Chapter 15 Audio podcast

On February 24th this year, 2021, a court in Koblenz Germany sentenced a Syrian national, a Mr. Al-Gharib, to four years and six months in prison. Mr. Al-Gharib was a former member of the Syrian intelligence services and he was convicted for aiding and abetting in thirty cases of crimes against humanity.Crimes against humanity is a crime under International Law.

Mr. Gharib is the first former Syrian national to be convicted for crimes against humanity committed during the still ongoing war in Syria. The acts in question were committed in the early days of the popular Arab spring uprising against the Syrian regime. Mr. Gharib admitted to helpingrounding up protesters, who were then bused to an interrogation facility in Damascus.

He also admitted that he knew that the protesters would be tortured after they arrived in that interrogation facility. 

In this episode of the International Law Podcast, the 15^th and so far last issue, I will focus on international criminal Law. That is, that part of international law that concerns the criminal prosecution of individuals that are suspected of having committed international crimes. And, as you all know very well by now, I will highlight three issues that I think are particularly noteworthy.

The first issue I'll highlight is the distinction between the courts that, in practice, prosecute individuals suspected of having committed international crimes. It is a distinction that is a simple one. It is one between international and national courts.

Importantly then, there are only two types of courts, and the reason why I want to highlight this is that certain courts that prosecute international crimes are sometimes referred to as internationalized courts, or hybrid courts. To me, I have to stress this is confusing.

 All criminal courts are either international or they are national. No courts can fall in between.Essentially, whether a court is international or national all depends on the document on which the court is founded, and thus derives its existence.

Now, let's begin with the international criminal courts. These are the courts that have been established on the basis of an instrument of international law.In practice,that means courts that are created by a treaty; either a treaty that is concluded with the specific purpose of creating a particular court or treaty that in general provides for the creation of international courts. Let's take a few examples. 

The famous international military tribunal at Nuremberg, that was a seminal moment in the creation of international criminal law, was established by a treaty between the UK,the United States, France, and the Soviet Union, and therefore it was an international court.

The same goes for the International Criminal Court,the ICC, that I'll return to later in this episode. It was created by the Rome Statute, and therefore also created by a treaty.The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were also international courts. That is because they were created by the United Nations Security Council that derives its competence to create those two courts from its powers under the UN charter,and therefore, also the treaty.

To the contrary then, if a court derives its authority from an instrument of national law, it is a national criminal court, regardless of what it is called. It is also immaterial for our distinction,if some of the judges have been brought in from other countries, or what jurisdiction the court possesses. If the court is founded on the basis of national law, it remains in national criminal court.

An example of such a national court is the Extraordinary Chambers of the Courts of Cambodia that was created to prosecute crimes committed during the Khmer Rouge period,and that court was created under Cambodian Law. Also, if courts will one day be set up by a new government in Syria to prosecute international crimes committed there, such courts would be national if they are set up under Syrian national law. 

The second topic that I will focus on in this episode is the International Criminal Court,the ICC. Now, the initial point to note here is that the ICC is the first permanent International Criminal Court. Most of the other courts that I've mentioned so far have been ad hoc courts that have been created to prosecute individuals for crimes that are linked to a particular conflict or to a particular set of events.

 For example, the international criminal tribunal of Yugoslavia prosecuted crimes committed in the setting of the war in Yugoslavia in the 1990s, just like the international criminal tribunal for Rwanda, prosecuted crimes committed in that state during the conflict and genocide there in 1994.

But the ICC is a permanent international court for criminally prosecuting the most serious crimes of international concern.The legal basis for cruel prosecutions before any international court, including the ICC, is that the crimes are directly applicable on individuals in customary international law,and,this is important, without the need for an authority under national law.

The crimes under which the ICC has jurisdiction reflects the crimes that are generally considered to be directly binding on individuals under customary international law. These crimes are genocide, crimes against humanity, certain war crimes, and the crime of aggression.It should be noted, though, that the ICC did not get jurisdiction over the crime of aggression until fairly recently after the negotiation of an entirely new article and definition that was inserted in the statute. 

Now, the ICC is a very interesting institution, and its mere existence is high politics.Here, though, in this episode, time only permits me to mention a few overall points.

One of the many interesting features of the ICC is the principle of ‘complementarity’. What that essentially means is that, unlike other international criminal courts, the ICC cannot oblige states to refer its criminal proceedings to it. The individual states simply have the first shot at prosecution. So, under the ICC statute, the court will refuse a case if it is already being investigated or prosecuted by a state that has jurisdiction over the offense. It is only if that state is unwilling or unable, generally, to carry out the investigation or prosecution that the ICC enters the picture. And when that criteria is fulfilled must be evaluated on a case by case basis.

Another very noteworthy aspect of the ICC is the competence of the competence of the Office of the Prosecutor (OTP). Most importantly, the prosecutor may initiate an investigation on his or her own initiative if it gets the green light from a pre-trial chamber, and such investigations can be very controversial.

The prosecutor has, for example, started an investigation into alleged crimes committed in Afghanistan; also, crimes committed by the international forces that were stationed there. That decision was seen as a provocation in the United States, who wasn’t very critical of the Court from beginning, and the Court's decision made the Trump administration adopt sanctions on certain ISIS officials.

The third and last point I'll mention in this episode is that prosecution for international crimes not only occurs before international courts, but sometimes also before national courts. And this of course takes us back to the case against Al-Gharib, in Germany, that I mentioned in the introduction to this episode.

Because, as hopes for prosecuting offenders of the many horrendous crimes that have been committed in a civil war in Syria before the ICC seems fairly dim, there is still the likelihood that such crimes will be prosecuted before national courts. In fact, at present, the best prospects for bringing perpetrators of crimes committed in Syria to justice lie in Europe and the national courts there, such as the court in Koblentz.

In fact, it often makes fairly good sense that international crimes are prosecuted nationally. For one thing, there is often less political fuss around national prosecutions than international prosecutions. This, of course, is illustrated by all the politics that surround the ICC.Because in general, no one questions the legitimacy of national courts prosecuting international crimes.

Also, in contrast to prosecutions before international courts, national prosecutions are not limited to international crimes. The defendants can also be prosecuted for acts prescribe under the national laws of the state.

Throughout history,there have been thousands of national trials against individuals suspected of international crimes. Some of these national trials are very well-known such as the prosecution of Adolf Eichmannin Jerusalem, Israel, that I mentioned in an earlier episode of this podcast.

Recent examples include an example from May, 2016, when a Swedish court convicted a now Swedish national of genocide for participating in widespread massacres of Tutsis in the Rwanda genocide in 1994. The year after that, another Swedish court also prosecuted an individual for acts committed in the war in Syria.

The primary basis for prosecuting international crimes before national courts is the many conventions that apply states to criminalize and or prosecute certain international crimes before their national courts. And here, one must remember that the whole idea of these conventions is exactly to prevent possible offenders of international crimes from going unpunished.

 In most cases, the treaties require states to ensure that they assert prescriptive jurisdiction over certain offences on the basis of the principles of universal jurisdiction that I briefly examined in episode five of this podcast.