Eichmann, Pinochet, Barbie, Touvier, Rios Montt, Fujimori, Scilingo, Munyaneza, and Simbikangwa: a few among the thousands that have been processed, in the spotlight or below the radar, through national courts for the commission of atrocity crimes. The role of national jurisdictions in the fight against impunity for international crimes is the object of this chapter.

One of the justifications for the creation of international criminal institutions is the traditional failure of States where the crimes occurred, or of which the perpetrator is a national, to undertake investigations and prosecutions in respect of such crimes. The same rationale explains the development of the principle of universal jurisdiction. Universal jurisdiction is indeed based on the notion that some crimes – including genocide, crimes against humanity, war crimes, enforced disappearances, and torture – are of such exceptional gravity that they affect the fundamental interests of the international community as a whole. Every member of the international community therefore has a right – or an obligation, as we shall see – to ensure that these crimes do not go unpunished.

Interestingly, despite this fundamental rationale for the existence of international courts, the International Criminal Court has not followed the model of the ad hoc tribunals for the former Yugoslavia and Rwanda, based on the primacy of the international jurisdictions over national jurisdictions. The Court is ‘complementary to national jurisdictions’ and its Statute further affirms in the Preamble that it is ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’. The Assembly of States Parties reaffirms this commitment at every meeting.

The International Criminal Court is thus based on the hope that classical assumptions to the effect that the post-conflict domestic dynamic prevents war crimes trials can be reversed. It is also based arguably on the idea that it forms part of a system of accountability for core international crimes, composed of a web of national jurisdictions able and willing to investigate and prosecute such crimes wherever they were committed, with the international institution ready to act to close the impunity gap where no State can or does so genuinely.

When the Rome Statute of the International Criminal Court was being negotiated, there was much discussion about whether ‘treaty crimes’ should be included within the jurisdiction of the Court along with the ‘core crimes’ of genocide, crimes against humanity, war crimes, and the crime of aggression. Ultimately, only the ‘core crimes’ were included. In the context of that debate, ‘treaty crimes’ referred to serious drug crimes as contained in United Nations treaties on the subject, and the set of ‘terrorism’ offences contained in a number of multilateral treaties entered into from the 1970s onwards, beginning with hijacking and other offences against aircraft. The dozen or so terrorism treaties in question were negotiated under the auspices of the United Nations and its specialised agencies, notably the International Civil Aviation Organisation and the International Maritime Organisation. These terror crimes include assaults on internationally protected persons, the taking of hostages, unlawful dealings in nuclear materials, violence at airports serving international aviation, acts against the safety of maritime navigation and on fixed platforms on the continental shelf, attacks on United Nations and associated personnel, terrorist bombings, the financing of terrorism, and nuclear terrorism. Such crimes may yet find their way into the jurisdiction of the Court, since it was understood in Rome in 1998 that their inclusion would be considered ‘later’. The process for their possible inclusion is proceeding at a glacial pace and ‘later’ is nowhere near in sight.

I suggest in this chapter that the category of treaty crimes is in fact much broader than those that were on the table in Rome. It encompasses a multitude of infractions from the exotic to the mundane that have been regulated in bilateral and multilateral treaty practice over the last two hundred years. It is common these days to describe this area as ‘transnational criminal law’, as opposed to ‘international criminal law’ or ‘international criminal law stricto sensu’, the latter terms being commonly used to describe the Rome Statute crimes. The treaties that are the subject of this chapter are often labelled ‘suppression conventions’, a descriptor which emphasises their core feature. That core is a promise by the parties to make something criminal under their domestic law, to ‘suppress’ it.

The expression ‘atrocity crimes’, apparently first proposed by David Scheffer, and subsequently adopted by the Special Advisers to the United Nations Secretary-General on the Prevention of Genocide and on the Responsibility to Protect, has emerged in recent years as shorthand for the offences that comprise the common denominator of the subject matter jurisdiction of the modern international criminal tribunals: genocide, crimes against humanity, and war crimes. Since the modern generation of international criminal courts and tribunals began activity in the mid 1990s, essentially all of the prosecutions have been for genocide, crimes against humanity, and war crimes. Exceptionally, the prosecutions at the Special Tribunal for Lebanon are for terrorist crimes under Lebanese law. The Special Court for Sierra Leone was able to exercise jurisdiction over some serious offences in the criminal law of Sierra Leone but the Prosecutor never sought indictments under the relevant provisions. And, soon, the International Criminal Court will be able to deal with the crime of aggression, a subject discussed in the chapter in this book by Benjamin and Donald Ferencz. All of the tribunals also have jurisdiction over offences related to their own operations, in particular perjury and contempt of court.

