Definition and Fundamentals of International Criminal Law
Das International Criminal Law is an independent field of law that deals with the prosecution and sanctioning of crimes with a cross-border dimension as well as particularly serious crimes that affect the international community as a whole. It combines elements of international and national criminal law and encompasses both substantive criminal law provisions and procedural rules that govern prosecution and enforcement.
International criminal law is divided into several sub-areas:
- International Criminal Law Proper (prosecution of crimes under international law)
- International Criminal Jurisdiction Law (determining the applicability of national criminal law to cross-border situations)
- International Judicial Cooperation in Criminal Matters
The aim of international criminal law is to enable effective prosecution across national borders, to prevent international impunity, and to protect international legal interests.
International Criminal Law Proper
Concept and Scope
Das International Criminal Law Proper governs the criminal responsibility of natural persons for certain most serious crimes under international law. The most important offenses are:
- Genocide
- Crimes against humanity
- War crimes
- Crime of aggression
Sources of International Criminal Law
The relevant sources of law are:
- International treaties and conventions, such as the Rome Statute of the International Criminal Court (ICC)
- Customary international law
- General legal principles recognized by states
Particular importance is attached to international court statutes (such as those for the tribunals for Yugoslavia and Rwanda) as well as UN resolutions.
International Criminal Courts
International Criminal Court (ICC)
The ICC in The Hague is a permanent international criminal court, responsible since 2002 for the prosecution of the above-mentioned international crimes.
Ad hoc Tribunals
This includes the International Criminal Tribunal for the former Yugoslavia (ICTY) and that for Rwanda (ICTR), which were established after specific conflicts and have since completed their work.
Other Special and Hybrid Courts
Examples include the Special Court for Sierra Leone or the Extraordinary Chambers for the prosecution of crimes under international law in Cambodia.
International Criminal Jurisdiction Law
Offense Elements and Objectives
Das international criminal jurisdiction law regulates the conditions under which a state applies its own criminal law to foreign cases or to acts committed abroad.
Principles of Criminal Jurisdiction
The key points of connection are:
- Territoriality principle: application of criminal law at the place where the act is committed
- Personality principle: application of criminal law to nationals who commit offenses abroad (active and passive principle)
- Protection principle: protection of specific national interests
- Universal jurisdiction principle: prosecution of certain crimes regardless of the place of commission and nationality (e.g., crimes under international law)
Example: Applicability of German Criminal Law
Sections 3 et seq. of the German Criminal Code (StGB) regulate the applicability of German criminal law to acts committed abroad pursuant to the above principles.
International Judicial Cooperation in Criminal Matters
Objectives and Instruments
The cooperation of states in the area of criminal justice serves the effective prosecution of cross-border crime. Important instruments are:
- Extradition (transfer of suspects for prosecution or execution of a sentence)
- Mutual legal assistance (e.g., taking of evidence abroad)
- Assistance with the enforcement of sentences (enforcement of foreign criminal judgments)
- International search measures (e.g., through Interpol)
Multilateral and bilateral agreements
International cooperation is based on international treaties, including:
- European Extradition Convention
- United Nations Convention against Transnational Organized Crime (UNTOC)
- International legal assistance treaties
In the European area, the Framework Decision on the European Arrest Warrant ensures a simplified and expedited surrender of persons.
Distinction and Relationship to Other Fields of Law
International criminal law must be distinguished from public international law as well as from national criminal law. It is closely linked to the protection of human rights, international humanitarian law and extradition law.
Development and Significance
International criminal law has gained significant importance in recent decades, especially through the establishment of international criminal courts and the international condemnation of the gravest crimes. It contributes significantly to combating impunity and enforcing global legal standards.
Literature and Further Information
- Cassese, Antonio: International Criminal Law (standard work on the doctrine of international criminal law)
- Ambos, Kai: Internationales Strafrecht, Handbook
- International Committee of the Red Cross (ICRC): Overview of international humanitarian and criminal law
- Website of the International Criminal Court: www.icc-cpi.int
Summary
International criminal law regulates the prosecution and punishment of cross-border and international crimes. It includes international criminal law, international criminal jurisdiction law, as well as international crime prosecution and cooperation. In a globalized world, its importance for the enforcement of international law and the protection of fundamental legal interests has steadily grown.
Frequently Asked Questions
What role does the principle of universality play in international criminal law?
