© 2024 ICCT
Last update: 14 May 2024Circumstances relating to the background of the offender and/or the wider context of the crime as based on the facts of the case that can potentially increase the punishment. Aggravating factors need to be taken into consideration by judges while determining the sentence as long as they do not represent elements of the crime that the person was already found guilty of. In some countries, aggravating factors are defined by law or compiled as part of sentencing guidelines, while judges in other countries have more leverage on deciding on the scope of aggravating factors, within existing laws and jurisprudence.
One or all of the parties to the proceedings have filed a complaint with a court of higher instance, demanding an assessment of the previous proceedings and/or verdict. An appeal can be filed on factual grounds or on legal grounds. However, depending on the instance at which the contested decision was made, the ground of appeal might be limited. As long as the court tasked with the appeal has not made a decision, the appeal is considered to be pending. During this time, the decision of previous instance is not yet legally binding.
Official charges have been filed against an individual. For the purpose of this project “awaiting trial” does not require the relevant court at which the indictment was filed to have made a positive decision yet.
For the purposes of this research project, “case” relates to criminal proceedings involving only one individual. Proceedings that initially involved multiple individuals are listed separately by individual for the purpose of this project.
War crimes, crimes against humanity, genocide as well as the crime of aggression are considered core international crimes. While the exact scope of these crimes slightly varies across domestic jurisdictions, it is largely based on the provisions of the Rome Statute of the International criminal Court. These are crimes are considered to affect the international community as such with the primary responsibility of prosecution lying with the national States.
An individual accused can be charged with having committed more than one crime. Each individual alleged crime is then describes as one distinct count.
Many of the designated terrorist organisations operating in the conflicts in Syria and Iraq are also considered to be parties to a non-state armed conflict. Thus, their members could be responsible for committing war crimes. Additionally it is well documented that some of them have committed genocide against certain minorities, especially in the context of ISIS’ persecution of the Yazidi community. Therefore, alleged terrorist affiliates could also be held accountable for committing these and other crimes, in addition to the terrorism related offences they might have committed. The process of prosecuting respective individuals for both sets of crimes, or also including applicable other domestic charges is called cumulative prosecution. In some States, cumulative prosecution for core international crimes and terrorism can take place for the same facts, while in other states cumulative prosecution can only related to different facts.
The context in cases concerning of alleged terrorists in Syria and Iraq often provides facts that give rise for additional domestic charges. These can either be related to terrorism or core international crimes (e.g. murder, rape, or causing bodily harm). However, they can also be unrelated to these types of crimes such as child neglect, violation of arms control laws, or sanctions violations.
A verdict becomes final, meaning legally binding, either when prosecutor and defendant decided not to use legal remedies within the relevant time frame or because the court that issued the verdict is the highest court to have jurisdiction over terrorism/core international crimes cases within the respective judiciary.
Jurisdiction refers to the power of a judiciary to rule over a specific case. There are different grounds to establish jurisdiction, however, in the context ISIS and the conflict in Syria and Iraq, three of them are relevant to establish required extra-territorial jurisdiction. The first one is the ‘active personality’ principle, which allows states to prosecute their nationals for crimes they commit outside their territory. The second one is the ‘passive personality’ principle, which allows states to prosecute foreign nationals for offences committed abroad against citizens of the prosecuting state. Finally, universal jurisdiction enables a state to prosecute individuals regardless of nationality of accused and victims or location of the crime scene in cases where the alleged crimes concern the most serious crimes, core international crimes, as defined above.
Official document filed by a prosecution office, detailing the precise facts of the case and describing what crimes the accused is said to have committed. An indictment forms the base of a trial as only facts that are detailed in the indictment can be adjudicated in court. The legal qualification of facts included in the indictment can, however, change throughout the proceedings, given the defendant is informed about any changes in due time.
Timeframe within which the crimes at heart of the trial have allegedly been committed according to the facts described by in the indictment.
Position of the court, within the hierarchy of courts in the relevant domestic judiciary.
Legal and policy framework governing the judicial processes concerning alleged under age offenders. The age threshold to be eligible for juvenile justice varies between jurisdictions.
Life imprisonment is the most severe sentence that can be handed down in criminal proceedings. Despite being labelled as ‘life’ it does not necessarily mean that a convict must spend the rest of their life in prison, rather the exact duration and early release policies vary across jurisdictions.
Pursuant to German criminal law, sentencing judges can determine the particular severity of guilt (besondere Schwere der Schuld) in cases of life imprisonment. Although there is no legal definition of the factors leading to a particular severity of guilt, judges take into consideration whether the guilt of the convict weighs heavier compared to similar cases, for example by committing several murders, having an especially violent modus operandi, or particularly condemning intentions. When the particular severity of guilt is affirmed, a convict cannot apply for early release after serving 15 years in prison. Instead, the sentencing court will have to determine which additional correctional measures need to be applied after 15 years.
Circumstances relating to the background of the offender and/or the wider context of the crime as based on the facts of the case that can potentially lower the punishment. Mitigating factors need to be taken into consideration by judges while determining the sentence as long as they do not represent elements of the crime that the person was already found guilty of. In some countries, mitigating factors are defined by law or compiled as part of sentencing guidelines, while judges in other countries have more leverage on deciding on the scope of mitigating factors, within existing laws and jurisprudence.
Ne bis in idem/double jeopardy is a principle in criminal law and considered a fundamental human right. It prohibits the prosecution of an individual for the same facts that they have already been prosecuted for. This is also applicable to prosecutions conducted by different States.
A defendant is currently standing trial. This procedure lasts until a final verdict is issued.
Parole is temporary or permanent release from prison before a convict has served their full sentence. In that way convicts serve their sentence outside of prison by adhering to certain conditions, such as having to report to a parole officer on a regular basis and being sent back to prison in case of violating any of the obligations.
Following official charges, the accused and the prosecutor reach an agreement governing the scope of punishment for the accused in return for (partial) confession. Such an agreement usually must be confirmed by a court. The procedure of plea agreements in civil law countries is relatively new and precise procedural steps and requirements vary across national jurisdictions.
During investigation, detention of the suspect is possible, depending on a variety of factors, among others gravity of charges, complexity of investigations, risk of escape. Pre-trial detention can expand until and throughout trial. It can also be lifted and re-imposed, in this case it is considered to be served "temporarily". Following a verdict, pre-trial detention is either lifted in case the defendant is acquitted, the sentence doe not include further imprisonment, or the prison sentence becomes final and pre-trial detention turns into execution of the regular prison sentence.
Probation is a period of time during which a convict is allowed to be outside of prison while adhering to certain conditions. Probation can follow a period of incarceration.
Judicial decision on the question of punishment based on an assessment of individual guilt of a defendant. Measures can include imprisonment, probation, other disciplinary or monitoring measures, and special conditions.
For the purposes of this research project, terminated cases refer to cases where either national prosecution authorities launched investigations into individuals but were unsuccessful in bringing charges against them, or the cases where terminated following judicial assessment for other reasons, such as the double jeopardy principle.
Terrorism charges can include both, violent and non-violent offenses e.g. recruitment, financing, murder with terrorist intent governed by terrorism specific criminal provisions in the different domestic jurisdictions.
Court proceedings conducted without the defendant being present.
Circumstances are being assessed by investigation authorities. However, no formal charges have been filed at this stage. During investigation, the suspect is informed of the proceedings against them and is either in detention or allowed to (restricted) freedom of movement.
Judicial decision on the question of individual guilt.
© 2024 ICCT
Last update: 14 May 2024