Principles of ICL

Contents
Introduction......................................................................................................................................1

Bases of Jurisdiction........................................................................................................................4

Statutory limitations.........................................................................................................................4

Ne bis in idem..................................................................................................................................6
Introduction
A sound legal system is one which not only deals with the specificities of law but lays down a
coherent and general ambit of the basics or fundamental principles which are universally
accepted. Hence there should be a general part and a specific part in any legal system whether it
is a national legal system or a multinational system such as International Criminal Law. Thus
International Criminal Law should have or must consist of a general part determined by a set of
general principles and rules valid for all crimes of international nature or should categorize
crimes which will be governed by these principles.

The ‘general part’ of a national legal system is a result of analytical and theoretical abstraction. It
conceptualizes common attributes of specific crimes and development of basic foundational
political-cultural-rational principles which are the pillars of the legal system for example, legality
of the provisions, the concept of retribution, culpability, etc.  

But the scenario in international criminal is different when compared to national legislation. That
is because the development of international criminal had taken place as a system to punish the
losers of a war and hence it was more nation state centric than providing for an international
system. This led to formation of what we today know as indirect system of enforcement, in
which national systems govern the trial and provide for sentences accordingly. The punishment
is then based upon the national legal system which is based on both substantive and procedural
aspect. Hence the general part of international criminal law did not develop.

This system prevailed up until now after which there was a consensus in the international
community that there needs to be a general part of international criminal law. This was necessary
so that justice could be achieved and there could be a fixed enforcement mechanism could be
established so that the criminals are put behind the bar. This new system or direct system
comprised of adjudicating bodies, exercising at international level, all the activities which can be
associated with adjudication of international crimes. This includes investigation of the case, trail
proceedings, if found guilty sentencing sanctions, and enforcing the sentenced sanctions.

This system wherein certain elements of direct as well as indirect are being borrowed not only
encourages the development of the general part of international criminal law but also establishes
a permanent international adjudicating body. The shortcoming of this system is that even after a
permanent international adjudicating body is being set up, the body is still heavily dependent on
the cooperation which is extended by nation states in terms of  arresting and presenting of
accused persons, providing necessary assistance to the court and enforcing the sentences of the
adjudicating bodies.

The direct system of international law was put into force in the early tribunals such as the
international military tribunal of both Nuremberg and Tokyo, whereas the International Criminal
Tribunals for the former Yugoslavia and for Rwanda are instances of the mixed system of
enforcement.

Even though there has never been consistency in international law regarding the enforcement
mechanism, the essential contribution fo these tribunals is the awareness which has been created
for creation of a general part of international criminal law. This awareness will  act as a guiding
toll for all the coming court, be it temporal or permanent, with foundational principles of
punishment and responsibility.

As I have already stated that the earlier tribunals played a pivotal role in providing guiding
principles. The timeline of this can be traced back to the Charters of the International Military
Tribunals at Nuremberg (1945) and Tokyo (1946). These charters clearly are the magna charters
of international criminal law, as what was enumerated in those charters were reiterated in the
statutes of both International Criminal Tribunal of Rwanda and Yugoslavia respectively.

But these tribunals were not pure adaptation of their predecessors  but were an improvised
version of them. That is though these tribunals borrowed the ambit and nature of crimes from the
jurisprudence which evolved in these trials, the elements of criminal responsibility and the
circumstances excluding such responsibility were borrowed from different criminal justice
systems around the globe. From this as the starting point these tribunals have developed legal
principles form the case laws which appeared before them and hence created the general part of
international criminal law. This contribution, however, is potentially in conflict with the
principle of legality. This contention is based on two grounds, the first that the principles which
are identified by the tribunal are post ante or are developed after the commission of a crime.
Essentially a person might commit a crime not being aware about the existence of the crime. And
secondly, as the various national systems on which the Tribunals rely sometimes define these
principles differently, contradictions may arise.
Bases of Jurisdiction
A State exercises jurisdiction within its own territory. Such jurisdiction includes the power to
make law, to interpret or apply the law, and to take action to enforce the law. While enforcement
jurisdiction is generally limited to national territory, international law recognizes that in certain
circumstances a State may legislate for, or adjudicate on events occurring outside its territory.

A number of principles have been invoked as the basis for extraterritorial jurisdiction. These
include:· the nationality or active personality principle which is acts that have been committed by
people having the nationality of the forum State, the passive personality principle which is those
acts that are committed against nationals of the forum State or the protective principle which is
acts affecting the security of the State.

"Universal jurisdiction is the assertion of jurisdiction over offences regardless of the place where
they were committed and the nationalities of the perpetrator or of the victims. Universal
jurisdiction is held to apply to the core international crimes, namely war crimes, crimes against
humanity and genocide, whose repression by all States is justified or required as a matter of
international public policy and by certain international treaties."1

Statutory limitations
There are two aspects of legal proceedings time barring or a statutory limitation of a legal action
may apply to:

1) There is always a time limit to prosecution. If a breach of duty has been committed and a
certain time has elapsed since, statutory limitation could apply.
2) In certain cases, the limitation could apply to sentencing in criminal cases. If certain time
had lapsed since the commission of a crime, the period of limitation can prevent
sentencing.

1
Advisory Service Factsheetentitled “Universal jurisdiction overwar crimes”.
Legal systems around the world usually distinguish minor and major crimes and the application
of statutory limitations to them. For serious crimes, usually, limitation does not apply. This
distinction further varies in common and civil law countries. In civil law countries, certain
heinous crimes do attract a period of limitation unlike in common law countries.