The Oxford English Dictionary defines ‘atrocity’ as ‘[a]n atrocious deed; an act of extreme cruelty or heinousness’, offering Thomas Jefferson as the historical example of its first use: ‘To defend themselves from the atrocities of a vastly more numerous and powerful people.’ Jefferson was justifying the young American government's provision of weapons to aboriginal peoples in Florida in order to protect themselves from Spanish colonialists. The association with this early manifestation of ‘humanitarian intervention’ is intriguing because ‘atrocity crimes’ are the unifying principle of the modern doctrine of the responsibility to protect, defined by the United Nations General Assembly in 2005.

In international law, the tripartite classification of genocide, crimes against humanity, and war crimes can be traced to the First World War. On 24 May 1915, the United Kingdom, France, and Russia informed the Ottoman rulers of reports of ‘these new crimes of Turkey against humanity and civilisation’. This was the first use of the term ‘crime against humanity’ in an official context although it had been employed by writers since the middle of the eighteenth century.

In 1950, Professor Georg Schwarzenberger wrote an article expressing his doubts about the existence of international criminal law. In response, Professor Gerhard O. W. Mueller responded that international criminal law exists because it is being taught in universities. The Schwarzenberger approach reflects the positivist school, which in turn incorporates political realism. Thus, international criminal law exists only when States want it to exist. In other words, international criminal law does not exist per se – but only to the extent that States want it to exist and that this is reflected in positive international law. The proponents of the philosophical perspective advance the same claim for international law in general. This is the legacy of the 1648 Westphalian approach, which still lingers on in world affairs. The Mueller approach reflects the natural law philosophical approach, founded on higher values and overarching principles that should control State-action. These opposing views are both, to some extent, correct. Anything international is by its very nature conditioned by State interests and, maybe because of that, is sui generis and mostly ad hoc. But that does not mean that State interests always, and with respect to everything international, are devoid of or not subject to considerations based on higher values and enduring principles.

In the course of time, particularly after the Second World War, the establishment of the United Nations and the development of international human rights law, international law has sought to reconcile conflicting and competing State interests while at the same time identifying commonly shared interests that reflect certain higher values and enduring principles. As is evident from what follows, history does not repeat itself; precedents are not comparable and are not necessarily binding upon States’ future conduct. Yet somehow, since 1648, there is evidence that commonly shared values have influenced the collective decision-making processes of States, notwithstanding State interests. In contemporary times, this is evident in matters of international trade and other areas where the common and mutual interest of States exists. In fact, in those areas much progress has been made in collective decision-making. Not so, however, in other areas where such mutuality of interest is evident, as is the case in the fields of human rights, international criminal justice, and international criminal law.

By the Mueller postulate international criminal law and international criminal justice not only exist, but by now they are both doing very well.

The trial of the former president of Liberia, Charles Ghankay Taylor, by the United Nations-backed Special Court for Sierra Leone, was remarkable for several reasons. First, it was the only case before the Court involving a non-Sierra Leonean. Taylor is from neighbouring Liberia, where he is alleged to be responsible for crimes even worse than those committed during Sierra Leone's civil war. But Taylor, like all the other rebel leaders from his native country, has never been prosecuted for crimes committed in Liberia because the parties to that conflict effectively granted themselves amnesty. Rather, he was implicated by the Special Court for supporting Foday Sankoh, the leader of a rebel army called the Revolutionary United Front, to foment a war in Sierra Leone in which numerous atrocity crimes were committed. Sankoh and Taylor made ‘common cause’ to help each other take over their respective countries for personal and political gain.

