procedure against him was not carried on properly.
The ICTY was able to convict to prison, in the same way as other national courts in the former Yugoslavia, but could not convict to a death sentence. It was also able to determinate the restitution of properties achieved by illegal methods to its lawful owners. The judges were elected by UN General Assembly, after propositions of the States of which they are nationals.
The International Criminal Tribunal for Rwanda (ICTR) was created on November 8th, 1994 by SC Resolution 955 using Chapter VII of the UN Charter, the ICTR was competent to prosecute individuals responsible for acts of genocide, crimes against humanity, violations of Common Article 3 of the Geneva Convention and its Additional Protocol II, or other grave breaches to International Humanitarian Law, committed on the territory of Rwanda and on the territory of neighboring countries, between January 1st to December 31st, in accordance to the dispositions of its Statute (Statute of International Criminal Tribunal for Rwanda, Art. 1).
The ICTR, similarly to ICTY, has the same competence as the national criminal courts, it had prime jurisdiction, and it had power to bring to analysis cases from the competence of national courts. Like ICTY, the Principle of non bis in idem did not apply in the same cases (prosecuted as common crime, unfair or non independent trial). It was able to convict to the same crimes as national judges (besides death penalty) and determine restitution of property to its owners.
6.2. THE INTERNATIONAL CRIMINAL COURT
In the sequence to the events that took place in ex-Yugoslavia and Rwanda, the international community realized that it was necessary to increase the international crime repression through international penal instruments, with the creation of two ad hoc (for the case) international courts for Ex-Yugoslavia (ICTY) and Rwanda (ICTR) and, recently, created the International Criminal Court (Created by Rome Statute, in July 17th, 1998. The ICC Draft Statute was recommended to the General-Assembly in 1994 by many delegations, because it would be more appropriate than the ad hoc regional tribunals created by the Security Council. BROWNLIE, Ian. Principles, pg. 571). While the ICTY and ICTR became active right after their creation, the ICC began its activities the first day of the following month after the deposit of the sixtieth ratification of its funding Treaty (Statute of Rome). In other words, it is active since July 1st, 2002.
Article 1 of the Statute of Rome disposes that it is created an International Criminal Court, a permanent institution, which may exert its jurisdiction on individuals, concerning crimes of high concern in international jurisdiction. Its jurisdiction is complementary to the role of national criminal judges.
The jurisdiction of the court is restricted to very serious crimes that affect the international community as a whole. In the terms of its Statute (Article 1, § 5 of Statute of Rome), the Court has jurisdiction on the following crimes:
- Genocide (destroy, in whole or in part, a national, ethnical, racial or religious group, through killing members of the group, or causing serious bodily or mental harm, or inflicting conditions on the life calculated to bring about its physical destruction in whole or in part, or imposing measures to prevent births within the group, or forcibly transferring children of the group to another group);
- Crimes against humanity (widespread or systematic attacks directed against any civilian population, like murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act considered a crime against humanity or any crime within the jurisdiction of the ICC);
- War crimes (grave breaches of the Geneva Conventions of 12 August 1949, against persons or property protected under the provisions of the relevant Geneva Conventions, like willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering, or serious injury to body or health, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, compelling a prisoner of war or other protected person to serve in the forces of a hostile power, willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial, unlawful deportation, transfer or confinement, taking of hostages);
- Crime of aggression (plan, prepare, initiate or wage a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of the foregoing).
The Statute of the Court was approved in Rome, on June 17th, 1998. Different than the International Court of Justice (ICJ), that analyses litigations between States, the International Criminal Court is competent to prosecute individuals accused of particularly severe crimes: genocide, crimes against humanity, war crimes and crimes of aggression. The ICC exerts its jurisdiction only when the State of the nationality of the accused, or the State whose territory the crime has happened, is part of the Convention, or explicitly gives its consent. The Tribunal is supplementary to national courts. The Court shall intervene only when the national tribunals cannot or refuse to bring the responsible persons to trial.
The ICC may begin the prosecution when provoked by States Parties, by UN Security Council or ex officio, with previous authorization of the Preliminary Chamber. Different than other International Criminal Tribunals and Courts (limited in time and territory), the ICC may exert its competence and jurisdiction in the territory of any State Party and, through a special agreement, in the territory of any State.
The ICC judges are elected by the UN General Assembly, from a list created by the Security Council, after a proposition by the State of which they are nationals.
Article 89 of the Statute of Rome creates an important institute: the Surrender. The ICC may send a demand of detention and surrender of an individual, instructed with documents referred in Article 91, to any country in whose territory this person may be, and require cooperation from this State in the detention and surrender of this individual. The States-Parties will respond to requests of detention and surrender according to Chapter Nine (International Cooperation and Judicial Assistance) and proceed according to the national rules.
This juridical instrument has been created to avoid the problems of Extradition, and only the ICC may use the request of Surrender, in crimes of its competence. The State party may refuse the request of Surrender only when the accused is already been prosecuted for the same crime, or it has already been judged (condemning or absolving) about the same case.
6.3. INTERNATIONALIZED CRIMINAL JURISDICTION
Third Generation of International Criminal Jurisdiction, the Internationalized Criminal Tribunals, or Hybrid Criminal Tribunals, are another option for the prosecution of crimes in International Law. It is also called International Criminal Justice of Proximity.
This branch of Criminal Justice addresses the jurisdictional mechanisms that national judges work side by side with international judges, applying the legislation of the country where the illicit facts were committed, allowing the participation of the State and its population in the procedure that will condemn or absolve the accused of international crimes.
The main advantage of this methodology is to be close to the community that has witnessed the crimes committed. Nevertheless, they are ad hoc judges, using the Universal Competence, nominated to assure the certitude of the procedure, especially in crimes in which there is a high internal pressure that may influence the impartiality of the national judge.
Another great advantage is the fast and easy hearing of witnesses, and production of proofs by both parties, because they are near the judges, and the Court may us
e the national judiciary system to do arrests, citations and intimations. Besides, a correct, impartial and fair trial seen by the whole population may cause a deterrence effect in other potential terrorists.
The trial by Internationalized Criminal Courts is based on the internal competence of the State, concerning the matter, the person or the place (ratione materiae, personae or loci), but also based on the Universal Competence. Therefore, there is no offense to the Sovereignty of the State, avoiding the main problem of the application of the Universal Competence alone.
Example: Tribunals in Cambodia, for the prosecutions of Khmers Rouges, with three national judges and two international judges, and Appeal Chamber with four national judges and three international judges.
Example: Tribunal in Lebanon, for the judgment of the assassination of Premier Rafic Hariri, with two international judges and one Lebanese, and Appeal Chamber with three international judges and two Lebanese ones.
6.4. INTERNATIONAL JUSTICE AND PEACEKEEPING
The confluence between the work of International Criminal Judges and the Blue Helmets is evident: they are created by the Security Council, they have clear and specific mandates, derived from Chapter
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