Comparison between ICTY, ICTR and SCSL

02-03

Here I offer some bullet points on jurisdiction, exercise of jurisdiction and cooperation with the courts.

I. ICTY and ICTR

A. Existencenof Jurisdiction

1. Jurisdiction ratione materiaen

The subject-matter jurisdictionnof ICTY and ICTR include genocide, crimes against humanity, war crimes (under both IAC and NIAC).

2. Applicable law

The statutes conflatesnjurisdiction with applicable law, but Secretary-General in his report to thenUNSC asserted that the ICTY will only apply rules of international law that are beyond any doubt part ofncustomary law (although in practice, this may not always be the case).

In addition to CIL, treatiesncan also be applicable.

(1) In Tadic, thenAppeals Chamber also confirms that the rules must be customary in nature, or ifnit belongs to treaty law, the required conditions must be met.

(2) In Tadic, the reason for this is to avoid violating nullum crimen sine lege. In relation to a treaty, at the time ofnthe commission of the crimes, the relevant state must be a party to thatntreaty.

(3) example: a bilateral treaty between Croatia and B-H undernthe auspices of the ICRC was considered an international agreement capable ofnfounding a crime under ICTY Statute.

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For ICTR, not necessarily CIL

(1) Secretary General explained that thencourt does not necessarily apply customary international law. For example,nviolations of Additional Protocol II were not considered crimes underncustomary law at the time of commission, but the ICTR can still exercisenjurisdiction based on Art. 4 of the Statute.

(2) Even include other instruments which may not considered sources ofnPIL in Art. 38 of ICJ Statute: eg. Kayishemanand Ruzindana, the court found the accused responsible based on annannouncement by RPF to the ICRC that it considered itself to be bound by thenrules of IHL.

3. Jurisdiction retione personae

They can exercise jurisdiction ratione personae only over natural persons and living persons

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4. Jurisdiction ratione temporis

ICTY』s temporal jurisdictionnstarts from 1 January 1991 and it is open-ended. It has jurisdiction overnoffences after the conflicts in between former Yugoslavia states, eg. allegednoffences during NATO Bombing Campaign in Kosovo are within its temporalnjurisdiction (as well as territorial jurisdiction)

B. Exercise of Jurisdiction

1. Immunity

(1) Art. 7(2) of ICTY Statute and Art.n6(2) OF ICTR Statute, which are a reproduction art 7 in Nuremberg Charter,nstate that official position shall relieve such person of criminalnresponsibility or to mitigate punishment. Although Nuremberg Charter originallynreferred to substantive criminal responsibility, the rules in ICTY and ICTRnStatutes are constantly being considered as relating to immunity.

(2) Unavailability of immunitiesnfrom jurisdiction can be an internationally wrongful act.

- But violations of internationalnlaw can be justified when they are under decisions by the UNSC as a Chapter VIInmeasure to maintain peace and security.

- According to Art. 25 of UNnCharter, such measures bind every UN member states.

- The power to waive immunitynalso derives decisions of UNSC.

(3) As regards to ICTR, innrequesting the establishment of the court, Rwanda manifestly waived anynimmunity which is benefited by its ex-officials.

2. Relations to National Criminal Jurisdiction

(1) Concurrency

- UNSGnreport: it is not the intention of the UNSC to preclude or prevent the exercisenof jurisdiction by national courts with respects to the acts.

- So ICTY and national courtsnhave concurrent jurisdiction.

- ICTY is designed to havenpriority over national jurisdiction.

(2) Primacy

- nArt. 9(2) of ICTY St and Art.n8(2) of ICTR St, ICTY and ICTR can require domestic courts to defer to theirncompetence (eg. to halt national investigation or prosecution)

- nIt bind every member state ofnUNSC, the power of which came from resolutions 827 and 955 of UNSC and Art. 25nof UN Charter.

(3) Non bis in idem

- nA general principle of lawncommon to most criminal jurisdictions : a person shall not be tried twice fornthe same offence.

- nArt. 10 of ICTY St and Art. 9nof ICTR St is about non bis in idem.

(a) No person shall be tried before a national court for actsnconstituting serious violations of international humanitarian law under the …nstatute for which he or she has already been tried by the .. tribunal.

