International Criminal Law (2008)

C HAPTER #

International criminal law

Reading ................................................................................................................................. 2

Aim 2

Principles ............................................................................................................................. 2

1. Introduction: History and Politics ................................................................ 2

2. The Substantive Dimension ............................................................................. 4

2.1 Subjects ........................................................................................................ 4

2.2 Structuring principles............................................................................ 5

2.3 Sources ......................................................................................................... 6

2.4 Patterns of international criminalization ...................................... 9

2.5 Definition and types of international crimes ............................ 10

2.6 Core crimes ............................................................................................. 11

2.7 Other Crimes .......................................................................................... 16

2.8 “General part” of international criminal law ............................. 19

2.9 Sentencing ............................................................................................... 20

2.10 Immunities .............................................................................................. 21

3. The Enforcement Dimension ....................................................................... 22

3.1 Domestic Jurisdiction and Courts .................................................. 22

3.2 Fugitives and abduction .................................................................... 24

3.3 International judicial cooperation and extradition ................ 24

3.4 Universal Jurisdiction ......................................................................... 25

3.5 International criminal tribunals..................................................... 26

3.6 The relationship of international tribunals with domestic

courts ..................................................................................................................... 28

3.7 The relationship of international tribunals with states ....... 28

3.8 Issues of prosecutorial discretion before international

tribunals ............................................................................................................... 29

3.9 Procedure before international criminal tribunals ................ 29

3.10 The role and status of victims ......................................................... 31

3.11 Hybrid tribunals .................................................................................... 31

4. Conclusion ........................................................................................................... 32

Practice Questions ........................................................................................................ 32

Answers to Practice Questions ................................................................................ 33

Tutorial Questions ........................................................................................................ 35

2

International Law – In Principle. 28/12/2008 3:47 PM

R E A D I N G

Antonio Cassese, International Criminal Law, Oxford University, 2008.

William Schabas, An introduction to the International Criminal Court,

Cambridge University press, 2007

Theodor Meron, “Is International Law Moving Towards

Criminalization?” (1998) EJIL 1-11

Jonathan Charney, “Progress in International Criminal Law?” (1999)

93:2 Am. J. Int’l L. 452

William Burke-White, “A Community of Courts: Toward a System of

International Criminal Law Enforcement” (2002) 24:1 Michigan J. Int’l L.

A I M

By the end of this chapter you will know and understand:

• What the principal international criminal offences are;

• How international crimes are prosecuted and punished; and

• How international criminal law relates more generally to public

international law.

P R I N C I P L E S

1. Introduction: History and Politics

International criminal law (ICL) is a relatively novel and a-typical

branch of public international law (PIL). It can be described as the

international effort to protect a certain international “public order” or

core international values, through the imposition of criminal sanctions

in both international and domestic courts. Criminal responsibility differs

from civil responsibility (and traditional state international

responsibility which comes close to it) in that it imposes punishment for

a violation of fundamental societal norms.

ICL is thus a manifestation of a normative “densification” of the

international system, one in which certain values are sufficiently prized

to lead the “international community” to transcend its traditional value-

neutrality. ICL is also at the heart of certain phenomena of centralization

of power, in the same way that the rise of modern criminal law

domestically is linked to the rise of the state.

However, it should be stressed that ICL is also a contested, somewhat

localized and fragile enterprise. ICL threatens at times to overturn long

established practices and to redefine concepts such as sovereignty.

Typically, ICL “pierces through the sovereign veil” to impugn conduct

that would traditionally have been seen as entirely within the domestic

domain.1 It thus elicits some strong resistance, manifest in both state

inertia and the occasional strong opposition. This means that ICL has

often only emerged, if at all, at the confluence of strong state interest,

civil society support and shattering world events (World Wars, the

Holocaust).

ICL is typically viewed as a branch of public international law, but it is

also, crucially, in tension with that larger body. As will be seen both the

substance and the institutions of international criminal law, while

borrowing heavily on certain general international law concepts,

constitute a marked departure from them. What results is a branch of

international law that is often tempted between exploring its specificity,

and the need to remain attached to the international legal framework of

which it is the product.

Defining the exact scope of ICL is a difficult task because the discipline

keeps expanding and is very diverse. ICL is generally held to cover both

the “international” aspects of domestic criminal law and the “criminal”

aspects of international law. Although we will be mostly interested in

the latter, it is impossible to understand it without knowing about the

former, which includes mixed issues such as extradition and judicial

cooperation. Inherent in both are attempts to separate the proper

domains of the international and the domestic, as well as apportioning

criminal enforcement responsibilities between various states (for

example “producing” or “consumer” states in the case of drug

trafficking; or states that are associated with “active” or “passive”

bribery).

