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. 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. 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).
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). Within academic literature sentencing practices have been heavily criticized but our empirical analysis shows that in fact sentencing is consistent and predictable.
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).
- Smeulers, A. (2008). Punishing the enemies of all mankind, Leiden Journal of International Law 21(4), 971-993. (read more)
- 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
- 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. (Ed.) (2010). Collective violence and international criminal justice: an interdisciplinary approach, Antwerp: Intersentia.
- 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
- Hola, B., Bijleveld C., Smeulers, A. (2011). Punishment for Genocide – Exploratory Analysis of ICTR Sentencing, International Criminal Law Review, 745-773 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
- 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)
- Smeulers, A. (2019). Why serious international crimes might not seem manifestly illegal to low-level perpetrators, Journal of International Criminal Justice 17(1), 105-123 read more.
- Smeulers, A. (2020). A criminological approach to the ICC’s Control Theory, in: J. Heller, F. Mégret, S. Nouwen, J. Ohlin, D. Robinson (eds.) The Oxford handbook of international criminal law, Oxford University Press.
Dutch core publications
- 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.