Second, as a criminal trial, the case against Taylor was inevitably complicated. He reportedly never set foot in Sierra Leone during the time the offences for which he was charged were perpetrated. This meant that the prosecution's appropriate burden to prove the case beyond a reasonable doubt, when compared to the other cases before the Court, was going to be doubly difficult. Indeed, for most of the pre-trial and trial phases, the success of the case against Taylor appeared to hinge primarily on two expansive and controversial modes of criminal liability in international criminal law – joint criminal enterprise and command responsibility – neither of which requires the suspect to directly commit the acts in question. The task for the Court's prosecutors was how, using those two and other indirect theories of criminal participation such as instigating or ordering, they could link Taylor in Liberia to the offences carried out by the Revolutionary United Front and its collaborators in Sierra Leone. Interestingly, although it managed to secure Taylor's conviction for planning and aiding and abetting crimes in Sierra Leone, the prosecution failed to prove joint criminal enterprise and command responsibility.

Aside from Taylor, those persons tried by the Special Court were leaders of rebel, militia, or other organisations. Those convicted in the cases involving the Revolutionary United Front, the Civil Defence Forces, and the Armed Forces Revolutionary Council were part of the command structure of those entities.

For almost the first half-century since its creation under the United Nations Charter in 1945, the United Nations Security Council spent relatively little of its time focusing on matters of international criminal justice. The Security Council is first and foremost the guardian of international peace and security under the Charter. It has attempted to fulfil that responsibility during a long and controversial history of mandating compliance with international law, imposing economic sanctions to coax recalcitrant nations towards acceptable behaviour, setting up peacekeeping operations to facilitate implementation of peace settlements or to defuse violent stand-offs between warring parties, and approving peace enforcement actions that might delegate to national military combat forces the task of intervening in an armed conflict or humanitarian calamity with the aim of ending it.

Original intent

One would be hard pressed to find anything, even inferentially, in the travaux préparatoires, or negotiating records, of the United Nations Charter – either at Dumbarton Oaks in 1944 or San Francisco one year later – that points to establishing the Security Council for the purpose of building international criminal tribunals or using judicial tools to compel compliance by individuals (of whatever allegiance). Rather, as with its predecessor, the Permanent Court of International Justice under the League of Nations, the International Court of Justice was conceived as the UN Charter's instrument of judicial remedies. But the jurisdiction of the International Court of Justice is directed towards the conduct of UN Member States and their governments and thus entails State responsibility. Absent is the typically domestic task of criminal justice that disciplines individuals for well-defined and actionable crimes. One may safely assume, based on any evidence to the contrary, that as the Second World War came to a close and the United Nations emerged from that global war's massive assault on humankind, the idea of using the Security Council to promote international criminal justice simply had not registered with the founders of the United Nations.

Soon, however, the United Nations International Law Commission, responding to a request by the General Assembly, adopted the Nuremberg principles in 1950, thus confirming that there was broad international endorsement of the illegality of atrocity crimes, namely, genocide, crimes against humanity, and serious war crimes following the Nuremberg military tribunal trials.

After the end of the Cold War, the time was ripe for further and spectacular developments in international criminal law. For a long time after the creation of the post–Second World War tribunals of Nuremberg and Tokyo the efforts to establish successors were fruitless. Progress was made in the field of standard-setting, as is demonstrated by the adoption of the Genocide Convention, the Geneva Conventions and Additional Protocols, and the Convention against Torture. This progress was not matched by the creation of international judicial mechanisms aimed at ending – or at least reducing – impunity for the commission of international crimes.

This changed in the 1990s, when ad hoc international criminal tribunals were created by the United Nations directly (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) or by means of a treaty between the United Nations and a State (Special Court for Sierra Leone). The creation of the International Criminal Tribunal for the former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda in 1994, in particular, set in motion an almost unsaturated development of international criminal law. It was the upbeat to the later creation of the International Criminal Court, other international criminal justice mechanisms and renewed attention to prosecution of international crimes domestically. It made the relatively dormant field of international criminal law fully come to life. If the United Nations ad hoc tribunals made one thing clear it must have been that international criminal law can be a very powerful tool and that impunity for the most serious crimes is not self-evident.