1 Frédéric Mégret, “The Creation of the International Criminal Court and State

Sovereignty : the ‘Problem of an International Criminal Law' re-examined”, in John

Carey, William V. Dunlap, R. John Pritchard (eds.), International Humanitarian

Law, Transnational , 2006, vol. 3.

4


2. The Substantive Dimension

2.1 Subjects

For a long time the possibility was studied by the International Law

Commission that states might incur criminal responsibility for certain

violations of international law.2 The consequences would have differed

from criminal responsibility of the individual (no sending the state to

prison) and could have involved punitive damages, as well as greater

operationalization of the erga omnes principle (jus standi of all states to

complain of the alleged crime; possibility or even obligation of

countermeasures by all states). The essential idea was that certain

violations are inherently graver and therefore require more

stigmatization by the international community. Over the years, this idea

became less popular, especially as individual criminal responsibility

came to gain more ground, but it still has some echo for example in the

opinions of some judges before the Inter-American Court of Human

Rights, when confronted with particularly shocking patterns of human

rights violations by some states.3

The individual (“natural” as opposed to “moral” persons) is therefore

today the principal subject of international criminal law. The

Nuremberg tribunal was founded on this idea and famously pointed out

that “[c]rimes against international law are committed by men, not by

abstract entities”.4 The “abstract entities” reference was presumably to

states, and the dictum is often highlighted as the starting point of

contemporary ICL. At the time, this was quite revolutionary. Public

international law was not familiar with the idea that individuals could

be directly subjects of international law, except maybe in the limited

2 See ILC 1976 Draft, art 19 speaks of the “violation by a state of an international

obligation that is so essential for the safeguard of the fundamental interest of the

international community that its violation is considered to be a crime by this

community”. 3 Antônio Cancado Trindade, “Complementarity between State Responsibility and

Individual Responsibility for Grave Violations of Human Rights: The Crime of State

Revisited”, in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in

Memory of Oscar Schachter, Martinus Nijhoff Publishers, 2005. 4 Trial of the Major War Criminals before the International Military Tribunal:

Proceedings v. 22, p. 466.

sense of the crime of piracy. In fact, international lawyers traditionally

viewed individuals as merely “objects” of international law. Strong

moral and policy arguments have been made since on behalf of the idea

that individuals should be subjects of ICL: the need to localize blame and

to not stigmatize entire populations, or the fact that deterrence (one of

the traditional goals of the criminal law) works better when it targets

individuals.

There is some debate about whether actors other than

individuals such as international organizations or corporations could be

subjects of ICL (.5 At present it seems that corporations are unlikely to

incur criminal responsibility directly under ICL6 (with the possible

exception of EU law), although some international instruments do

mandate states to anticipate their liability through domestic criminal

law.7

2.2 Structuring principles

To the extent that it is a branch of public international law, international

criminal law’s structuring principles are the same. For example, a

certain deference to sovereignty is evident in decisions by international

criminal tribunals. For example, unless they have customary status,

individuals cannot be condemned for the commission of crimes that

were created by treaty instruments to which their states are not party.

ICL also has to comply with cardinal principles of the criminal law, most

notorious among which is the so-called “legality principle” (often

referred to by its latin maxim, “nullum crimen sine lege” - there can be no

crime without law). According to this rule, an offence must have existed

in the law at the time one is accused of having committed it (rule against

retroactivity). Moreover, international criminal offences are, at least in

theory, to be interpreted strictly .

5 Andrew Clapham, “The Complexity of International Criminal Law : Looking

Beyond Individual Responsibility to the Responsibility of Organizations,

Corporations and States”, in Ramesh Thakur and Peter Malcontent (eds.), From

Sovereign Impunity to International Accountability : the Search for Justice in a

World of States, United Nations University Press, 2004. 6 A proposal was made to that effect but rejected at the Rome Conference which

gave rise to the International Criminal Court (ICC). 7 See, for example, UN Convention against Transnational Organized Crime, art 10.

