War Crimes Law Comes of Age: Essays

By Theodor Meron | Go to book overview

CONCLUSION

Once internal atrocities are recognized as international crimes and thus as matters of major international concern, the right of third states to prosecute violators must be accepted. Typically, these would be offenses of such significance that the international community would have an important interest in prosecuting the violators, especially when the criminal justice systems of the state where the offenses were committed and/ or the state of nationality have failed to act. Many serious violations of common Article 3 and Geneva Protocol II, as well as other significant norms of the Geneva Conventions, though not explicitly listed as grave breaches, are of universal concern and subject to universal condemnation. These are crimes jure gentium and therefore all states have the right to try the perpetrators. This right can be seen as an analogue, mutatis mutandis, of the prerogative of all states to invoke obligations erga omnes against states that violate the basic rights of the human person.119

The ad hoc Tribunals for Yugoslavia and Rwanda have concurrent jurisdiction with national courts, but have primacy over them. These international tribunals may request that national courts defer to their competence, subject to the principle of non bis in idem. Otherwise, the establishment of the ad hoc international criminal Tribunals for Yugoslavia and Rwanda does not affect the right or duty of states, as the case may be, to prosecute those who violate international humanitarian law.120

____________________
119
Barcelona Traction, Light & Power Co., Ltd. ( Belg. v. Spain) (New Application), 1970 ICJ REP.3, 32 (Feb. 5).
120
Yugoslavia Statute, supra note 8, Arts. 9-10; Rwanda Statute, supra note 7, Arts. 8-9; International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 [ Yugoslavia Tribunal], Rules of Procedure and Evidence, UN Doc. IT/32/ Rev. 3 ( Jan. 30, 1995); Yugoslavia Tribunal, Application [by the Prosecutor] for Deferral by the Federal Republic of Germany in the Matter of Dusco Tadić, Case No. 1 of 1994 ( Nov. 8, 1994); Decision of the Trial Chamber in Case No. 1 of 1994, IT-94-1-D ( Nov. 8, 1994); Yugoslavia Tribunal, Application by the Prosecutor for a Formal Request for Deferral by the Government of Bosnia and Herzegovina of Its Investigations and Criminal Proceedings in Respect of Radovan Karadzić, Ratko Mladić and Mico Stanisić ( Apr. 21, 1995), Decision by the Trial Chamber in Case No. IT-95-5-D ( May 16, 1995); and, concerning the Lasva River Valley Investigation, Decision by the Trial Chamber in Case No. IT-95-6-D ( May 11, 1995).

Regarding the relations between national courts and the proposed international criminal court, see Report of the International Law Commission on the work of its forty-sixth session, supra note 16, at 129-38, Arts. 51-58.

The United States expressed the concern that the statute adopted by the ILC does not adequately reflect the principle that the jurisdiction of the proposed international tribunal should be complementary to the national criminal justice systems. U.S. Comments, supra note 82, paras. 6-14. The United States proposed that the state of nationality, or any other state actively exercising jurisdiction, should have preemptive rights of jurisdiction in relation to the proposed international tribunal. Id., para. 68.

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