One can hardly overestimate the importance of the United Nations ad hoc tribunals for the development and operationalisation of international criminal law. This chapter cannot do justice to their impressive achievements and contributions to the field. It is confined to a sketch and outline of what I perceive to be essential information on the ad hoc tribunals and also what I perceive to be their most significant contributions to the field of international criminal law. This analysis and the underlying choices are by definition selective. One is thus encouraged to engage in further reading within the rich variety of available literature on the topic.

The present chapter deals with the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone.

One might expect the opening chapter of this Cambridge Companion to International Criminal Law to suggest that human rights came first and slowly developed a criminal law arm in order to prosecute the worst offenders. Indeed, a well-established account presents the process as passing from a preliminary enunciation of values stage through to declarations, prescription, enforcement, and finally criminalisation. But the relationship between human rights and international criminal law is more complicated and, today, produces not only tension but also confrontation. This chapter will highlight tension over harmony, and suggest that the articulation of the relationship between these two branches of law remains very much ‘work in progress’. Although many scholars and activists are involved in both branches, at certain points the dynamics diverge and the thirst for the prosecution of international crimes may not always take fully on board the human rights implications of such processes.

International criminal law can be seen as covering both crimes under treaties, which usually take effect through national legal orders, as well as what are increasingly called ‘atrocity crimes’ or ‘core crimes’, which may exist independently of national law and can be prosecuted in international courts. Such atrocity crimes can of course also be prosecuted at the national level, where the national courts enjoy such jurisdiction.

International criminal law, in the form of treaty crimes, has been traced back to classical times and to a treaty between the Kings of Cyprus, Alexandria, Egypt, Cyrene, and Syria aimed at preventing the harbouring of pirates. The modern idea of international criminal law owes more, however, to the International Military Tribunals, established in Nuremberg and Tokyo after the Second World War. These courts, set up by the victorious Allies, focused on atrocity crimes (war crimes, crimes against humanity and genocide) as well as crimes against peace (aggression).

Strictly speaking, the Nuremberg International Military Tribunal had concluded its work before the drafting of the 1948 Universal Declaration of Human Rights had been completed. So it might seem that international criminal law came before international human rights law. But such a conclusion would ignore the key point that multiple commitments to fight for human rights were made by the Allies and popular movements throughout the Second World War.

Allow me to start with a basic, but not unimportant question: ‘When will the United States become a State Party of the International Criminal Court?’ Well, it is exactly this question which was put to me in an interview by the Süddeutsche Zeitung – a German newspaper – published on 28 June 2012, on the occasion of the tenth anniversary of the entry into force of the Rome Statute. The answer that I gave then is essentially the same as my assumption today: regrettably there is no chance that the United States will join the Court in the foreseeable future. But I assume, no, I believe that the United States will be a State Party at the latest around the year 2040, almost forty years after the entry into force of the Rome Statute – it took the United States also almost forty years to ratify the Genocide Convention.

When this happens it seems quite likely to me that China will already be a member of the Court. I continue to be in regular contact with well-informed Chinese interlocutors. Already in 2003, when then President Kirsch and I were invited to Beijing, the Legal Adviser of the Chinese Foreign Ministry told us: ‘China, even as a non-State Party, wants to be regarded as a friend of the International Criminal Court. We will follow a wait-and-see policy for some time and observe whether the Court will behave as a purely judicial institution or whether it engages in politically motivated prosecutions. If the latter is not the case, the time for Chinese membership may come.’ More importantly, in the next decade there will be further profound changes in China, a new leadership replacing the old guard, a more democratic society – these developments may lead to Chinese membership in the International Criminal Court system sooner than expected.

I will address three sets of issues: (1) What about the efficiency and administrative culture in the International Criminal Court of the future? (2) What are some possible or likely developments with regard to judicial proceedings or with regard to the applicable criminal law? (3) What about the relationship between the International Criminal Court of the future and States Parties, States in general or the Security Council?

‘Un momentito, señor’, said Mossad agent Peter Malkin almost apologetically to attract the attention of a synchronised walker who was getting lost in the shadows of a small town in the province of Buenos Aires in the middle of the year 1960. These were the simple but very symbolic words that started a chain of events that irrevocably changed the landscape of international criminal law. After some considerations on the historical background of the Eichmann case the chapter will analyse the main legal issues of the trial.