6


International criminal tribunals (ICTs) have largely endorsed the need

to respect the nullum crimen principle which is protected in their

statutes. For example, they have often not been content with the fact

that an offence is included within their jurisdiction, but have sought to

verify that the offence (and its particular definition) actually did exist

and was applicable at the time it is alleged it was committed by each

defendant.

One can see how this aspiration to apply only the law as it existed

converges with the more traditional concern of public international

lawyers of applying the law only to the extent that the sovereign has

consented to it. Having said that, the gravity of the crimes involved has

often meant that there has been a temptation to emphasize the demands

of justice, morality or communal international interest to dynamically

interpret ICL.

2.3 Sources

In theory, ICL has exactly the same sources as general international law

(namely, article 38 of the Statute of the ICJ), and this remains the default

position in many trials of international crimes. However, its specific

nature and object means that ICL has had a tendency to reformulate the

traditional approach to sources. International law sources were

traditionally based on the state and have not always been very useful for

ICL, which is principally interested in the issue of individual criminal

responsibility.

This is evident in the decisions of ICTs and the Rome Statute, which

provides the ICC with its own list of sources.8 Perhaps uniquely, ICTs

have first and foremost relied on their Statutes, which are both

jurisdictional and, to an extent, substantive sources of law. Beyond that,

ICL has sometimes reinforced the central status of some principal

sources. For example, treaties are a favorite source of general public

international law, but have also been very popular in matters of

international criminal law where the vast majority of offences are

defined by treaty (the exceptions to this day being crimes against

humanity and aggression). Treaties often define both the offences and

some of the mechanisms to punish them (e.g.: the obligation to

8 See Rome Statute, art 21.

prosecute or extradite suspects). Perhaps the most comprehensive

substantive ICL treaty to date is the ICC Statute which has the effect of

codifying all of the “core crimes” (infra). Treaties have the double

advantage of maximizing predictability for states whilst minimizing the

risk of a violation of the nullum crimen principle for individuals. The fact

that treaties need to be ratified also means that they often elicit a high

degree of legitimacy and can be truly a way in which ICL is consciously

incorporated domestically.

However, ICTs have also gone beyond a classical understanding of the

sources of international law. First, there has been a subtle reevaluation

of the relative importance of each source of international law. For

example, “general principles of law recognized by civilized nations”9 has

been seemingly upgraded from a rather residual role to a very central

one, as courts have engaged in complex exercises of comparative law to

fill the gaps of ICL. One famous such exercise is the one conducted by the

judges of the Appeal Chamber of the ICTY in the Erdemović case on the

availability of a defense of duress under international law, which tried to

synthesize the very contrasted positions of the common law and

continental European systems on this issue. 10 Especially in the early

years of activity of the ad hoc tribunals, it can be argued that the

“teachings of the most highly qualified publicists”11 also had a significant

impact, as international criminal law was starting from very little.

Perhaps more crucially, international criminal law relies heavily on

judicial decisions, both domestic and, increasingly, international.

Because of the considerable impact that the activity of the ICTs has had,

the burden of formulating international criminal law has increasingly

shifted from states and diplomatic conferences to judges. Although this

undeniably creates concerns of “judge-made” criminal law,12 it seems

inevitable to fill the many gaps of ICL. International law traditionally

does not have a strong concept of courts being bound by precedents, but

9 ICJ Statute, art 38(1)(c).

10 See Erdemović, para 17. The ICC Statute also emphasizes the role of “general

principles of law derived by the Court from national laws of legal systems of the

world including, as appropriate, the national laws of States that would normally

exercise jurisdiction over the crime”. 11 ICJ Statute, art 38(1)(d). 12 An attempt by the states to rein in the power of courts to dynamically evolve the

law can be seen in the effort to develop “elements of crimes” for the ICC Statute,

outlining in great detail the content of each and every offence.

8


ICTs have increasingly moved towards a position where they rely on

their own precedents and those of other ICTs as very persuasive.

Tribunals’ practice is closer to the Continental European tradition

(reverting to “first principles”), than it is the rigid stare decisis discipline

of the common law. The ICC Statute has crystallized these developments

by stipulating that the Court can “apply principles and rules of law as

interpreted in its previous decisions”.13

The status of custom in ICL is quite emblematic. Customary law has

some considerable uses for ICL such as dynamic evolution and filling

various gaps. Custom is most often applied to treaties, following the ICJ’s

famous point in the North Sea Continental Shelf Case that treaty norms

can acquire customary status and end up binding even non-parties.14

More specifically, custom can also be used as a way of prosecuting

offences that were committed on the territory of states that are not

party to the relevant treaties. By saying that they have customary status,

the need for participation in a treaty is obviated, and a particular offence

is “universalized”.

