A short history
The trials at Nuremberg and Tokyo marked the birth of an international criminal justice system. It was the very first time that individuals were held criminally responsible for the crimes they committed by an international criminal tribunal. Adolf Hitler, Josef Goebbels and Heinrich Himmler all committed suicide before they could be apprehended and thus managed to avoid being prosecuted and sentenced by the International Military Tribunal (IMT). Twenty-two other Nazi leaders including Herman Goering, Rudolf Hess and Albert Speer were indicted and charged with war crimes, crimes against humanity and crimes against peace and were tried at Nuremberg. They were not tried for genocide as the legal concept of genocide was not yet generally accepted. After the trial which lasted less than a year 3 suspects were acquitted and 19 suspects were convicted. Of those convicted 12 were sentenced to death, 3 were sentenced to life imprisonment while 4 others were sentenced to a determinate prison sentence (between 10 and 20 years). Six months after the Nuremberg trial started the Tokyo trial in which the Japanese leaders were prosecuted and sentenced started. This trial lasted 2.5 years and 25 suspects were convicted.
The crimes committed during the war in former Yugoslavia (since 1991) and the genocide in Rwanda (1994) led to the establishment of the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) by the United Nations Security Council. These two tribunals have prosecuted over 150 suspects. Amongst the people indicted are the most important leaders such as Milosevic (who died during the trial), Karadzic and Mladic (both currently on trial). These two tribunals have tried many cases maturing international criminal law into a fully developed field of law. On the 1st July 2002 the International Criminal Court (ICC) became operational and in 2012 Thomas Lubanga was the very first person to be convicted by this court. Lubanga was found guilty of recruiting and using child soldiers in the DRC. Next to these tribunals, international criminal courts and tribunals have been set up to try international crimes committed in Sierra Leone (since 1996), Cambodia (1975-1979), East Timor (1999) and Lebanon (2005).
Facts and figures
In our count in May 2012 the nine international criminal courts and tribunals had prosecuted 172 cases in which 250 judges and 23 chief prosecutors were involved. All together they have indicted 745 suspects of which 356 were actually prosecuted. Of these 281 were found guilty. 34 suspects were still on trial, while 22 suspects were still at large (in May 2012). Since the establishment of Nuremberg 19 suspects have been sentenced to death and of these 17 were actually executed (Bormann was sentenced in absentia and later turned out to have died before the trial started while Goering committed suicide the day before he was supposed to be executed). 45 suspects were sentenced to life imprisonment and 217 were given a determinate sentence of - on average - 15.3 years. Criminal procedures before an international criminal court or tribunal last on average 4.9 years and the chance to be convicted once prosecution has started is 87% (read more).
The convicted perpetrator is – on average – male (only 2 women were convicted so far), 40 years old and a member of a militarized unit and works for the state. Perpetrators of international crimes are generally considered to be enemies of mankind. International crimes are by definition forms and manifestations of collective violence. International criminal law is based on the concepts and principles developed in national criminal law. National criminal law however primarily deals with ordinary and common crime often committed by individuals or a small group rather than by large state authorities themselves. One might It consequently wonder whether international criminal law is sufficiently equipped to deal with forms and manifestations of collective violence (read more).
The sentencing practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) has been criticized as inconsistent. Barbora Hola who conducted her PhD research under my supervision empirically investigated the consistency of sentencing and concluded that legally relevant patterns have emerged in the sentencing practice of both tribunals. Sentencing in international criminal practice does not appear to be less consistent than sentencing under domestic jurisdictions (read more). The public prosecutor of the ICC Fatou Bensouda in the case against Katanga (link) and the ICC Appeal Chamber in the Lubanga case both referred to this work in relation to the discussion on the twe forms of gravity of the crime, namely in abstracto and in concreto (link).
The main aim of the International Criminal Court (ICC) is to prosecute the most seri¬ous crimes of concern to the international community. One of the most valued fea¬tures of the ICC is the independent position of the Prosecutor in selecting situations and cases to investigate. The Prosecutor, however, has been heavily criticized for his selection policy and countries from the African Union even threatened to withdraw from the ICC because of its alleged bias and unfair focus on African political leaders. All situations under investigation of the ICC are African cases. In our explorative study (co-authored by Maartje Weerdesteijn & Barbora Hola) we empirically evaluated the situations selection policy of the ICC Prosecutor. It turned out that indeed Africa is one of the major trouble spots in the world while at the same time unlike countries in Asian and South American, many African countries did sign and ratify the ICC Statute thus recognizing the jurisdiction of the ICC. The ICC can only investigate crimes within states which have ratified the statute or start an investigation when the UN Security Council on the basis of Chapter VII has referred the case to the ICC (which happened twice so far: the situations in Darfur and Libya). We thus concluded that given the ICC’s limited jurisdictional reach, the Prosecutor is generally focusing on the grav¬est situations where international crimes are supposedly committed (read more).