Historical background: from Berlin and Buenos Aires to Jerusalem

Otto Adolf Eichmann was a member of the Schutzstaffel (‘SS’), the Sicherheitsdienst (‘SD’) and the Gestapo, all of which were declared to be criminal organisations by the Nuremberg International Military Tribunal. More importantly, in the Nazi's bureaucracy of destruction, he was the head of the section IV B 4 of the Reichssicherheitshauptamt, an office that resulted from the merger of the security service of the Nazi party and of the security police of the Nazi state (Gestapo). In this function, Eichmann organised and coordinated the deportations of the Jews to the concentration camps. The Jerusalem District Court that sentenced Eichmann to death on 12 December 1961 summarised his role as follows:

Like many Nazi war criminals, Eichmann managed to escape from immediate post-war prosecution. At the beginning of 1946, Eichmann, using the aliases Otto Heninger and Otto Eckmann, escaped from American war captivity and went into hiding in a small village in the Lüneburg Heath, an area in northern Germany. There he lived an inconspicuous life and enjoyed apparently widespread appreciation.

Children withstand unique harms in periods of armed conflict and similar violence. Whether infants or juveniles, during such periods children often are among the most vulnerable persons. Children typically depend on their elders for sustenance, and so the loss of parents or other guardians, coupled with the destruction of homes, displacement from communities, and deprivation of basic necessities, education, or health care, affects them acutely. Some children do not survive war; others subsist along war's waysides. Still others find themselves in armed groups, where they may be required to aid or participate in combat and, at times, to endure sexual or other physical assault. In recognition of such experiences, Raphael Lemkin, a foundational figure in the development of international criminal law, once wrote: ‘The permanent psychological injury and the arrest of normal development of the child victim is perhaps the most shocking and tragic result of genocide.’

Stories of such children have been told and retold, not only in recent memoirs like A Long Way Gone, an account of armed conflicts in 1990s West Africa, but also in much older ones like the world-famous diary of Anne Frank, a European teenager who lost her battle to hide from the Holocaust. Frank's story reflected a myriad of children's experiences during the Second World War. Nevertheless, early international criminal justice mechanisms paid scant attention to children's wartime plight. Neither the 1945 Charter of the International Military Tribunal, which tried accused major war criminals in Germany, nor Control Council Law No. 10, upon which twelve subsequent Nuremberg trials were based, made any mention of children. The same was true of the 1946 Charter establishing the Tokyo Tribunal. Even the seminal instrument of post-war collective security, the Charter of the United Nations, was silent with respect to children. In stark contrast were institutions established at the turn of the twenty-first century. The statutes of both the Special Court for Sierra Leone and the International Criminal Court place emphasis on crimes against children, and both courts have convicted individuals charged with such crimes. The initial focus, on the recruitment and use of child soldiers, eventually shifted towards a more comprehensive approach. International Criminal Court Prosecutor Fatou Bensouda has explained that ‘in addition to focusing on children who are forced to carry arms, we must also address the issue of children who are affected by arms’.

Any volume on international criminal law would be incomplete without paying closer attention to the broader legal, political, and societal context within which this body of law is originating, as well as operating. Specifically, when countries are transitioning from violent conflict and war to the end of hostilities and peace, or when dictatorships are replaced by new forms of democracy, international criminal law becomes part of a larger agenda on how to address the crimes committed in the past or by a previous regime. More than ever before, the new power holders who may be democratically elected cannot avoid confronting the legacy of the country's past and the road towards the future. The latter half of the twentieth century and the first fifteen years of the new millennium are full of examples of such conflicts and the ensuing issues, including the Second World War, the restoration of democracy in Latin America, the period following the fall of the Berlin wall, post-apartheid South Africa, etc. Frequently posed questions include: how to deal with the offenders of serious crimes in the past, whether it is better to remember or forget the horrors of the past, how to address the damage done to victims, and what is the room for independent decision-making by countries and regimes?

These issues, and the circumstances leading to them, are nowadays subsumed under the general concept of ‘transitional justice’, which has rapidly become entrenched in national and international research and policy-making. In this contribution, we first explain the origins and content of this notion, before going into the four main components considered to constitute transitional justice. We finish with some critiques and challenges for transitional justice.