ICTs have been part and parcel of the phenomenon of reinterpretation

of custom along more diversified lines. Whereas traditional custom

emphasized the importance of practice with opinio juris having only a

secondary role, there has been a tendency to conflate the two notions, so

that what states “say” is increasingly interpreted as a form of “doing”. In

the case of ICL, this has meant looking at military manuals to establish

that crimes can be committed in non-international armed conflict, for

example, rather than documenting actual battlefield practice.15

However, reliance on custom is also problematic because it has as its

model state practice; moreover nullum crimen problems may arise as a

result of custom’s vagueness. It is striking in this respect that the ICC

Statute does not mention custom explicitly.

At a certain level, the gradual detachment of custom from practice is

part of a phenomenon of return of natural law thinking, or at least of the

13 ICC Statute, art 21 (n8 above).

14 North Sea Continental Shelf Case, para 70.

15 Tadic, para. 99 (pointing out that “When attempting To ascertain State practice

with a view to establishing the existence of a customary rule or a general principle, it

is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the

field for the purpose of establishing whether they in fact comply with, or disregard,

certain standards of behavior”).

idea that there are a number of norms that are implicitly necessary to

international life.

2.4 Patterns of international criminalization

There are many different ways in which international crimes can come

into being in practice. Certain international crimes are the

internationalization of what were originally only domestic crimes,

where the criminalizing state finds that its efforts are being hindered if

it is “going at it alone”. For example, the criminalization of both drug

trafficking and corruption are efforts that have been largely spurred by

US power (in the case of drug trafficking it is difficult to criminalize

drugs at home without international cooperation; in the case of

corruption it puts US companies at a disadvantage if they cannot bribe

foreign officials, but foreign companies can). Certain crimes, on the

other hand, are more distinctly international creations (e.g. crimes

against humanity) that were then “domesticized”.

In most cases, criminalization is the result of initiatives taken by a few

states that then successfully rallied others. There is no doubting that the

process of international criminalization is often quite a political one:

there has been marked opposition concerning the definition of genocide

(e.g.: should it include political groups? Sexual minorities?), not to

mention aggression and terrorism for which satisfying definitions still

seem to elude the international community.

Generally the process of criminalization is preceded by a gradual

reinforcement of the status of a norm, and emanates from another

branch of international law (for example, but not exclusively,

international human rights or international humanitarian law).

Criminalization obviously bears some relation to the fact that certain

norms are hailed as jus cogens or erga omnes. There seem to be a

number of implicit conditions for a certain behavior to be

crimininalized. The first is a “gravity” criterion. Criminal responsibility,

especially criminal liability directly under international law, is quite a

radical option and only the gravest of crimes will be internationalized (if

only to respect sovereignty).

A second criterion is that the behavior has some sort of international

“impact” thus making it a legitimate object of concern for the

1


international community rather than simply for domestic law. There are

several ways a certain behavior can have an international impact. First,

most classically it can arise as the result of the actions of one state

against another (e.g.: aggression). Second, it can be “transnational” in

that it happens across borders. Trafficking offences are typical of this

(slave traffic, rather than simply slavery), but so is terrorism (which is

mostly of interest to international law to the extent that it is

international). Third, it could be merely domestic but have an incidence

on the promotion of certain global public goods (for example bribery of

officials or drug production have international impacts). Fourth,

offences might be entirely domestic but touch a core international value.

These are what one might describe as offences of “absolute”

international concern (genocide, crimes against humanity).

In practice, many transnational offences have led to demands for the

criminalization of purely domestic behavior, and one of the rationales

for criminalizing core crimes is that even though they can technically

arise entirely domestically they often have substantial transnational

overspill effects (for example regional destabilization and refugee flows

created by a genocide).

2.5 Definition and types of international crimes

Regardless of why and how it came to be criminalized, an international

crime is a crime whose existence and definition is anticipated by

international law (e.g.: a treaty). All ICL crimes that have been created

by treaty share the characteristic that they must be criminalized under

domestic law. A standard formula exists which requires countries “to

adopt (…) measures as may be necessary to establish as criminal

offences” whatever crime the treaty purports to combat.16 There is thus,

so to speak, an “internationally mandated domestic criminalization” of

crimes ranging from drug trafficking to genocide.

