International criminal jurisdiction
Ever since World War II, the international community has moved increasingly toward the development of a system of international jurisdictions, complementary to that of domestic courts, to try people accused of genocide, war crimes and crimes against humanity. Such system is mainly two-fold: on one hand it relies on the establishment of ad hoc and other internationalized tribunals set up after a conflict; on the other, it counts with the newly created International Criminal Court.
In the wake of World War II, the victorious powers set up criminal tribunals in Germany and Japan to try war crimes committed during the hostilities against civilians and allied combatants. Despite reservations about the victors taking such an initiative, the horrific nature of the crimes committed, in particular the mass-killings of Jews and other minorities, meant that there was wide public support for the trials.
Unlike previous wars, almost half the victims of World War II were civilians. As a result, in August 1949 the international community also actively supported extending the scope of IHL, mainly via treaty law, to cover civilians more effectively.
The ICRC welcomed both the development of international humanitarian law through the adoption of the four 1949 Geneva Conventions and the establishment of the obligation to exercise universal jurisdiction against grave breaches found therein, as a means to deal with the challenge of impunity for war crimes.
Almost five decades later, the end of the Cold War and new conflicts in Europe and Africa, which caused hundreds of thousands of civilian victims, convinced the Security Council of the United Nations to consider the necessity of establishing ad hoc international criminal tribunals once more.
The armed conflict in the Balkans led the UN to set up an international criminal tribunal in The Hague, the Netherlands, to try those accused of war crimes, genocide and crimes against humanity. Most famous among the accused was the former president of Yugoslavia, Mr. Slobodan Milosevic.
Soon after, the UN also established a tribunal in Arusha, Tanzania, to punish violations of IHL and other international crimes committed in Rwanda in the early 1990s.
Since then, special courts have also been set up to prosecute domestic and international crimes. Examples of such mixed tribunals can be found in Kosovo, Bosnia Herzegovina, East Timor, Sierra Leone, Cambodia, and most recently in Lebanon.
These international (and mixed) criminal tribunals may contribute to the development and clarification of international humanitarian law and human rights law. They may strengthen respect for IHL by providing justice for victims and may also act as a deterrent in future armed conflicts and, by establishing the truth of what happened during a conflict, contribute to reconciliation and reconstruction.
The decision by the international community in 1998 to establish the International Criminal Court also attempted to address these concerns, providing a means for taking up cases that States are unable or unwilling to prosecute.