However, the time-barring of penalties in criminal proceedings is rare and where it does exist,the
time bars are generally excessively long for some seriousoffences and mostly, do not even apply
for certain types of offences or in cases involving serious repeat offenders.

1. International criminal law does not provide for statutory limitations

The most important International Conventions like the Geneva Convention and its four
additional protocols are not elaborate on limitation on crimes. Non-Applicability of statutory
limitations to certain category of crimes against humanity and war crimes applies to both,
prosecution and in application to sentences. These crimes include genocide, apartheid etc.
Statutory limitations are retroactively effective, insofar as it abolishes time bars that had
previously been established in consonance with any of the existing laws. Further, Art. 29 of the
Rome Statute of the International Criminal Court(ICC) states that statutory limitations does not
apply to war crimes, crimes against humanity, genocide and for other crimes of aggression.

There are several factors that help project to the forefront crimes against humanity, customary
nature of war crimes, humanity and lack of applicability of statutory limitations to such offences:

 Many states have expressly provided for non-applicability of limitation to such offences
in their respective penal statutes.
 Art.29 of the ICC Statute has codified this principle for the reason of preventing impunity
to such offences.
 Many countries have become signatories to the United Nations Convention and the
Convention of Europe which enshrine this principle.

Nullumcrimen, nullapoenasinelege (“No crime without law”)

The principle of legality is inextricably linked with the principle of specificity, the principleof
non-retroactivity, and theprohibition of analogy. Non-retroactivity principle prohibits
retrospective application of a particular law. Theprinciple of specificity requiresthat the
definition of theproscribed act be sufficientlyprecise, while the prohibition ofanalogy requires the
definitionto be strictly construed.

Ne bis in idem
When it comes to punishment for crimes, a person who has already been tried and punished for a
crime cannot be tried and punished again for the same crime and this is the principle that is
enunciated by the Latin maxim Ne bis in idem. This principle sees to it that there is fairness for
the parties affected by the decision and that there is no arbitrariness or prosecution based on ill
intentions at both domestic level as well as international level. This principle also strives to see
to it that the investigations as well as the prosecutions are carried out in a careful and proper
manner. One thing that is important to understand and note is the fact that the definitive
application of the principle of ne bis in idem at the international level is on the basis of its
formulation in the relevant statutes of the International tribunals. The example of the statutes of
International Criminal tribunal for the former Yugoslavia(ICTY) and the International Criminal
Tribunal of Rwanda can be taken where it provided that the persons involved in the crimes will
not be tried by the national courts after they have been already tried by the tribunals and it also
stated that under certain circumstances the international tribunal may try a person who has been
tried by a national court.

When it comes to International Criminal Court Statute, the principle of ne bis in idem is a bit
different. So the International Criminal Court statute states that a person can be tried by the
national court of the country for conduct which already constituted the basis of a conviction by
the International Criminal Court.

FORMS OF CRIMINAL RESPONSIBILITY

International Criminal Law imposes various kinds of liability on the perpetrators of law and
attribution of such liability will play a crucial role in ensuring that such personnel are not left at
the mercy of anyone and cannot evade the eyes of the law. The principles governing
International Criminal law has, over a period of time accumulated the rationales of attributing the
following kinds of liability to the human rights violators.

 Individual criminal responsibility

As the name itself signifies, individual criminal responsibility imposes criminal liability on an
individual not only for the commission of a crime, but also for instigating, aiding or abetting any
International crime that is recognised by the Rome Statute or any other ad hoc criminal
adjudicatory bodies present in International law. Individual liability is mainly imposed on such
persons who have carried barbaric acts endangering the lives of people on their own volition and
without the command/direction of any other authority.

 Command responsibility

Principles of International Criminal Law or International Humanitarian Law can be violated not
only due to an inadvertent act of an individual/ an organization but also from their failure to act
promptly under a given circumstance. An omission may also lead to violation of International
Criminal Law and this is the underlying principle behind command responsibility. Command
responsibility usually imposes obligation upon superintendents/ higher officials of a sovereign
State which would most probably be armed forces, for unleashing activities that violate the
principles of International Criminal Law.2

IMMUNITY FROM INTERNATIONAL CRIMINAL RESPONSIBILITY

2
For more information, please refer to the Advisory Service Factsheet entitled “Command responsibility and failure
to Act”.
The ever expanding horizons of International Criminal Law were viewed as a threat to the very
existence of state sovereignty. Hence, the concepts of immunities from criminal liability came
into being. Immunities basically exempts the wrong doers from any criminal responsibility.
Though it is seen as serious obstruction on the enforcement of International Criminal Law, the
general view is that such immunities are required especially in the light of foreign diplomatic and
administrative exigencies. International Criminal Law confers two kinds of immunities from
International Criminal Responsibility. Namely- Personal immunity and functional immunity.

• Personal immunity protects the acts of persons essential to a State’s administration, whether in
their personal or official capacity, for the duration of their term in office. • Functional immunity
protects official acts of State representatives carrying out their functions for the State and
continues to protect those acts after the end of their term in office.

International Criminal Law explicitly recognizes immunity from Criminal liability. All major
statutes and International covenants that deal with the protection of International Criminal Law
provides a provision that grants immunities both functional and personal.(Art. 7(2), ICTY
Statute; Art. 6(2), ICTR Statute; Art. 27(1), ICC Statute). Of all the International instruments, it
is only the ICC statute that excludes personal immunity for the commission of International
crimes. Article 27(2)