I- Nuremberg and Tokyo International Military Tribunals‍

Nuremberg International Military Tribunal for the prosecution and punishment of the major war criminals of the European axis/the Nuremberg Tribunal (IMT) was founded by the USA, France, Britain and the USSR, which were parties to the London Treaty dated August 8, 1945, in order to try the high-level military and political officials of the Nazi regime after the World War II. The prosecutors and judges of this court were also selected from among the citizens of the aforementioned Allied states.

During the Nuremberg trials between November 1945 and October 1946, 24 Nazi leaders were charged, 12 were sentenced to death penalty, 7 were sentenced to imprisonment, and 3 were acquitted. Adolf Hitler, Heinrich Himmler, and Joseph Goebbels could not be tried as they committed suicide before the war ended.

Crimes under the jurisdiction of IMT are listed as crimes against peace, war crimes and crimes against humanity. In the IMT Charter, which regulates the duties and powers of the Court, the killing, massacre, enslavement, forced labour, exile, persecution based on political, racial or religious grounds and similar inhumane treatment committed by the Nazis against the civilian population in the regions they occupied has been described as “crime against humanity”. Thus, for the first time, the category of “crimes against humanity” has been created in addition to conventional war crimes under the IMT Charter.

While defining crimes against humanity, the term “genocide” was not included in the text of the article, but in the IMT indictments, the term “genocide” was used when describing the acts related to people who were systematically murdered due to their belonging to a certain group yet ultimately, sentences were established against the defendants for crimes against humanity, not genocide.

With the Nuremberg trials, individuals were held responsible for committing crimes contrary to international law for the first time in history. In this context, the aforementioned cases constitute an important turning point in the development of international criminal law.

IMT that had an ad hoc (special) authority, and where trials were held collectively was a military court set up only to prosecute crimes committed during the World War II. As a matter of fact, during the negotiations of the Genocide Convention, some countries expressed various criticisms by stating that the Nuremberg trials were conducted by ignoring the basic principle of criminal law, which is the principle of “no crime and punishment without law”.

Although there are criticisms that it was “the justice of the victors” because only the Nazi war criminals were placed on the defendant chair, and that the court’s impartiality became questionable because the trials were only heard by the judges of the victorious states, the Nuremberg trials are considered to be one of the most important cases that left their mark on the history of the world.

For the first time, it was revealed with the Nuremberg trials that the actions of the Nazis had led to an unprecedented atrocity in history. Although these trials exposed all aspects of Nazi cruelty, the realization that the existing rules of law at the time were insufficient to fully describe this atrocity was also the factor that triggered the efforts to formulate a convention exclusively for the definition and punishment of the crime of genocide.

As a matter of fact, since the IMT Charter excludes “crimes against humanity” committed during the peacetime from its scope, it is stated in the Convention on the Prevention and Punishment of the Crime of Genocide dated 1948 (Genocide Convention) that genocide is a crime that can be committed both in times of peace and war.

The other ad hoc court created after the Second World War is the International Military Tribunal for the Far East (IMTFE), which was established in Tokyo. After Japan’s surrender notification dated September 2, 1945, the Tokyo Court, established on January 19, 1946, was authorized in terms of crimes against humanity, war crimes and crimes against peace. However, in the Tokyo trials, which mainly focused on war crimes and crime of aggression, no charges were made against the defendants for crimes against humanity.

Judges and prosecutors appointed by Australia, New Zealand, India, China, the Netherlands and the Philippines in addition to the USA, France, the United Kingdom and the USSR, also served in the IMTFE, 9 senior political leaders and 18 military leaders were tried while Emperor of Japan Hirohito and other members of the Royal family were not charged. In the trials between May 1946 and November 1948, all the defendants were found guilty and condemned to sentences ranging from capital punishment to 7 years in prison.‍

II- “Ad Hoc” International Criminal Tribunals for Rwanda and the Former Yugoslavia ‍

Due to the incidents in Rwanda and the Former Yugoslavia, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 and International Criminal Tribunal for Rwanda (ICTR) was established in 1994 by the resolution of the UN Security Council. ‍

A) International Criminal Tribunal for the Former Yugoslavia (ICTY)‍

Another important step in the punishment of war criminals at the international level was the establishment of the International Criminal Tribunal for the Former Yugoslavia.

The ICTY which was established by the UN Security Council’s Resolution No. 827 dated May 25, 1993, was authorized for the crimes against humanity such as genocide, wilful murder, torture, enslavement, and rape committed in the country of Former Yugoslavia from January 1, 1991 until the date when the incidents continued and in terms of violations of the 1949 Geneva Conventions and rules of the law of war.

