Definition:

International criminal law

 While international law typically concerns inter-state relations, international
criminal law concerns individuals.
 International criminal law places responsibility on individual people, not states or
organizations—and proscribes and punishes acts that are defined as crimes by
international law.
 International criminal law generally refers to a body of law that addresses the
most serious crimes of concern to the international community, such as
genocide, war crimes, crimes against humanity, and the crime of aggression. It
aims to hold individuals, rather than states, accountable for these crimes.
The Prosecutor v. Stevan Todorović
Stevan Todorović, was Police Chief and a member of the Bosnian Serb Crisis Staff in
Bosanski Šamac, Bosnia and Herzegovina in 1992-1993. He persecuted non-Serb
civilians on political, racial and religious grounds. Over a period of eight months,
Todorović beat and tortured men, and ordered and participated in the interrogation of
detained persons ordering them to sign false statements. He issued orders and
directives that violated the rights of non-Serb civilians to equal treatment under the law.
Summary:
On 17 April 1992, the Serb forces gained control over the municipality of Bosanski
Šamac (Bosnia and Herzegovina). Following the takeover, they launched a series of
attacks aiming to remove the Bosnian Croat and Bosnian Muslim inhabitants from the
area. As a result, the Bosnian Croats and Bosnian Muslims were murdered, beaten,
sexually assaulted, deported and those who were unlawfully confined, were subjected
to various mistreatments. During this time, Stevan Todorović acted as the Chief of
Police in Bosanski Šamac (Bosnia and Herzegovina).
On 19 January 2001, Todorović pleaded guilty to the crime against humanity of
persecution, and, subsequently, the Trial Chamber entered a finding of guilt on the
same day.
Trial Chamber III balanced the gravity of the crimes, the aggravating and mitigating
circumstances in order to determine the appropriate sentence for Todorović. Trial
Chamber III considered that the offences perpetrated by Todorović were of serious
gravity, and the underlying cruelty of the commission was an aggravating factor.
Similarly, Todorović’s position as Chief of Police was further an aggravating factor. Trial
Chamber III also took the following mitigating circumstances into consideration:
Todorović’s guilty plea, his cooperation with the Prosecution, and his remorse
Case Concerning the application of the convention on the prevention and
punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and
Montenegro)
Summary:
On 20 March 1993, Bosnia-Herzegovina had instituted proceedings against Yugoslavia
(Serbia/Montenegro) in respect of a dispute concerning alleged violations of the
Convention on the Prevention and Punishment of the Crime of Genocide invoking
Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.
At the same time, Bosnia-Herzegovina had also submitted a request for the indication of
provisional measures under Article 41 of the Statute. By an Order dated 8 April 1993,
the Court, after hearing the Parties, indicated certain provisional measures with a view
to the protection of rights under the Genocide Convention. In a second order of 13
September 1993, the Court reaffirmed the measures indicated in its Order of 8 April
1993 but declined to order further- reaching injunctions requested by Yugoslavia.
Yugoslavia then raised preliminary objections concerning, respectively, the admissibility
of the Application and the jurisdiction of the Court to entertain the case.
Judgment on Preliminary Objections of July 11, 1996
With regard to the question whether the Genocide Convention was applicable as
between the parties, the Court considered – without deciding the question whether the
Federal Republic of Yugoslavia was identical with the former Socialist Federal Republic
of Yugoslavia – that the Federal Republic of Yugoslavia, had adopted a formal
declaration which expressed the intention of Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party and that it had not been
contested that Yugoslavia was party to the Genocide Convention.
The Court found that Bosnia-Herzegovina could become a party to the Convention
through the mechanism of State succession. Again without deciding whether Bosnia-
Herzegovina automatically became party to the Genocide Convention on the date of its
accession to independence on 6 March 1992, or whether it solely became a party as a
result of its notice of succession, the Court determined that at all events Bosnia-
Herzegovina was a party to the Convention on the date of the filing of its application.
The Court then turned to the point whether there was a dispute between the Parties that