Prosecution of international crimes in the Netherlands
The Hague is generally considered the legal capital of the world and the Dutch government which hosts some of the most important international criminal tribunals such as the ICC and ICTY has taken the prosecution of international crimes by the Dutch national authorities very seriously. The Dutch international Crimes Act has entered into force on 1st October 2003. Since then 13 suspects have been prosecuted in 9 cases of which 7 are final. Two cases are currently still under appeal. The very first successful prosecution was against a Congolese torturer who was sentenced to 2,5 years of imprisonment in 2004. Three men who had allegedly been involved in torture in Afghanistan were also prosecuted: two of them were convicted while one was acquitted. Two people were found guilty for their role in the Rwanda genocide. Yvonne Basebya was sentenced to 6 years and 8 months while Joseph M. was sentenced to life imprisonment. There were also two Dutch businessmen – Van Anraat and Kouwenhoven – who were accused of having been involved with the regimes of Saddam Hussein in Iraq and Charles Taylor in Liberia respectively. Van Anraat had delivered chemicals which were later used in the gas attacks against the Kurds in Halabja and was found guilty and sentenced to 15 years imprisonment. Van Kouwenhoven initially received a prison sentence of 8 years and was then acquitted in appeal but the Dutch Supreme Court referred the case back to the court and thus this case is still ongoing. The last case which is still ongoing is against 5 people allegedly involved with the Tamil Tigers. Overall it can be concluded that the Dutch authorities have become very efficient in prosecuting cases and so far has a much better track record than the ICC. (read more)
- Smeulers, A., M. Weerdesteijn & B. Hola (2015). The selection of situations by the ICC: an empiricallyu based evaluation of the OTP's performance, International Criminal Law Review 15, p. 1-39. (read more)
- Smeulers, A., B. Hola & T. van den Berg (2013). Sixty-five years of International Criminal Justice – The Facts and Figures, International Criminal Law Review, 7-41. (read more)
- Hola, B., C. Bijleveld, A. Smeulers (2012). Consistency in international sentencing - ICTY and ICTR case study, European Journal of Criminology 9(5), 539-552. (read more)
- Hola, B., A. Smeulers, C. Bijleveld (2011). International Sentencing facts and figures: sentencing practice at the ICTY and ICTR, Journal of International Criminal Justice 9(2), 411-439. (read more)
- Hola, B., Bijleveld C., Smeulers, A. (2011). Punishment for Genocide – Exploratory Analysis of ICTR Sentencing, International Criminal Law Review, 745-773. (read more)
- Smeulers, A. (Ed.) (2010). Collective violence and international criminal justice: an interdisciplinary approach, Antwerp: Intersentia. (read more)
- Smeulers A. en B. Hola (2010). ICTY and the culpability of different types of perpetrators, in: Smeulers, A. (Ed.) Collective violence and International criminal justice: an interdisciplinary approach, Antwerp: Intersentia, pp. 175-206. (read)
- Smeulers, A. & W. Werner (2009). The banality of evil on trial, in: C. Stahn & L. van den Herik (Eds.) Future perspectives on international criminal justice, TMC Asser Instituut: Cambridge University Press, 24-43. (read more)
- Hola, B., A. Smeulers, C. Bijleveld (2009), Is ICTY sentencing predictable? An empirical analysis of ICTY sentencing practice, Leiden Journal of International Law 22(1), 79-97. (read more)
- Smeulers, A. (2008). Punishing the enemies of all mankind, Leiden Journal of International Law 21(4), 971-993. (read more)
Dutch core publications
- Smeulers, A. (2014). Betrouwbaarheid van getuigenbewijs in WIM-zaken, Strafblad 12(5), 354-364. (read more)
- Smeulers, A. (2014). Tien jaar Wet Internationale Misdrijven - een evaluatie, Delikt & Delinkwent 25, 267-290. (read more)
- Klip, A.H. & A. Smeulers (2004). Afrekenen met het verleden: de afdoening van internationale misdrijven, in: A.H. Klip, A.L. Smeulers en M.W. Wolleswinkel (red.), KriTies – Liber Amicorum et amicarum voor prof. mr. E. Prakken, Deventer: Kluwer 2004, 313-330.