The definitions in the 1948 Genocide Convention were exactly included in the ICTY Statute without any changes. The first genocide case decided by the court was the Goran Jelisić case. Jelisić, known as “Serbian Adolf”, was tried for the charges of genocide, murder, torture, crimes against humanity and war crimes. He was acquitted of the crime of genocide with the decision of the ICTY in 1999, but was found guilty on other charges and sentenced to 40 years in prison.

Radovan Karadžić, the former leader of the Bosnian Serbs who was captured in Serbia in 2008, was held responsible for the Srebrenica genocide and was sentenced to 40 years in prison for genocide, various war crimes and crimes against humanity in 2016. As a result of the trial held on the appeal of Karadžić, his sentence was converted to life imprisonment in 2019.

Ratko Mladić, nicknamed “Butcher of Bosnia”, who was the commander of the Serbian army during the Bosnian war and was held responsible for the Srebrenica genocide, the siege of Sarajevo and various war crimes, was captured in Serbia on May 26, 2011, 16 years after the arrest warrant made in 1996, and handed over to the ICTY. The court sentenced him to life imprisonment for genocide, crimes against humanity and war crimes in 2017. Mladić has appealed the decision and the trial process is still ongoing.

Former President of Yugoslavia Slobodan Milošević, who was on trial for war crimes and the Srebrenica genocide, was found dead in his cell in 2006 before his trial could be completed.

ICTY, which was active between 1993 and 2017, did not give a genocide decision about any defendant, except for the Srebrenica genocide.‍

B) International Criminal Tribunal for Rwanda (ICTR)‍

Following the reports of the experts assigned by the UN Security Council on July 1, 1994 that genocide was committed in Rwanda and that the humanitarian law was seriously violated, International Criminal Tribunal for Rwanda was established by the UN Security Council’s resolution numbered 955 and dated November 16, 1994.

The ICTR was empowered to prosecute genocide, crimes against humanity and war crimes. The authority of the Court in terms of place and time was arranged to cover the crimes committed between January 1, 1994 and December 31, 1994 in Rwanda. In addition, the Court has jurisdiction over Rwandan citizens who committed crimes specified in the ICTR Statute in neighbouring countries during this period.

Although the ICTR was established after the ICTY, when the jurisprudence of the two courts is compared, it is seen that the Rwanda Court has given more genocide decisions (Kayishema, Ruzindana, Serushago, Rutaganda, Musema, etc.) than the Former Yugoslavia Court.

As a matter of fact, the 1998 conviction decision of the ICTR against the former Mayor of Taba, Jean-Paul Akayesu, was the first international court decision applying the 1948 Convention, nearly half a century after the adoption of the Convention (the accused was sentenced to life imprisonment for the crime of genocide). With the aforementioned decision, it was also ensured for the first time that rape and other sexual assault crimes could incur the crime of genocide.

Ongoing files of ICTR and ICTY, which made significant contributions to the development of the jurisprudence of the genocide law, have been transferred to the International Residual Mechanism for Criminal Tribunals, which was established in 2010 by the UN Security Council’s resolution numbered 2010/1966 after they completed their term in 2015 and 2017 respectively.‍

III. International Criminal Court (ICC)

In the 20th century, the common characteristics of the Nuremberg, Tokyo, Yugoslavia and Rwanda Tribunals, where individuals were tried for international crimes, are that they are temporarily established to function within a limited period of time specific to a particular event.

The International Criminal Court is the first permanent international criminal court established by an international agreement. The Rome Statute, which forms the legal basis for the ICC, was adopted on July 17, 1998. The Statute entered into force on July 1, 2002, after the 60th instrument of ratification had been deposited to the UN.

The Rome Statute gives the Court jurisdiction in four categories of crime: war crimes, the crime of genocide, crimes against humanity, and aggression.

While regulating the crime of genocide in the Statute, the definition of the crime in the 1948 Convention was adhered to.

Only real persons who committed these crimes can be sued for crimes falling under the jurisdiction of the court in ICC as is the case in the previous ad hoc international courts. The jurisdiction ratione temporis of the ICC is limited to the crimes committed after the entry into force of the Rome Statute.

When it comes to the jurisdiction ratione temporis for a state that becomes a party after its entry into force, it will start from the date the State became a party, unless that state authorizes the Court for an act committed before this date. These matters are confirmed by the principles of “nullum crimen sine lege” (no crime without a law)” in Article 22 and “non-retroactivity ratione personea” in Article 24 of the Rome Statute.