(b) The binding force came from UNSC decisions and Art. 25.

(c) For converse scenario, the ICTY can exercise jurisdiction over actsnwhich have been tried at domestic level, if (a) the acts have been tried asnordinary crimes (2) the national proceedings were not impartial andnindependent, were designed to shield the accused from international criminalnresponsibility, or the case was not diligently prosecuted.

C. Co-operation with the Tribunal

1. Requests for assistance andnorders issued to UN members by the ICTY under article 29 and by ICTR under 28nof their respective statutes are binding.

2. the power derives from Art. 25 of UNnCharter and UNSC decisions.

3. Pursuant to rule 7bis of RPE ofnthe two courts, in case of non-compliance, the courts shall notify UNSC.

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II. SCSL

A. Jurisdiction

- nArt. 1(1) of the SCSL Statute,nthe court had the power to prosecute person who bear the greatestnresponsibility for serious violations of international humanitarian law andnSierra Leonean Law committed on the territory of Sierra Leone since 30 Novembern1996.

- nIt also has jurisdiction overntransgression of peacekeeper and related person in Sierra Leone, but thensending states remained primary jurisdiction over them.

1. Jurisdictionnratione materiae

- nArt 2 and 3 of Statute: Crimesnagainst humanity, violations of common article 3 and AP II

- nUNSG report: Applicablenincludes international as well as Sierra Leonean law.

n Not necessarily customary international law. Eg. conscription ofnchild soldier (but it was held by the Appeal Chamber to be one under CIL)

n Crimes under Sierra Leonean law.

2. Jurisdiction (personal, temporal, territorial)

- nThe court enjoys jurisdictionnover 『persons who bear the greatest responsibility for serious violations ofnIHL …』 (Art. 1)

- nThis is not a formal limitationnof personal jurisdiction but provides a guidance for the prosecution tonexercise its discretion in selection of the accused. (reiterated in Brima,nKamara and Kanu)

- nPersonal jurisdiction: at thenage of 15 at the time of the alleged commission of the crime l age of 18 at thentime of prosecution

B. Exercise of Jurisdiction

1. Immunity

- nSimilar rules like ICTY andnICTR and Nuremberg Charter (Art. 6(2))

n It was taken to abrogate immunities form jurisdiction from whichnstate officials taken before the court might otherwise benefit.

- nTaylor case:

n The accused is not entitled to immunity before the court.

n AC 『the principle seems to be established that the sovereignnequality of states does not prevent a Head of State from being prosecutednbefore an international criminal court or tribunal』 (this reasoning is flawed.)n

n That SCSL is an international tribunal does not have any implicationnon immunity.

n The Security Council adopted Statute of SCSL which is establishednbased on an agreement between UNSC and Sierra Leone. The adoption of thenstatute is not pursuant to a decision under Chapter VII. So it could notnlawfully deprive a right which otherwise would be enjoyed by a state underninternational law.

n That being said, Liberia waived the immunity in Taylor case.

2. Relationship with Sierra Leone Court

- nArt. 8(1) of SCSL Statute, itndoes not deprive the criminal courts of Sierra Leone of any jurisdiction theynmay have enjoyed over the same crime and same person.

- nArt. 8(2): SCSL enjoyed primacynover the courts of Sierra Leone.

- nArt. 9 : non bis in idem , samenwith ICTY and ICTR

C. Co-operation with the Special Court

- nArt. 17(1) SCSL: Sierra Leonenhas obligation to cooperate at all stages of proceedings.

n Art. 17(2) obligation to comply without undue delay with any requestnfor assistance by the court

n Eg. identification and location of persons, service of documents,narrest and detention of persons, and transfer of an indictee to the court

- nThird states have no obligationnto cooperate with the SCSL.

n Made clear by UNSG: it lacked the power to request surrender of annaccused from any third state ..

n But: UNSG suggested that the UNSC may wish to consider endowing itnwith Chapter VII powers for the specific purpose of requesting the surrender ofnan accused from outside the jurisdiction of the court.

è In one case, the UNSC decided the mandate of UNMIL to apprehend andndetain Charles Taylor. But this is not available all the time.

n The court can invite them to cooperate. Art. 8(c) of RPE.