Since the war crimes trials that followed World War II, the “law of nations” has become more widely understood and accepted throughout the world. As a result, an increasing number of individuals have been prosecuted and convicted for international crimes. Understanding the principles of effective administration of international criminal justice and the proper adjudication of international crimes begins with a review of the sources of international criminal law, followed by the various steps in the process. In general terms, these are the investigation, the indictment, the trial, and appeals. The sources of international criminal law can be divided into two basic categories: international and state. References to state law in this context mean international law that has, in one way or another, been incorporated into the national, domestic, or municipal laws of a country. The sources of inter-national law that are found beyond the borders of any given state include multilateral treaties such as the Geneva Conventions of 1949 and the Rome Statute of the International Criminal Court (ICC). International crimes also can be found in custom-ary international law, which is viewed as generally accepted principles of law or customs, irrespective of whether they are codified into any particular con-vention, treaty, or legislation.
Regardless of the specific source of international law, the acts and offenses categorized as interna-tional crimes include, but are not limited to geno-cide, war crimes, and crimes against humanity, such as murder, extermination, enslavement, torture, forced prostitution, rape, forced sterilization, and forced disappearance when perpetrated in connec-tion with an attack against a civilian population. It should be noted that the nexus between the attack against civilians and specific crimes is purely juris-dictional, and it is not an element of the crime that must be proved against a particular defendant.
International crimes that are specified in treaties, conventions, and other international instruments include the taking of hostages, apartheid, terrorist bombings, financing of terrorism, crimes against inter-nationally protected persons and diplomatic agents, and slavery. For example, the Hague Convention on the Suppression of Unlawful Seizure of Aircraft (Hijacking Convention) requires each contracting state to take all necessary measures to establish crimi-nal jurisdiction over offenses falling within the con-vention. Another example is the Geneva Conventions of 1949, particularly the Third Convention Relative to the Treatment of Prisoners of War and the Fourth Convention Relative to the Protection of Civilian Persons in Time of War. Both of these conventions codify grave breaches of the conventions, such as murder, rape, and torture, as international crimes.
Individual Criminal Responsibility
Contemporary prosecutions for violations of inter-national criminal law are brought against individuals. As with most domestic criminal law, in order for a person to be held criminally responsible for a particular act, there must be a coexistence between the actus reus , or physical act, and the mens rea , or “guilty mind.” The actus reus , however, can take different forms, such as an omission or a failure to perform a legal duty. One very good example is a military commander’s failure to prevent a crime from being committed by one or more subordinates if the commander reasonably should have known the crime was likely to occur. Alternatively, military commanders who fail to punish their subordinates after learning of their criminal activities, such as murdering prisoners of war or sexually assaulting civilians, also may be held individually criminally responsible for international crimes.
Historically, the idea of collective criminal respon- sibility—holding an individual criminally responsible merely for membership in a particular group—has drawn criticism, particularly when a specific criminal act (other than group membership or association) cannot be demonstrated. Participation in criminal conspiracies and criminal enterprises is an exception to this notion, although these concepts also have been criticized by some jurisdictions when holding one participant criminally responsible for the acts of another. As in many national jurisdictions, the crime of conspiracy may or may not be available relative to a particular crime under international law. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) has jurisdiction to adjudi- cate charges of conspiracy to commit genocide under Article 4 of the Statute of the ICTY, but conspiracy is not applicable to other crimes. However, the ICTY has ruled that the word commit under Article 7 of the statute includes committing crimes by indirect means, such as participating in an activity with a “common purpose” or a joint criminal enterprise (JCE) with a nexus to one or more of the crimes over which the tribunal has jurisdiction. Since the indictment of Slobodan Miloševi in 2001 for crimes alleged to have been committed throughout the Republic of Croatia, almost every major international criminal indictment has incorporated some aspect of the theory of the JCE. This was the first indictment at the ICTY that specifically charged the JCE, which was also based on an investigation premised upon this specific theory of individual criminal responsibility.
Investigation
Prior to the actual adjudication of an international crime, a criminal investigation must be conducted. The investigation of international crimes can be undertaken by international bodies such as the ICTY or the ICC, or by national authorities. Most investigations of international crimes pursued at the national level are undertaken by national-level investigative or law-enforcement agencies, as opposed to states, provinces, or other political subdivisions.