The jurisdiction of the ICC, which was established to punish the most serious international crimes, is complementary to the jurisdiction of national courts, and the Court will be able to act only if the courts of states, where international crimes in its jurisdiction are committed or whose citizens are suspected of such crimes, are unwilling or unable genuinely to carry out the investigation or prosecution. On the other hand, the UN Security Council has the authority to refer a situation that is not under the jurisdiction of the Court to the ICC by taking a decision within the framework of Chapter VII of the UN Charter.

The UN Security Council used the authority granted to it to refer to the ICC for Sudan for the first time. Although Sudan is not a party to the Rome Statute, an investigation was launched at the ICC with UN Security Council resolution adopted in 2005 about the incidents that took place in the Darfur region.

Following the completion of the preliminary investigation, an arrest warrant was issued for the first time for a president in office (Sudan’s former President Omar al-Bashir) on March 4, 2009, in connection with war crimes and crimes against humanity allegedly committed in Darfur. A second arrest warrant was issued for al-Bashir on July 12, 2010, and “genocide” was included in the crimes that he was accused of. This investigation is the first investigation launched by the ICC into the crime of “genocide”.

The UN Security Council used this authority for the second time for Libya. Upon the incidents that broke out on February 15, 2011, the UN Security Council referred the situation in Libya to the ICC in line with the resolution dated February 26, 2011, and numbered 1970. Currently, three investigations have been launched by the ICC against five suspects related to crimes against humanity and war crimes allegedly committed in Libya. The arrest warrant issued for the ousted leader of Libya, Muammar Gaddafi, was withdrawn due to the death of the aforementioned on November 22, 2011.

In the ICC, the trial proceedings can commence when the Prosecutor launches an investigation, as well as the application of a State party to the Statute or the Security Council. In accordance with the Article 15 of the Statute, the Prosecutor may request information from states, UN bodies, intergovernmental and non-governmental organizations and other reliable sources in this framework.

In this context, ICC finally decided that the Court has jurisdiction regarding the deportation of the Rohingya in Myanmar, which is not a party to the Rome Statute, to Bangladesh, which is a party to the Rome Statute with the decision it took in 2019 about the ICC Prosecutor’s demand to launch an investigation and authorized the ICC Prosecutor to launch an investigation on the matter.

As of January 11 2020, 123 countries are party to the Rome Statute including 33 from Africa, 19 from Asia-Pacific, 18 from Eastern Europe, 28 from Latin America and the Caribbean, and 25 from Western Europe and other states.

There are 13 cases (Uganda, Democratic Republic of Congo, Darfur-Sudan, Central African Republic, Republic of Kenya, Libya, Ivory Coast, Mali, Central African Republic II, Georgia, Burundi, Bangladesh / Myanmar) that have been investigated by ICC.

IV. Extraordinary Chambers in the Courts of Cambodia (ECCC)

The Extraordinary Chambers in the Courts of Cambodia was established by the “Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Khmer Rouge)” dated July 23, 2001. With the agreement signed between the Government of Cambodia and the UN on June 6, 2003, ECCC became an UN-sponsored international court.

The Court of Cambodia, a mixed international court where Cambodian and foreign judges and prosecutors serve, has the jurisdiction to try the crimes committed in Cambodia between April 17, 1975, and January 6, 1979. The ECCC’s jurisdiction covers genocide, crimes against humanity, grave violations of the 1949 Geneva Convention, and violations within the framework of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as related offences in the Cambodian Criminal Code. In terms of the crime of genocide, the definitions in the 1948 Convention were predicated upon.

The jurisdiction of the ECCC in terms of individuals was limited to the senior leadership of the Khmer Rouge regime and those who were most responsible for committing the crimes of the regime between 1975 and 1979, while the lower and middle levels of the Khmer regime were exempted from the trial in order to ensure social peace.

In the Court of Cambodia, which became operational in 2007, an investigation was initiated against nine senior leaders of the Communist Party of Kampuchea (CPK). In this context, Nuon Chea, the deputy of Pol Pot, the leader of the Khmer Rouge, and Khieu Samphan, the chairman of the Central Committee of the Communist Party, were sentenced to life imprisonment in 2018 for committing genocide against the Cham Muslims and the Vietnamese minority living in Cambodia.

The defendants, whom the ECCC also found guilty of crimes against humanity and grave violations of the 1949 Geneva Conventions, have appealed the decision. Nuan Chea died in 2019 before the appeal process was completed, and the other defendant’s appeal case continues.