International Criminal Court

“ The second option—applying customary international law—comes with its own puzzles. If the briefing before us proves anything, it is that customary international law supplies no easy answer to the question whether a foreign sovereign enjoys immunity from criminal prosecution. ”

“ The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. ”

“ It merely fixes the responsibility for a crime, clearly established as such by positive law, upon its actual perpetrators. It fills a gap in international criminal procedure. There is all the difference between saying to a man: “You will now be punished for an act which was not a crime at the time you committed it”, and telling him: “You will now pay the penalty for conduct which was contrary to law and a crime when you executed it though, owing to the imperfection of international machinery, there was at that time no court competent to pronounce judgment against you.” ”

“ The Congress reaffirms its support for the efforts of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) to bring to justice individuals responsible for war crimes and crimes against humanity in a timely manner. ”

“ The people's court shall, based on the finding of facts in the judgment of the foreign court, issue an order on conversion of criminal penalty in accordance with the Criminal Law of the People's Republic of China. Where the nature and duration of the criminal penalty imposed by the foreign court conform to relevant provisions of laws of the People's Republic of China, the conversion shall be made according to the criminal penalty imposed by the foreign court and its duration. ”

“ It is seen that the Court must deal with de lege ferenda considerations on an ethical basis. But it must be proved that the members of the organizations are punishable, and “punishable” is equivalent to “criminal.”
In order to determine the factual elements, the judge brings evidence. As legislator, the Tribunal must collect the material for legislation. The judge can, on the basis of the legally proscribed criteria, easily determine what is relevant as proof of these criteria and what he therefore must admit as proof. ”

“ The Defense understand the decision of the Court of 14 January 1946 to mean that at this stage of the procedure the Defense should not produce detailed arguments against the Indictment as it has been lodged by the Prosecution and as it has been explained today, also against the concept of criminal organizations in the sense of the Charter or against other hypotheses of a declaration of criminality, but should only express their opinion on the question of what evidence is relevant and how the evidence shall be presented. ”

“ To apply the sanctions of the law to those whose conduct is found criminal by the standards I have outlined, is the responsibility committed to this Tribunal. It is the first court ever to undertake the difficult task of overcoming the confusion of many tongues and the conflicting concepts of just procedure among divers systems of law, so as to reach a common judgment. The tasks of all of us are such as to make heavy demands on patience and good will. ”

“ The people's court shall deliver the summon and a copy of the bill of prosecution to the defendant by means of judicial assistance as stipulated in the relevant international treaties or worked out diplomatically, or by any other means which is allowed by the law of the place where the defendant currently stays. ”

“ As far as these consequences for the members are concerned, it cannot be emphasized strongly enough that all the members of the groups and organizations will be affected directly by a declaration of criminality, insofar as by the verdict of the Tribunal it would irrefutably be established that they are accused of a crime, namely, the crime of having belonged to a group or organization which has been declared criminal. That this membership is a crime already follows clearly from Articles 10 and 11 of the Charter. ”

“ They are more nearly under investigation as they might be before a grand jury in Anglo-American practice. Article 9 recognizes a distinction between the declaration of a group or organization as criminal and “the trial of any individual member thereof.” The power of the Tribunal to try is confined to “persons,” and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. ”

“ Their offenses transcend the jurisdiction of the courts of any one nation. Their crimes were international in scope, and public indignation is also international. Even if any one nation might properly obtain jurisdiction over such an offender, it should yield to an international court to be created. Humanity could best express its dictates through such a forum. Nor is the least advantage from an international court the joining hands of all nations after the war to act concertedly in dealing out justice. ”

“ I believe that this is a very optimistic estimate, as our German courts will not be able to participate; it is well known that they are completely overworked since they have now only a small portion of their former personnel. Of these millions of cases, the courts will probably have to deal first with those of the most criminal nature. The accused, whose existence is at stake, will defend themselves during the subsequent trials with all legal means at their disposal. ”

“ The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.
The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime ”

“ Many persons will have no answers to charges if they are carefully prepared; and the proceedings should be expeditious, nontechnical, and held in the locality where the person accused resides, and, incidentally, may be conducted in two languages at most.
And I think it is clear that before any person is punishable for membership in a criminal organization, he is entitled to a hearing on the facts of his case. The Charter does not authorize the national authorities to punish membership without hearing—it gives them only the right to “bring individuals to trial.” ”

“ Good faith toward foreign powers, with which we have entered into treaties of extradition, does not require us to surrender persons charged with crime in violation of those well-settled principles of criminal procedure which from time immemorial have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defenses as others accused of crime within our own jurisdiction. ”

