CHAPTER ONE GENERAL INTRODUCTION

1.1 INTRODUCTION

The development of international criminal law represents a distinctive facet of post-World War II international law. In contrast to general international law that typically pertains to relationships between states, international criminal law centers on individuals. It imposes accountability on individual persons rather than states or organizations, establishing legal prohibitions and sanctions for acts defined as international crimes. The primary sources of international criminal law used by international and hybrid criminal courts encompass treaty law, customary international law, general principles of law, judicial decisions (as a subsidiary source), and scholarly writings (also a subsidiary source).

The concept of holding individual war criminals responsible for their actions traces back to the Nuremberg and Tokyo trials conducted after World War II. The conflict in the former Yugoslavia in 1993, marked by war crimes, crimes against humanity, and genocide under the guise of “ethnic cleansing,” thrust the issue of international crimes into the international spotlight once again. To end this widespread human suffering, the UN Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring perpetrators of these atrocities to justice, thereby deterring similar crimes in the future. More than half a century of efforts culminated in the establishment of the Rome Statute of the International Criminal Court (ICC) in 1998. In 2002, the ICC became the first permanent international criminal judicial institution in history, playing a crucial role in prosecuting individuals for the most serious crimes of international concern.

The Rome Statute of the ICC established the Court’s primary framework. International Criminal Tribunals have been lauded for their pioneering role in shaping and implementing international criminal law. Given the rudimentary nature of international criminal law at the time of the ICTY’s establishment, these ad hoc Tribunals engaged in ambitious lawmaking alongside their main task of prosecuting individuals for grave violations of international humanitarian law. The Secretary-General’s Report on the ICTY’s establishment stated that the Tribunal could only apply laws unquestionably part of customary international law, and the judges aimed to avoid creating new legal norms.

In practice, the judges of these tribunals utilized all sources of international law and adopted a flexible approach to customary international law. While the ICTY focused on custom beyond any doubt, the International Criminal Tribunal for Rwanda (ICTR) was not limited to the same extent. The ICTR had a broader jurisdiction encompassing not only customary international law but also international treaties, regardless of whether they had achieved the status of customary international law in Rwanda at the time of the crimes. Genocide, defined as a crime against entire human groups, was a key concern and led to the adoption of the Genocide Convention in 1948.

The International Criminal Court (ICC) is the principal court responsible for prosecuting international crimes. It was established in 2002 in The Hague, making it the first permanent international criminal judicial institution. The ICC possesses jurisdiction to prosecute individuals for the most serious crimes of international concern, including genocide, war crimes, crimes against humanity, and the crime of aggression. It has received referrals for investigations from States Parties and the United Nations Security Council. While the ICC’s seat is in the Netherlands, it can conduct proceedings anywhere globally and is primarily funded by its member states.