The arrest of Mladic, the Serbian general held responsible for the murder of 7,500 Muslims in the Sbrenica enclave, has brought the International Criminal Court in The Hague back into the spotlight. For which offenses can one be tried before this Criminal Court?
The International Criminal Court
Internationally, the Criminal Court is called: International Criminal Court (ICC) or Cour Pénale Internationale (CPI).
The Court has been located in The Hague, Netherlands since 2002. The International Criminal Court hears only cases
- if the country where the crime was committed, or the country from which the perpetrator comes, is affiliated to the Court.
- The condition is also that national states, which in principle have jurisdiction, are not willing or able to investigate or deal with the case.
- The crimes must have been committed after July 1, 2002.
The International Criminal Court was established in 2002, after 60 countries ratified the Statute for an International Criminal Court. 108 countries have now signed the Statute. The International Criminal Court is not part of the United Nations, but it does collaborate with it.
The Court employs 18 judges of different nationalities.
The International Court is a (permanent) court for prosecuting persons suspected of:
Genocide
Genocide, the crime of systematic and deliberate extermination of an ethnic group, or part thereof. Genocide is a special and massive form of extrajudicial killings or democide. (Definition from Amnesty.nl)
Crimes against humanity
Description (Article 7 of the Rome Statute)
‘any of the following acts, if committed as part of a widespread or systematic attack against a civilian population, with knowledge of the attack:
- murder
- extermination
- slavery
- deportation or forcible transfer of population
- imprisonment or other serious deprivation of physical liberty in violation of fundamental rules of international law;
- torture
- rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of sexual violence of comparable severity
- persecution
- forced disappearance of persons
- the crime of apartheid;
- other inhuman acts of a similar character that deliberately cause great suffering or significant damage to the body, mental or physical health.
War crimes
The general definition according to (Article 8 of the Rome Statute)
‘serious violation(s) of the Geneva Convention of 12 August 1949’:
- Intentional killing
- Torture or inhuman treatment, including biological experiments
- Intentionally causing serious suffering or serious injury to body or health
- Large-scale destruction and appropriation of property, not justified by military necessity and carried out in an unlawful and wanton manner
- Requiring prisoners of war or other protected persons to serve in the armed forces of a hostile power
- Intentionally depriving a prisoner of war or other protected person of the rights of fair and lawful trial
- Unlawful deportation or relocation or unlawful detention
- Taking hostages
- The deliberate targeting of attacks against the civilian population as such or against individual civilians who do not directly participate in hostilities
- The deliberate directing of attacks against civilian objects, i.e. objects that are not military targets
- Intentionally targeting personnel, installations, equipment, units or vehicles involved in humanitarian aid or peacekeeping missions
- Intentionally carrying out an attack knowing that such attack will cause collateral loss of life or civilians or damage to civilian objects or widespread, long-lasting and serious damage to nature
- Attacking or bombing towns, villages, homes or buildings that are undefended and not a military target
- Killing or wounding a combatant who, after laying down his weapons and surrendering unconditionally
- The improper use of a white flag, the flag or military insignia and uniform of the enemy or of the United Nations, as well as the emblems of the Geneva Conventions, resulting in death or serious bodily harm
- The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population to the occupied territory, or the deportation or transfer of all or parts of the population of the occupied territory within or outside that territory
- Intentionally targeting buildings dedicated to religion, education, art, science or charitable purposes, historical monuments, hospitals and places where the sick and wounded are gathered, provided that they are not a military target
- Subjecting persons under the power of an opposing party to physical mutilation or medical or scientific experiments, the nature of which is not justified by the medical, dental or hospital treatment of the person concerned and which may cause death or serious danger to persons to that person’s health
- Treacherous killing or wounding of persons belonging to the enemy nation or army;
- Declaring that no mercy will be granted
- Destruction or seizure of enemy property (unless such destruction or seizure is imperatively required by the necessities of war)
- Forcing the nationals of the hostile party to participate in the activities of war against their own country, even if they were in the service of the belligerent party before the commencement of the war
- To plunder a city or place, even if the place is taken in an attack. To use poison or poisoned weapons;
- use asphyxiating, poisonous or other gases and other similar liquids, materials or devices
- Using bullets that expand easily in the human body
- Using weapons, projectiles and equipment and methods of warfare that cause unnecessary injury or suffering or that violate the international law of armed conflict
- Committing attacks on personal dignity, in particular humiliating and degrading treatment, rape, sexual slavery, forced prostitution, forced pregnancy, as defined in Article 7, paragraph 2 (f), forced sterilization, or any other form of sexual violence which is also a serious violation of the Geneva Conventions.
- Using human shields
- Starvation and the deliberate obstruction of relief supplies for survival
- Calling for military service or recruiting children under the age of fifteen years into the national armed forces or using them for active participation in hostilities
- Violence to life and person, in particular all forms of murder, mutilation, cruel treatment and torture
- Committing attacks on personal dignity, in particular humiliating and degrading treatment;
- taking hostages;
- The execution of executions without prior judgment pronounced by a lawfully constituted court offering all legal guarantees generally recognized as indispensable.
- Other serious violations of the laws and customs applicable in armed conflict, although not international in character.
Article 8 has been further expanded with regard to conflicts that do not have an international character but still fall under war crimes.
Articles 7 and 8 have been translated by the author of this article and simplified for ease of understanding and readability. For the correct interpretation, reference is made to Articles 7 and 8 of the Rome Statute. The lists are long and it is stated quite precisely what a crime is.
Proceedings before the International Criminal Court commence upon indictment by individuals and/or a power.
The exceptional position of the USA
The United States of America signed the Rome Statute in 1998 under President Bill Clinton, but President George W. Bush never ratified the Rome Statute (considered it legally valid.)
Under President Barack Obama, the Americans started to act as ‘ observation ‘.
GW Bush was afraid that US nationals would fall under the statute’s offenses for their acts of war and could be charged and punished before the Court. (Not wrongly: see for example what happened in Quantana mo Bay).
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- Being indicted at the International Criminal Court
- The operation of the International Criminal Tribunal for the former Yugoslavia
- Immunity or non-prosecution of criminal heads of state
- Conviction and execution of (ex) heads of state
- The illness excuse for extradition for war crimes