddine, Oneissi and Sabra. In this case, which awaits completion of the pre-trial phase, the Prosecutor accuses Ayyash, Badreddine, Oneissi and Sabra of criminal responsibility for the attack that killed former Lebanese Prime Minister Rafik Hariri and others on 14 February 2005 (STL President 2012-2013, p. 7). On 1 February 2012, the Trial Chamber had made an order for trial in absentia, which was confirmed by the Appeals Chamber on 1 November 2012 (STL President 2012-2013, p. 10). On 19 July 2012, the Pre-Trial Judge set 25 March 2013 as a tentative date for trial to start. However, many procedural problems, including incomplete disclosure and technical issues faced by the Defence in accessing certain disclosed material, caused the Pre-Trial Judge to postpone the commencement of trial (STL President 2012-2013, pp. 7, 9).

The jurisdiction of the Bangladesh Tribunal includes crimes against humanity, crimes against peace, genocide, war crimes, and “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” and “any other crimes under international law” Article 3 (2) (a)-(f) International Crimes (Tribunals) Act 1973 (ICTA). Common law and customary international law are treated as primary sources of law, and the tribunal resembles the existing tribunals, albeit it conducts a purely domestic process (Linton 2001, pp. 221 ff.). On 20 November 2011, the first person was charged (Delwar Hossain Sayedee, a leader of Jamaat-eIslami, an Islamist party opposed s Bangladesh’s independence). Subsequently, the charges were “framed” (i.e., confirmed) by the tribunal. Further, the chief investigator Abdul Hannan Khan carries out investigations against 10 other suspects, including another six members of the Jamaat and two of the Bangladesh Nationalist Party. Apart from Sayedee, charges have been filed against Maulana Matiur Rahman Nizami, Ali Ahsan Mohammad Mujahid, Abdul Kader Mollah, Abdul Alim, Muhammad Kamaruzzaman, and Salahuddin Quader Chowdhury. Charges were framed against Kamaruzzaman on 4 June 2012 (the trial started on 2 July 2012), Nizami and Mollah on 28 May 2012, and Chowdhury on 4 April 2012.

Comparative Analysis

All these tribunals can be characterized as “mixed” not only because of their composition but also because of their organization, structure, and the applicable law. The tribunals apply national and international law. While there was first, in line with the ICTY and ICTR precedent, a certain preference for the common law system, in particular in terms of the applicable procedure, the ECCC introduced an inquisitoriallike French procedure, and the STL, as the first UN tribunal, combines elements of both legal systems.

It is common to all tribunals (with the exception of the STL) that they are situated in the state where the crimes of their subject matter jurisdiction took place. Thereby, a certain proximity to the local, crime-affected population is ensured. Either the tribunals are part of the local justice system (Kosovo, East Timor, Cambodia) or though special tribunals, somehow affiliated with the national system (Sierra Leone, Iraq, Lebanon). Contrary to the ICTY and ICTR, which have had no less than 15 years to terminate their proceedings, the mixed tribunals have a significantly shorter time period to conclude their work. For instance, the SCSL originally had only 3 years to fulfill its mandate. The problems become even more apparent if one looks at the organizational problems and the tight resources compared to the high operative cost they are bound to combat. Their budgets are remarkably lower than the ones of the ad hoc tribunals.

The crimes falling within the subject matter jurisdiction of the mixed tribunals are the core crimes genocide, crimes against humanity, and war crimes. The elements of the crime of these core crimes are related to the ICC Statute, but war crimes are in the majority of cases not as detailed codified as in Article 8 ICC Statute. In addition, all tribunals apply specific violations of national law depending on the situation: in East Timor, torture was added as an offence; in Kosovo incitement to national, racial, religious, or ethnic hatred, discord or intolerance ((1) of Regulation 4 (2000)), the illegal possession of weapons ((8) of Regulation 7 (2001)), and unauthorized border crossing ((3) of Regulation 10 (2001)) are criminal offences; in Cambodia, the destruction of cultural property during armed conflict can be prosecuted; in Sierra Leone, offences relating to the abuse of girls and setting fire to dwelling houses were included; and in Iraq, the wastage of national resources is a violation, and the STL even applies exclusively national law. Furthermore, in Sierra Leone, adolescents between 15 and 18 years old can be brought to trial (Article 7 SCSLS).

The existence of extrajudicial mechanisms for dispute resolution, for instance, through truth and reconciliation commissions (Bassiouni 2003, pp. 711 ff.), leads to concurrent jurisdictions or at least entails difficulties of delimitation. In Sierra Leone, overlapping jurisdiction was meant to be avoided by prosecution of only the persons most responsible by the Special Court itself, basically leaving child and adolescents to the competence of the truth commission. The legitimacy of the Iraqi Court has been highly criticized from the outset due to its establishment by the US occupying power and its legal source (Megally and Zyl 2003). While the acceptance of the court by the Iraqi people may indeed be questioned, this fact is not an anomaly but lies at the heart of an international criminal justice system dominated by ad hoc tribunals. In fact, in this respect, all these tribunals face a dilemma: on the one hand, the national judiciary is generally not able and very often unwilling to carry out proceedings for internationalized core crimes; on the other hand, the “internationalization” of the courts and procedures gives rise to a deficit in its legitimacy in relation to the local population.


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