International Criminal Law and International Human Rights Law are common sources of law to hold individuals accountable for committing certain international crimes. As these crimes usually entail human rights violations, it is important for human rights defenders to have a sound understanding of how International Criminal and Human Rights Law works. It is important for all human rights defenders, including those with no formal legal qualifications, to receive basic training. in these areas of the law. This guide presents some basic principles of International Criminal Law, but includes links to useful resources for further information and training.

What is International Criminal Law?

International Criminal Law punishes individuals responsible for committing certain crimes, such as war crimes, crimes against humanity and genocide. Usually, states can only prosecute crimes committed within their jurisdiction through their own domestic justice system. However, states can agree to subject their own citizens to justice by other forums through the state’s signing of international treaties. States do so because they recognize that they have an interest in preventing international crimes, which can be a threat to world peace despite the fact that these crimes are often committed within national borders.

International Criminal Law vs International Human Rights Law

An act may be both an international crime and a violation of international human rights law. However, a distinction has to be drawn between the two even though they often overlap. While international criminal law punishes responsible individuals, international human rights law imposes obligations on states to provide and safeguard the rights of individuals living within their borders. The differences between the two are summarized in the table below.

International Criminal Law

International Human Rights Law

Remedy

Perpetrator being prosecuted

States have an obligation to ensure that there is a remedy for the victim. If a state fails to provide such, the victim may seek redress from the state

Forum

Domestic or international court

UN Commission of Inquiry, UN Human Rights Council, other UN committees

Standard of proof

High: Beyond reasonable doubt

(evidence has to be collected and preserved in a way to ensure its reliability)

Moderate: Reasonable grounds to believe that the alleged incidents occurred

Where is International Criminal Law Applied?

1. International Criminal Court

The ICC is the main forum applying International Criminal Law. It was established by the Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute). The Rome Statute governs the jurisdiction and functioning of the ICC.

The ICC does not have jurisdiction to prosecute every individual who commits an international crime: Article 5 of the Rome Statute limits jurisdiction to the following crimes: (i) genocide, (ii) crimes against humanity; (iii) war crimes and (iv) crime of aggression*Article 6 to 8 contain the elements of genocide, crimes against humanity and war crimes respectively. A more detailed guide on proving the elements of these three crimes can be found here. These elements, along with other ‘legal requirements’, have to be fulfilled in order to facilitate prosecution. See the guide on “what constitutes a crime and mode of liability in international crimes”.

*For the crime of aggression, ICC has jurisdiction once a provision is adopted in accordance with Article 121. Article 123 defines the crime and setting out the conditions under which the ICC shall exercise jurisdiction with respect to this crime.

 

Articles 12, 13 and 14 together set out the conditions for ICC to exercise its jurisdiction. There are two situations where the ICC can exercise its jurisdiction.

Situation 1

  1. State X is a party to the Rome Statute OR has accepted ICC’s jurisdiction with respect to the crime in question by declaration lodged with the Registrar
  2. State X is the place where the alleged crime occurred AND the accused is a State X national
  3. A State Party has referred the situation to the Prosecutor OR the Prosecutor has initiated an investigation

Situation 2

The UN Security Council has referred the situation to the Prosecutor

 

2. International tribunals

Special tribunals may be created by the UN Security Council to deal with specific crimes within a particular territory for a certain period of time. There are currently 5 international tribunals in existence:

3. Hybrid courts

Created within a state’s criminal justice system, hybrid courts apply both domestic law and international law. These courts are generally set up in the post-conflict or transition period to address past crimes. For example, this model was used in the post-war Bosnia Herzegovina.

4. Domestic courts

To prosecute international crimes in domestic courts, states generally have to pass new laws which allow such prosecution within a domestic system.

Reference

Morgane Landel. “Training Guide: International Criminal Law for Syrian Human Rights Defenders.” Euromed Rights, 2015. https://euromedrights.org/wp-content/uploads/2015/12/EuroMed-Rights-TTK-Syria-ICL-EN.pdf

Last Updated: August 15, 2018

Author: Nova Pui Yan Tang