Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal negligence may be imposed on a person in a position of authority who knew, or had reason to know, that his or her subordinates were about to commit a war crime, and who failed to take whatever action was necessary and reasonable to prevent, to deter, or to repress its commission. The same liability must hold for failure to prosecute those who commit such offenses. Will nations unilaterally agree to such liability? If not, are they liable pursuant to customary international law or general principles? Who or what institution will be able to impose this liability on them?
A permanent tribunal challenges the sovereignty of the individual member-states of the United Nations.
Crimes under international law and those under domestic law are not mutually exclusive. The jurisdiction of any international criminal tribunal would be co-extensive in some areas with domestic courts. Under certain circumstances, for example, murder may be a crime under both domestic and international law. While a permanent international tribunal would be unlikely to pursue ordinary killings falling within domestic jurisdiction, the extent to which it theoretically could do so—and therefore the amount of discretion left to it to determine its own jurisdiction—would depend on whether and to what extent the court's subject matter jurisdiction was specifically limited. For example, the statute creating the Ad Hoc Tribunal for Crimes Against Humanitarian Law in the Former Yugoslavia (hereafter, the “Ad Hoc Tribunal”) purports to limit that tribunal’s jurisdiction. Nevertheless, the statute appears to have expanded the scope of humanitarian law, which traditionally followed the Hague and Geneva rules, by adding some crimes not included in the Hague and Geneva Conventions. By expanding the definition of humanitarian law, the scope of the tribunal’s subject matter jurisdiction has also expanded.
18 Fletcher F. World Aff. 77 (1994).
Blakesley, Christopher L., "Obstacles to the Creation of a Permanent War Crimes Tribunal" (1994). Scholarly Works. Paper 327.