Investigations are led in a number of ways. They include the common-law method, led by senior investigating police officers; the civil-law method, by investigating judges or magistrates; and the grand-jury method, with a prosecutor providing overall direction that is carried out at the operational level by criminal investigations managers. At the ICTY, for example, during the earlier stages of the tribunal’s work, police investigative managers, working closely with team legal advisers, carried out the overall supervision of the entire case until the time of indictment, when a senior trial attorney (STA) took over the case. During the later stages of the tribunal’s work, officials believed that legal direction from the outset of the investigation was critical to the successful outcome of the case. Accordingly, a model roughly following the U.S. investigative grand-jury process was adopted, whereby overall direction from the inception of the investigation was directed by an STA with experience as a criminal prosecutor in a common-law country or an investigating judge in a civil-law country. Supervision of the investigative team and operational control in the field remained with the investigation manager.
Indictment
Following the investigation, the next step is formal indictment of the suspect. The prosecutor writes an indictment that informs judicial authorities of the charges alleged and provides, in one way or another, a minimal amount of evidence or a prima faciecase to support the allegations. A judge reviews the indict-ment and the evidence and decides whether there is indeed sufficient evidence to warrant proceeding to trial. The judge may ask to speak to the prosecutor or the lead investigator during an in camerareview, that is, a meeting in the judge’s chambers. This is an ex parteproceeding in which the person named in the indictment is not present to give evidence in his or her favor. If the judge agrees that a trial is warranted, the judge will confirm the indictment by affixing his or her signature to the indictment. This process is relatively analogous to returning a “true bill” of indictment in many common-law countries. If the judge believes there is insufficient evidence to proceed further, the indictment will be dismissed.
Initial Appearance
Once arrested or surrendered to the court of jurisdiction on the indictment, the accused will be brought before the judge without unnecessary delay. This is the stage where the accused is formally charged with the crime or crimes. The judge will ensure that the accused has legal counsel and, if the defendant is indigent, counsel will be arranged at no cost. The indictment then will be read to the defendant in a language he or she understands, and the accused will be called upon to enter a plea of guilty or not guilty. If the plea is not guilty, the case will be docketed for trial. If the accused fails to enter a plea or refuses to do so, the court automatically will enter a plea of not guilty on the defendant’s behalf.
If the accused pleads guilty, the court will endeavor to ascertain two important facts: whether the plea was voluntarily and knowingly made and, if so, whether there is a sufficient factual basis for a finding that a crime within the court’s jurisdiction indeed was committed and that the accused commit- ted the crime.
Trial
From the outset, it must be noted that in the process of adjudicating international crimes, the objective of the criminal justice system is to provide internationally recognized standards in connection with the rights of the accused at every step of the judicial process. Article 14 of the International Covenant on Civil and Political Rights is of the utmost importance. This international instrument lays the ground- work for many of the defendant’s rights, which are similar to those found in domestic criminal justice systems. These include the presumption of innocence, the burden of proof on the prosecution, and the standard of proof. Other international legal instruments incorporate the provisions of Article 14. For example, Article 66 of the Rome Statute pro- vides for a presumption of innocence for an accused person, and Article 21 of the ICTY statute places the burden of proof on the prosecutor.
There are, however, some differences between the rights and processes of international and domestic courts. At international tribunals, for instance, hear- say evidence is more easily admissible. For example, Article 69 of the Rome Statute of the ICC allows all probative evidence, that is, evidence that tends to prove an issue before the court. Another difference concerns the right to trial by jury. Unlike courts in the United States and other common-law countries, where a jury trial is provided by law, most international criminal trial courts consist of a panel of three judges, and judgments must be rendered by a majority of the judges.
At a minimum, the accused will be given adequate time and facilities to prepare a defense and will be tried without undue delay. Defendants will have the right to legal counsel of their own choosing, and if they are indigent, legal assistance will be provided at no cost. Defendants have the right to examine wit-nesses on their own behalf and to have the court compel the attendance of witnesses. Defendants also may not be compelled to be witnesses against them-selves, and inferences of guilt cannot be drawn from their silence.
Defenses
Many of the traditional defenses seen in national courts, such as self-defense and mistake of fact, are provided for in connection with international crimes. Some defenses, however, may not be avail-able. For example, the defense of duress for the killing of another and the defense of superior orders when the act was manifestly unlawful are not avail-able. Moreover, even traditional defenses may not be available under some circumstances. For example, defenses such as legitimate military targets and col-lateral deaths associated with those targets are inapplicable to crimes against humanity. These defenses also may not be available to a defendant charged with war crimes if the military objective was criminal from the outset, since combatants may lose their lawful combatant immunity for their criminal acts.