Transitional justice: what's in a name?

The International Centre on Transitional Justice, one of the world's leading think tanks in this field, defines transitional justice as ‘the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programmes, and various kinds of institutional reforms.’ While this definition refers to the current-day understanding of transitional justice, it should be noted that over the last quarter century considerable evolutions have taken place at the conceptual and also practical level.

How are individuals who are convicted of extraordinary international crimes punished? How ought they to be punished? Do current approaches to punishment attain their stated goals? Regrettably, these crucial questions are understudied. For the most part – as William Schabas has noted – punishment and sentencing linger as afterthoughts within the field of international criminal law. This neglect is somewhat of a pity. After all, what ultimately happens to persons convicted of international crimes matters greatly to victims. Sentencing may also fulfil important narrative functions. Sentencing can serve as a venue to individuate differentiations among perpetrators, in particular within the context of group crimes, and thereby inject granularity into the attribution of responsibility.

Contemporary international criminal courts and tribunals predominantly punish through imprisonment. While restitutionary and reparative remedies can be awarded in some instances, these possibilities remain penumbral. The Trust Fund for Victims, established by the Rome Statute and funded by donor states, has nevertheless supported collective projects and, on this note, may come to more robustly instantiate reparative justice. The Trust Fund disclaims any punitive orientation and operates within a restorative paradigm.

A sentencing practice has emerged within international institutions. This practice can also be aggregated across institutions. The various international institutions are independent. When it comes to sentencing they nonetheless cite extensively to each other's jurisprudence. Such cross-references occur despite the formal absence of the doctrine of stare decisis and proof that the affirmed principle in fact constitutes a general principle of law. This cross-referencing also takes place notwithstanding differences among the mandates and directives of these various institutions as enunciated by their enabling instruments. On the other hand, the need to individualise the penalty means that previous sentencing practices provide only limited assistance.

When national institutions are called upon to punish individuals convicted of genocide, crimes against humanity, and systematic war crimes, the national penological framework of the state in question governs the punishment that is meted out. Although greater diversity of sanction arises at national levels, incarceration once again emerges as the preferred modality of punishment. Within the context of incarceration, considerable variation arises among national legal systems as to the norms of sentence severity (both in the case of international crimes and ordinary common crimes).

The ancient aspiration that the peoples of the earth might someday renounce war-making and ‘beat their swords into plowshares’ seemed to get rather a significant boost with the establishment in 1945 of the UN system. Not long thereafter, the judgment of the International Military Tribunal at Nuremberg made clear that leaders responsible for crimes against peace, war crimes, and crimes against humanity could be criminally prosecuted in their individual capacities for such crimes. Consistent with the UN Charter's determination ‘to save succeeding generations from the scourge of war’, the General Assembly, in its first session, affirmed the principles of international law recognised by the Nuremberg Charter and judgment and called for their formulation within an International Criminal Code, to be developed for later adoption and implementation.

The Cold War had a chilling effect, and it would be half a century before an international criminal code would finally emerge as the Rome Statute of the International Criminal Court. The Conference of Plenipotentiaries which met in Rome in the summer of 1998 was able to agree on granting the Court active jurisdiction over war crimes, crimes against humanity, and genocide – but not over the crime of aggression. Left unresolved in Rome were issues relating to the definition of aggression as well as whether acts of aggression ought to be determined judicially, by an independent Court, rather than by the Security Council. As a compromise, aggression was included within the Court's jurisdiction, but the Court would not be able to exercise its aggression jurisdiction until further hurdles were overcome.

The showdown on this issue would come in May and June of 2010, at a Review Conference of the Rome Statute of the International Criminal Court held in Kampala, Uganda. There, members of the Assembly of States Parties met to consider the adoption of provisions on aggression that, if made effective, would statutorily define the crime and allow the Court to exercise its jurisdiction over it. The Conference succeeded in amending the Statute so as to include a definition of aggression, but activation of the Court's jurisdiction over that particular crime was once again deferred.

The definition adopted in Kampala largely relied on a list of enumerated acts constituting aggression, as set forth in a consensus definition which had been approved by the UN General Assembly in 1974.