“ In addition to these fundamental objections to such a separation of the proceedings there is also an important technical objection. If the Tribunal passes a declaratory judgment against the organizations, as requested, all these millions of members of the organizations will automatically become outlaws pending the definite legal decision in the subsequent trials. Until that date every individual is under serious suspicion of being a criminal, since it is questionable whether he will succeed in exonerating himself in the subsequent trial. ”

“ That which is to be considered a group or an organization does not depend on the discretion of the Prosecution, as is also seen in Article 9, Paragraph 1, of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants. This can only be understood to mean that the membership of the organization must be influenced by the actions of one of the major defendants at a given time. However, this is not for the Prosecution but for the Tribunal to decide. ”

“ The fifth principle which I ask you to bear in mind, is that individual criminal responsibility of a defendant is imposed by the Charter not merely by reason of direct, immediate participation in the crime. It is sufficient for the Prosecution to show that a defendant was a leader, an organizer, instigator, or accomplice who participated either in the formulation or in the execution of a Common Plan or Conspiracy to commit Crimes against Peace. In the case of many of the defendants the evidence will show direct and immediate personal participation in the substantive crime itself. ”

“ The American Chief Prosecutor and the other chief prosecutors have cited a large number of precedents, even from German jurisprudence, in which organizations are said to have been declared criminal. In these precedents—and that is the decisive factor—the defendants convicted as criminals were always individual persons, never organizations as such. ”

“ History—very recent history—does not warrant the view that a state cannot be a criminal. On the other hand, the immeasurable potentialities for evil, inherent in the state in this age of science and organization would seem to demand, quite imperatively, means of repression of criminal conduct even more drastic and more effective than in the case of individuals. And insofar, therefore, as this Charter has put on record the principle of the criminal responsibility of the state, it must be applauded as a wise and far-seeing measure of international legislation. ”

“ That is what we are asking you to do with respect to the German organizations mentioned in the Indictment.
We are not asking you to condemn without having heard these men who, on the contrary, will be able to put forward their personal means of defense before a competent tribunal. We are asking you only to declare criminal, as was allowed by the French laws of 1936 and 1944, de facto groups without which it would have been impossible for one man in a few years to cause a great civilized nation to sink to the lowest depths of barbarity, the more hateful because it was scientific. ”

“ International law therefore intervenes in the definition of a war crime, not in order to give it essential qualification but in order to fix its outer limits. In other words, every infraction committed on the occasion or under the pretext of hostilities is criminal unless justified by the laws and customs of war. International law here applies the national theory of legitimate defense which is common to all codes of criminal law. ”

“ In the first place, the idea of the state, which according to the conception of traditional international law is the only bearer of rights and duties, is systematically destroyed so that the persons standing behind it and acting on its behalf may separately be made liable to criminal prosecution. Since as a rule only a few persons acted directly as participants in the acts charged, the multitude of these people is then again compressed into an artificial whole, in order to hold them responsible also for those acts which were not committed by them. ”

“ The Prosecution has deemed it necessary—indeed imperative—to establish beyond all possibility of doubt, at what may appear to be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactive law in the determination of the authors of the Charter to treat aggressive war as conduct which International Law has prohibited and stigmatized as criminal. ”

“ Noting the intention of the Secretary-General to submit the name of his nominee for the position of Prosecutor of the International Criminal Tribunal for the former Yugoslavia,
Decides, notwithstanding the provisions of article 16 (4) of the Statute, to extend for a final period the appointment of Ms. Carla Del Ponte as Prosecutor of the International Criminal Tribunal for the former Yugoslavia with effect from 15 September 2007 until 31 December 2007. ”

“ Even where dual criminality is not a prerequisite, a common conceptualization of what constitutes a crime assists the law-enforcement and judicial authorities of the country in undertaking investigations within its own territory on behalf of a foreign country; The harmonization of offences facilitates the harmonization of procedural law with respect to investigatory powers. 293. Much remains to be accomplished to achieve international cooperation. Most of the international work so far has been done in just a few regions of the world. ”

“ But a criminal procedure such as this one would have to deal most seriously with the organizations as such, as well as with all the members who are not indicted personally that is—I now refer to Law Number 10 of the Allied Control Council—would have to pronounce the most severe sentence, the sentence of death; such a procedure has never before in the history of jurisprudence been either discussed or applied.
The organizations under Indictment are organizations which differ greatly in their structure. ”