Protective Measures
In order to ensure the proper administration of jus-tice in international criminal tribunals, the court sometimes implements protective measures to pro-tect the privacy of victims and witnesses. To main-tain balance, these efforts must be consistent with the rights of the accused. Some examples of protec-tive measures include preventing disclosure to the public, including the media, of the names, identi-ties, and locations of victims and witnesses; using pseudonyms for witnesses; and altering the voices or images of witnesses. The court also may hold certain closed sessions of the proceedings for this purpose.
Appeals
Like many domestic legal systems, international tri- bunals have due process safeguards that provide the right to appeal a negative decision of the trial court. The case typically moves to an appeals chamber of the court, which reviews the case on record for error of fact and error of law. This review may include the sufficiency of the evidence for a finding of guilt and the appropriateness of the sentence.
Unlike in the United States and many other states, the prosecutor has the right to appeal a finding of “not guilty” or the appropriateness of the sentence. This means that an accused who was found not guilty could face jeopardy a second time, a notion that is not entirely uncommon in many legal sys- tems throughout the world. It must be noted that international criminal tribunals are often a hybrid of a number of legal systems, such as adversarial and inquisitorial models, and do not necessarily view one system as better than another.
National Prosecutions
Most of the discussion thus far has focused on the adjudication of international crimes by international tribunals, but as previously noted, national juris- dictions also can adjudicate international crimes. Indeed, many United Nations (UN) conventions and resolutions require member states to adopt relevant national-level legislation so that crimes can be pros- ecuted.
For example, Article 4 of the UN Convention Against Torture (CAT) requires state parties to enact legislation that criminalizes torture. In this sense, state prosecutions for violations of CAT can be had in national courts. This includes legislation that establishes jurisdiction over the offender by various means, including foreign nationals who are present in the state and nationals who are abroad. Such a prosecution incorporates the notions of extraterri- torial jurisdiction over a state’s own nationals and universal jurisdiction of crimes committed abroad by persons who are then in their states. Another example is the United States War Crimes Act, which codifies several instruments of international law. Section 2441 of Title 18 of the United States Code proscribes crimes against humanity, genocide, and grave breaches of the Geneva Conventions of 1949.
Other examples of national prosecutions related to international crime include Article 101 of the UN Convention on the Law of the Sea, which defines acts of piracy on the high seas, including theft, hostage taking, and other acts of violence or dep-redation. Directly related to this is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the International Convention Against Taking of Hostages. In spite of these conventions and the fact that piracy is an inter-national crime under customary international law, jurisdiction to prosecute and adjudicate these crimes is often problematic, because various states have dif-ferent laws under which the matter is approached, and some lack such laws altogether. The United States, however, pursuant to its authority under the Constitution and federal criminal laws, exercises “universal” jurisdiction over all acts of piracy on the high seas when the offenders are physically in or taken to the United States. Courts may impose strict punishment, including life in prison.
Enforcement of Sentences
Individuals found guilty of international crimes by an international criminal tribunal usually serve their sentences at a correctional or penal facility physi-cally located within a state that has entered into an agreement for this purpose with the international court. The laws of the receiving state relating to par-dons and commutation of sentences typically apply to international prisoners serving their sentences in that state. If that is the case, the state notifies the international tribunal, which makes the ultimate decision in this regard. The statutes that form the basis for the creation of an international criminal tri-bunal typically require member states to cooperate with the international tribunal.
Civil Adjudication of International Crimes
The International Court of Justice (ICJ), often referred to as the World Court, does not have juris-diction to adjudicate international crimes committed by individuals. The ICJ has jurisdiction over disputes between states, some of which do indeed involve international crimes. Accordingly, the ICJ cannot find anyone guilty of a crime, nor can it sentence someone. In fact, its decisions sometimes are seen as nonbinding or, at the very least, unenforceable. However, decisions of the ICJ often are very relevant and persuasive in national and international crimi- nal courts when interpretation of the UN Charter or the application of domestic law in international criminal prosecutions is relevant.
Another example of civil adjudication of inter- national crimes is the U.S. Alien Tort Claims Act (ATCA). The ATCA incorporates the Law of Nations into the domestic law of the United States, which provides a venue for U.S. district courts to hear claims under the act. Non-U.S. citizen victims of war crimes and crimes against humanity—includ- ing torture, cruel and inhuman treatment, forced disappearance, sexual assault, and other serious vio- lent crimes—can seek damages against individuals who were acting pursuant to foreign “color of law” or private parties who were acting under foreign color of state authority or whose conduct violates a norm of international law that extends to private parties. The accused must be properly served within the borders of the United States in order for there to be jurisdiction in the case.
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