LEGAL CONCEPTS THAT INFORM THE IIIM’S WORK
In the context of the IIIM’s work, the most serious crimes refer to core international crimes of concern to the international community as a whole, including genocide, war crimes and crimes against humanity. In determining what are the most serious crimes, the IIIM also takes into account the views and priorities of victims/survivors of the events in Syria.
International law historically covers the body of rules that regulate the conduct of sovereign states in relation to each other. Aspects of international law concern the actions of individuals and their respective responsibilities.
There are various branches of international law, which are interlinked. Given its mandate, the IIIM is most concerned with international criminal law (ICL).
International criminal law is a body of international rules designed both to proscribe certain categories of conduct (e.g. war crimes, crimes against humanity, genocide, aggression) and to make persons who engage in such conduct criminally liable. These rules either authorise states, or impose upon them the obligation, to prosecute and punish such criminal conduct. ICL also regulates proceedings before international criminal courts and tribunals, for prosecuting and trying persons accused of such crimes.
ICL identifies various ways individuals can be held criminally responsible, other than for physically committing the crimes themselves. For example, a person can be held accountable for (non-exhaustive list):
- “co-perpetrating” – meaning to commit a crime jointly based on joint control
- “aiding and abetting” – meaning assistance or encouragement, with knowledge of the commission of the crime
- “ordering” – meaning a person in a position of authority instructing to commit a crime
- “planning” – meaning preparing or arranging for the commission of a crime
- “attempting” – meaning to take action to commence the crime without it occurring for other reasons independent of the person’s intention
- “inciting” – relevant for genocide, meaning inciting others directly or publicly to commit genocide
- “omitting” – meaning failing to comply with a legal duty to act
Additionally, individuals can be held accountable under command responsibility or superior responsibility, for the failure to prevent or punish the subordinates they command and control or have authority over in organised structural hierarchies. This applies to military leaders, those acting as such or other non-military officials who hold authority over subordinates.
International humanitarian law (IHL), also referred to as the law of war or the law of armed conflict, is the set of rules which seek, for humanitarian reasons, to limit the effects of warfare. IHL is part of ICL; breaches of its rules constitute war crimes.
International humanitarian law applies specifically to armed conflicts. It protects persons who are not taking part in fighting, such as civilians or medical and religious personnel as well as those who are no longer fighting or are unable to fight, such as prisoners of war or the wounded and sick. It also restricts the means and methods of warfare, prohibiting the use of certain types of weapons, and attacks that fail to discriminate between those who are and those who are not taking part in fighting.
International human rights law is the body of rules that protect certain rights held by individuals and groups. Human rights derive from treaties or custom and bind States (and under certain circumstances non-state actors), requiring them to put in place domestic measures and legislation compatible with their international obligations. Unlike international humanitarian law standards, human rights apply at all times, including during peacetime (although the content of some human rights, e.g. the right to life, is modified in times of armed conflict where International Humanitarian Law takes precedence).
When legal processes fail at a domestic level to address human rights abuses, mechanisms and procedures for complaints are available at regional and international levels to support implementation and respect for international human rights standards. ICL is also influenced by international human rights law, or to phrase it differently, the basic safeguards of a fair trial as well as the rights of suspects and accused persons, victims and witnesses.
Under international law, international crimes are not subject to any statute of limitations. This means that judicial proceedings can be started against perpetrators of such crimes regardless of how much time has passed.
Genocide is defined as an act committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group. This can be done through any of the following acts: killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births and forcibly transferring children of the group to another group.
Aside from the genocidal acts themselves being punishable under international criminal law, other prohibited conduct includes conspiracy, incitement, attempt and complicity to commit genocide, whether by rulers, public officials or private individuals. Genocide does not require a nexus to an armed conflict and so is punishable both during wartime and peacetime.
Crimes against humanity are specific crimes committed as part of a widespread or systematic attack directed against any civilian population. They can be committed as part of State policies, but can also be perpetrated by non-State armed groups or paramilitary/militia forces. Unlike war crimes, crimes against humanity do not require a nexus to an armed conflict and so are punishable whether committed during conflict or in peacetime. Unlike genocide, crimes against humanity are not necessarily committed against a specific group.
War crimes are violations of international humanitarian law that entail individual criminal responsibility under international law. This includes grave breaches of the 1949 Geneva Conventions and other serious violations of the laws and customs applicable in international or non-international armed conflicts.
In contrast to genocide and crimes against humanity, war crimes must be committed in the context of an armed conflict, either of an international or non-international character.
Gender-based crimes are those crimes committed against persons because of their sex and/or socially constructed gender roles. Gender-based crimes include sexual violence crimes but also non-sexual attacks on women and girls, and men and boys, because of their gender. Persons of diverse sexual orientations or gender identities suffer and can targets of crimes due to discriminatory gender norms.
Universal Jurisdiction is the principle that allows States to exercise jurisdiction over international crimes even when they are not committed in the State’s territory and the victims or suspected perpetrator are not nationals of that State. It is based on the idea that some crimes are so serious that they are a threat to the international community as a whole and therefore States have an obligation to investigate and prosecute suspected perpetrators even if there is no direct link between the crime and the prosecuting State. Given that it can provide access to justice for victims, universal jurisdiction is an important tool for ensuring the prosecution of serious international crimes.