falls within the scope of Article IX of the Genocide Convention. Noting that there
persisted between the Parties before it, "a situation in which the two sides hold clearly
opposite views concerning the question of the performance or non-performance of
certain treaty obligations", a legal dispute did indeed exist as between the two parties
before it.
The Court also considered that, irrespective of the nature of the conflict forming the
background to the dispute, the obligations of prevention and punishment which are
incumbent upon the States parties to the Genocide Convention remain identical. It
further noted that it could not, at this stage in the proceedings, settle the question
whether Yugoslavia took part in the conflict at issue, a question which clearly belongs to
the merits.
The Court also observed that Article IX does not exclude any form of State
responsibility, nor is the responsibility of a State for acts of its organs excluded by Article
IV of the Convention, which contemplates the commission of an act of genocide by
"rulers" or "public officials".
As to the issue of jurisdiction ratione temporis the Court observed that the Genocide
Convention does not contain any clause the object or effect of which is to limit in such
manner the scope of its jurisdiction ratione temporis. Accordingly the Court found that it
had jurisdiction in this case to give effect to the Genocide Convention with regard to the
relevant facts which have occurred since the beginning of the conflict which took place
in Bosnia-Herzegovina.
Judges Oda, Shi and Vereshchetin and judge ad hoc Lauterpacht added declarations to
the judgement. Judges Shahabuddeen, Weeramantry and Parra-Aranguren, in their
separate opinions, mainly discussed the question as to whether the Genocide
Convention is subject to the principle of automatic succession. Finally, Judge ad hoc
Kreca found that the relevant conditions for the entertainment of the case by the Court,
relating to both jurisdiction and admissibility, had not been met.
Sources of International Criminal Law
Article 21 Applicable law
1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and
Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and
rules of international law, including the established principles of the international law of
armed conflict;
(c) Failing that, general principles of law derived by the Court from national laws of legal
systems of the world including, as appropriate, the national laws of States that would
normally exercise jurisdiction over the crime, provided that those principles are not
inconsistent with this Statute and with international law and internationally recognized
norms and standards.
2. The Court may apply principles and rules of law as interpreted in its previous
decisions. 3. The application and interpretation of law pursuant to this article must be
consistent with internationally recognized human rights and be without any adverse
distinction founded on grounds such as gender as defined in article 7, paragraph 3, age,
race, colour, language, religion or belief, political or other opinion, national, ethnic or
social origin, wealth, birth or other status.
Genocide:
Art 2 Convention on the Prevention and Punishment of the Crime of Genocide
In the present Convention, genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Definition of Protected Groups
 National
 Ethnical
 Racial
 Religious groups
The Prosecutor v. Ignace Bagilishema (Trial Judgement)
In the first ICTR case where the defendant was acquitted on all charges, Ignace
Bagilishema, the former Bourgmestre (mayor) of Mabanza Commune, was indicted for
allegedly ordering attacks on Tutsis in Mabanza Commune, ordering the detention of
Tutsi refugees fleeing form violence, ordering the transfer of Tutsi refugees to locations
where they would later be killed, and ordering roadblocks preventing the flight of Tutsi
refugees. The prosecution charged Bagilishema with direct and superior responsibility
for genocide; complicity in genocide; crimes against humanity for acts of murder,
extermination, and other inhumane acts; and war crimes for acts of violence to life and
outrages upon dignity.
In 2001, an ICTR Trial Chamber acquitted Bagilishema on all charges after finding that
the prosecution did not prove beyond a reasonable doubt that Bagilishema was involved
in or had sufficient control over individuals engaged in the crimes for which he was
accused. Moreover, the Trial Chamber considered, on account of documentary
evidence provided by the defense, that Bagilishema had taken specific measures to
protect Tutsis during the massacres. In 2002, the Appeals Chamber dismissed all of the
prosecution’s grounds for appeal and upheld the Trial Chamber’s acquittal.