The principle of universality is a central concept in international criminal law. It provides that certain particularly serious crimes, such as genocide, war crimes, crimes against humanity, and torture, can be prosecuted and punished by any state, regardless of where they were committed, by whom, against whom, and whether there is a direct connection to the prosecuting state. This principle constitutes an exception to the territoriality and personality principles otherwise applicable under international law. In practice, its implementation varies greatly from state to state; often, its application is subject to further conditions, such as the presence of the perpetrator in the state’s territory or the absence of prosecution in the state where the crime was committed. Nevertheless, the principle counteracts worldwide impunity for the gravest human rights violations and contributes to the enforcement of international law. International agreements, such as the Convention against Torture, even explicitly oblige contracting states to exercise universal jurisdiction in the case of serious international crimes.
What is the relationship between national criminal proceedings and the International Criminal Court (ICC)?
The relationship between national criminal proceedings and the International Criminal Court is characterized by the principle of complementarity. Accordingly, each state is primarily responsible for prosecuting and punishing international crimes itself. The ICC acts only if a state is evidently unwilling or unable to genuinely conduct the prosecution. In practice, this means that national law enforcement authorities have priority and international prosecution is subsidiary. Direct action by the ICC requires that national investigations and proceedings either do not take place, are insufficient, or are used deliberately to shield perpetrators from prosecution. This is determined by a comprehensive ‘admissibility test.’ The complementarity system is intended, on the one hand, to preserve state sovereignty and, on the other, to prevent international impunity.
How are international arrest warrants enforced in Germany?
International arrest warrants, especially those of the International Criminal Court, can be executed in Germany through extradition and mutual legal assistance procedures. The legal basis for this is provided by international law (such as the Rome Statute) as well as national implementing legislation, such as the IStGH Act. The execution of an international arrest warrant requires close cooperation between German law enforcement authorities, the Federal Foreign Office, and the Federal Office of Justice. Upon receipt of a request, it is examined whether there are legal obstacles, such as the existence of political offenses or the risk of the death penalty. Fundamental rights of the affected person and procedural guarantees must be observed. In practice, a judicial review of the requirements is carried out. The enforcement of detention or extradition is usually carried out by the justice authorities of the federal states. International mutual legal assistance thus plays a central role in the effectiveness of international prosecution in Germany.
What significance do immunities have in international criminal law?
Immunities, particularly of heads of state, government members, and diplomats, are a significant special feature in international criminal law. They are intended to ensure that the exercise of state functions is not unlawfully hindered. A distinction is made between functional immunity for official acts (immunity ratione materiae) and personal immunity during the term of office (immunity ratione personae). While functional immunity continues after leaving office, personal immunity ends with the departure from office. The problem is that international criminal courts, such as the ICC, may expressly exclude immunities to ensure the prosecution of the gravest crimes (Art. 27 ICC Statute). By contrast, national courts are generally bound by international law immunities, especially toward incumbent foreign heads of state. The tension between criminal prosecution of the gravest crimes and the need for international stability remains a central issue in international criminal law.
Who is authorized to conduct prosecutions in international criminal proceedings?
Various actors are authorized to prosecute in the international context. Foremost is the state, which acts either through its own courts or special statutory bodies. In addition to states, international criminal courts, such as the International Criminal Court (ICC), ad hoc tribunals (like the former Yugoslavia tribunal) as well as, in special cases, hybrid courts (composed of national and international elements) have prosecution competence. The jurisdiction of international courts is established either by international treaties (e.g., the Rome Statute) or by United Nations Security Council resolutions. National law enforcement agencies, however, generally remain primarily responsible unless the complementarity principle applies. An individual right of prosecution by private persons is fundamentally excluded—they may only file complaints or participate as auxiliary parties.
What procedural guarantees apply to defendants in international criminal law?
Defendants in international criminal law are also subject to numerous internationally recognized procedural guarantees ensuring a fair trial. These include, in particular, the right to a fair and public trial, the right to legal representation, the right to translation, the right to be informed of the charges, the right to silence, the right to defense, and the right to appeal a conviction. These guarantees are partly derived from international human rights treaties (such as the ECHR), partly from the statutes of the international courts themselves (e.g., Art. 67 ICC Statute). Special features in the international context arise due to more difficult investigative conditions, examination of witnesses abroad, or, where applicable, complex legal requirements regarding the official language and translation. Compliance with these rights is usually strictly monitored by international courts.
