International crimes are primarily intended to be prosecuted at the domestic level. Although the 1948 Genocide Convention foresaw a possible ‘international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’ the International Criminal Court regime, through its system of complementarity, clearly sees national courts as the courts of first resort.
This has been described as an ‘indirect enforcement system’ whereby international criminal law is to be enforced through
national systems. National prosecutions are not only the primary vehicle for the enforcement of international crimes, they are also often considered a preferable option – in political, sociological, practical and legitimacy terms – to international prosecutions.
But although the world vowed after the Second World War never again to allow such atrocities to occur, they continue to be committed in many places around the world and domestic prosecutions are sparse. Indeed, the international criminal jurisdictions are an answer to the impunity that generally exists domestically.
War crimes have been regulated in domestic law the longest and have been prosecuted most often. Early examples are prosecutions with respect to the American Civil War in the 1860s and Anglo-Boer Wars in the late nineteenth and early twentieth centuries. The quite reluctant prosecutions in Germany and Turkey after the First World War, the Leipzig trials and the Istanbul (Constantinople) trials in the 1920s, related to war crimes and were conducted under domestic laws.
Second WorldWar crimes have also been prosecuted elsewhere, most notably by Israel. The seminal Eichmann case addressed not only important issues of jurisdiction, including the exercise of jurisdiction upon abduction of the accused from another State, but also criminal defences (superior orders and the ‘act of State’ doctrine) and the principle of non-retroactivity of criminal law.
Conflicts after the Second World War did not produce many national criminal proceedings. A few examples are the US court martials concerning the infamous My Lai massacre during the Vietnam War, albeit for domestic rather than international crimes, some cases in Romania and Ethiopia where reference was made to ‘genocide’, a show trial in Cambodia of Pol Pot and the Khmer Rouge in 1979, and preparations for prosecutions of crimes committed during the 1971 Pakistan–Bangladesh war.
The trend has extended beyond these two conflicts. A number of cases, often based on private complaints, have commenced in domestic courts, particularly in Europe, regarding different conflicts all around the world.