In this case, the International Criminal Tribunal for Rwanda (ICTR) addressed the
definition of "protected groups" within the context of genocide. The term "protected
groups" refers to specific groups that are safeguarded under the Genocide Convention.
Ethnical Groups or those people sharing a common cultural heritage, language, or
traditions. The ICTR focused on the Tutsi ethnic group, which was targeted during the
Rwandan Genocide. The tribunal examined whether the acts committed against the
Tutsis constituted genocide, considering them a protected group under the Genocide
Convention.

Case Concerning the application of the convention on the prevention and

punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and
Montenegro)
Summary:
On 20 March 1993, Bosnia-Herzegovina had instituted proceedings against Yugoslavia
(Serbia/Montenegro) in respect of a dispute concerning alleged violations of the
Convention on the Prevention and Punishment of the Crime of Genocide invoking
Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.
At the same time, Bosnia-Herzegovina had also submitted a request for the indication of
provisional measures under Article 41 of the Statute. By an Order dated 8 April 1993,
the Court, after hearing the Parties, indicated certain provisional measures with a view
to the protection of rights under the Genocide Convention. In a second order of 13
September 1993, the Court reaffirmed the measures indicated in its Order of 8 April
1993 but declined to order further- reaching injunctions requested by Yugoslavia.
Yugoslavia then raised preliminary objections concerning, respectively, the admissibility
of the Application and the jurisdiction of the Court to entertain the case.
Judgment on Preliminary Objections of July 11, 1996
With regard to the question whether the Genocide Convention was applicable as
between the parties, the Court considered – without deciding the question whether the
Federal Republic of Yugoslavia was identical with the former Socialist Federal Republic
of Yugoslavia – that the Federal Republic of Yugoslavia, had adopted a formal
declaration which expressed the intention of Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party and that it had not been
contested that Yugoslavia was party to the Genocide Convention.
The Court found that Bosnia-Herzegovina could become a party to the Convention
through the mechanism of State succession. Again without deciding whether Bosnia-
Herzegovina automatically became party to the Genocide Convention on the date of its
accession to independence on 6 March 1992, or whether it solely became a party as a
result of its notice of succession, the Court determined that at all events Bosnia-
Herzegovina was a party to the Convention on the date of the filing of its application.
The Court then turned to the point whether there was a dispute between the Parties that
falls within the scope of Article IX of the Genocide Convention. Noting that there
persisted between the Parties before it, "a situation in which the two sides hold clearly
opposite views concerning the question of the performance or non-performance of
certain treaty obligations", a legal dispute did indeed exist as between the two parties
before it.
The Court also considered that, irrespective of the nature of the conflict forming the
background to the dispute, the obligations of prevention and punishment which are
incumbent upon the States parties to the Genocide Convention remain identical. It
further noted that it could not, at this stage in the proceedings, settle the question
whether Yugoslavia took part in the conflict at issue, a question which clearly belongs to
the merits.
The Court also observed that Article IX does not exclude any form of State
responsibility, nor is the responsibility of a State for acts of its organs excluded by Article
IV of the Convention, which contemplates the commission of an act of genocide by
"rulers" or "public officials".
As to the issue of jurisdiction ratione temporis the Court observed that the Genocide
Convention does not contain any clause the object or effect of which is to limit in such
manner the scope of its jurisdiction ratione temporis. Accordingly the Court found that it
had jurisdiction in this case to give effect to the Genocide Convention with regard to the
relevant facts which have occurred since the beginning of the conflict which took place
in Bosnia-Herzegovina.
Judges Oda, Shi and Vereshchetin and judge ad hoc Lauterpacht added declarations to
the judgement. Judges Shahabuddeen, Weeramantry and Parra-Aranguren, in their
separate opinions, mainly discussed the question as to whether the Genocide
Convention is subject to the principle of automatic succession. Finally, Judge ad hoc
Kreca found that the relevant conditions for the entertainment of the case by the Court,
relating to both jurisdiction and admissibility, had not been met.

Key Findings:

1. Genocide Against Bosnian Muslims:

 o Protected Group: The ICJ recognized Bosnian Muslims as a protected
ethnical group under the Genocide Convention.
o Acts of Genocide: The court found that acts of genocide were committed
against Bosnian Muslims in Srebrenica in July 1995.

2. State Responsibility:
o Failure to Prevent Genocide: The ICJ concluded that Serbia failed to
prevent the genocide at Srebrenica, violating its obligations under the
Genocide Convention[2].
o Failure to Punish Genocide: Serbia was also found to have failed to
punish those responsible for the genocide.

3. No Direct Responsibility for Genocide:

o Direct Involvement: The ICJ did not find sufficient evidence to hold
Serbia directly responsible for committing genocide.
o Support to Perpetrators: However, Serbia was found to have provided
support to the perpetrators, which contributed to the commission of
genocide.