BY CLEO MEINICKE, RESEARCH ASSOCIATE PILPG-NL
“An International Criminal Court is hereby established.
It [...] shall be complementary to national criminal jurisdictions. ”
In October 2018, the Bosnian state court indicted a former soldier of crimes against humanity for his involvement in the murder and enforced disappearance of civilians in the Kljuc area. In September of that year, a German court convicted Ibrahim Al F. for war crimes committed in Syria and in the same month a military tribunal in the Democratic Republic of the Congo found two military commanders guilty of crimes against humanity committed in the villages of Kamananga and Lumenje (South Kivu). These are just three recent examples of domestic efforts in the prosecution of those responsible for international crimes.
Based on the complementarity principle of the International Criminal Court (ICC), where states are “unwilling or unable” to prosecute international crimes, the ICC may step in to prosecute those most responsible for the commission of the crimes under its jurisdiction, namely genocide, crimes against humanity, war crimes, and the crime of aggression. However, out of 28 cases before the Court since its inception in 2001 only three resulted in successful convictions. Several suspects were acquitted after lengthy proceedings, of which Gbagbo and Blé Goudé are the latest examples. Therefore, the ICC should be regarded as a last resort while domestic courts carry the main responsibility to prosecute those responsible for international crimes.
Despite efforts by Bosnia, Germany, the Democratic Republic of the Congo, and others, many states around the world do not have the right legislation in place to prosecute international crimes on a domestic level yet and among those that have, many face obstacles and limitations to the actual prosecution of those crimes.
This blog post is the first in a series of posts elaborating on the domestic prosecutions of international crimes, providing an overview for readers interested in this topic as well as monthly analyses on developments in different regions worldwide. The focus of the blog post series is on the four core crimes that fall under the jurisdiction of the ICC. Other transnational crimes such as terrorism, piracy, or human trafficking may be used as examples of domestic prosecution of international crimes.
Sources of Jurisdiction for Domestic Courts
Two main events have empowered domestic courts to exercise jurisdiction over international crimes. The first is the emergence of the principle of universal jurisdiction. This principle is based on the notion that any state may exercise jurisdiction over a situation involving crimes considered “to be of extreme gravity and concern the international community.” It emerged after World War II when the international community implemented a large number of international treaties, including the 1949 Geneva Conventions, that enabled states to implement the principle on a domestic level to prosecute genocide and war crimes, for example. The second event was the adoption of the Rome Statute of the ICC that obliges its 124 member states to amend their domestic legislation to be able to prosecute international crimes. Based on the principle of complementarity, the ICC only has jurisdiction over cases where states are unwilling or unable to take action. In the cases touched upon in the introduction, which concern the gravest crimes, the national courts acted based on the universality principle and the Rome Statute.
Even though universal jurisdiction is the most used form of jurisdiction for international crimes, there are other forms of jurisdiction that provide domestic courts with the power to prosecute international crimes, especially those not falling under the Rome Statute. The territoriality principle permits jurisdiction based on where the crime took place. Domestic courts can use this type for example in cases of terrorist attacks if they have been committed on the state’s territory. The active personality principle permits jurisdiction based on the nationality of the perpetrator. Thus, where the perpetrator is a national of a state, that state may prosecute him or her. Alternatively, the passive personality principle allows for a state to claim jurisdiction based on the nationality of the victim. Third, the protective principle bases jurisdiction over a person on the protection of national interests or security even when the person is outside the state’s boundaries. Hence, domestic courts can base jurisdiction on several different principles to prosecute crimes of an international character.
Limitations to the Domestic Prosecution of International Crimes
The prosecution of international crimes domestically is often complicated. Problems occur, for example, when a state has not incorporated the international crimes into its domestic law or does not provide for universal jurisdiction. When a state does have a basis to prosecute international crimes, these cases are often complex and evidence is difficult to obtain from the respective states. Moreover, policy restrictions arise where there is a lack of specialized units or prosecutorial limits. Germany, France and the Netherlands for example have specialized war crimes units that support the investigation of the crimes committed. Lastly, lack of political will limit the success of prosecuting international crimes.
What are the main limitations to domestic prosecution of international crimes in the world? Are there geographical trends in the domestic prosecution of international crimes? In which areas are international crimes included in national legislations? Were suspects successfully prosecuted? What obstacles do states face? These are just some of the questions that will be addressed in the next blog posts!