Whether a crime is then to be prosecuted purely domestically or

through a mix of domestic and international jurisdiction is an

enforcement issue which is secondary to the issue of a crime’s

international status, as derived from the source of its criminalization.

16 See, for example, UN Convention against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances, art 3(1).

However, the fact that some international crimes (which, on the face of

the treaties creating them, are similar to others) have been historically

selected for partial prosecution by international tribunals is a

recognition of their particular gravity (“core crimes”) and more

inherently international nature. For example, in the case of genocide, the

Convention makes it clear that genocide is “a crime under international

law” directly which can be judged by an international criminal court. It

is worth noting that international crimes that are not currently being

prosecuted by international criminal tribunals could very well be in the

future,17 so that they could also be further internationalized in that way.

2.6 Core crimes

The core crimes (known as such because they are within the ICC’s

jurisdiction) are genocide, crimes against humanity, war crimes and

aggression. As will be seen, these are all mostly crimes of the state,

although they may be committed by non-state entities as well (in both

cases, of course, it continues to be individuals who will be held

accountable). There is some overlap between the core crimes: for

example genocide and crimes against humanity bear some affinity and

indeed it is often said that genocide is an aggravated form of crimes

against humanity. Many crimes against humanity will also constitute

war crimes in certain conditions.

Genocide

Genocide has been described as “the crime of crimes” by the ICTR. It was

originally defined in the Genocide Convention (1948), and that

definition has hardly changed since.18 Individual criminal responsibility

for genocide requires that (i) some underlying actus reus have been

committed (e.g.: killing or causing serious harm, inflicting conditions of

life calculated to bring about physical destruction, imposing apartheid,19

etc) and (ii) against a group or members of a group. Groups are defined

as “national, racial, ethnic and religious” groups. The definition of

groups under the Genocide Convention is not always unproblematic, as

it is in the nature of some of these categories that they are constantly

17 For example, it has often been argued that drug trafficking or corruption should be

judged by international criminal tribunals. 18 Genocide Convention, art II.

19 See ICC Statute, art 7(1).

1


shifting. The international case law, particularly the ICTR’s, has tended

to rely on both self-identification and the perpetrator’s construction of

the group’s distinctiveness.20

Most importantly and distinctively (in relation to crimes against

humanity for example), these acts must have been committed

with a particular intention (sometimes known as the “special mens rea”

or “dolus specialis”), that of destroying “in whole or in part” the target

group “as such”.

Crimes against Humanity

The notion of crimes against humanity was originally created for the

purposes of prosecuting the main Nazi defendants at Nuremberg,

although it had some antecedents in pronouncements by the

international community concerning the Armenian genocide. The

definition of crimes against humanity is broader than that of genocide.

There is no requirement of “special intent”, only the general intent of

committing the various underlying acts. However, those acts must have

been committed as part and with knowledge of a “generalized and

systematic attack”. It used to be the case at the time of Nuremberg that

crimes against humanity had to be committed as part of a crime against

peace, but that idea has since been abandoned. The “attack” threshold is

more neutral and can cover situations of violence which would not

qualify as an actual conflict (e.g.: a campaign of repression by a

government against its citizens), whilst excluding purely isolated acts

which are not of direct concern to the international community. There

was also a requirement in the ICTR’s definition that crimes against

humanity be committed “on national, political, ethnic, racial or religious

grounds”.21 This too has been abandoned first in the ICTY Statute22 and

in the now authoritative ICC definition.23

The abandonment of requirements that crimes against humanity be

committed during war and comport a discriminatory element can be

seen as part of an effort to distinguish them more clearly from,

respectively, war crimes and genocide. The criminological element of

crimes against humanity is thus increasingly a unique attempt to protect

20 Akayesu, para 112-129, 510-521. 21 ICTR Statute, art 3.

22 ICTY Statute, art 5.

23 ICC Statute, art 7.

humanity, understood as both “the collectivity of human beings” and

“what makes human being specifically human” (human-ness).24

Aggression

Aggression and war crimes share the fact that they both relate to the

regulation of the use of military armed violence, although they do so

from two very different angles. Aggression is a criminal violation of

what is known as the jus ad bellum, whereas war crimes are criminal

violations of the jus in bello. The jus ad bellum is the international law of

the legality of resort to force (see Chapter 10), whereas the jus in bello

(also known as laws of war and international humanitarian law) is the

law of the conduct of military operations. The fact that a war is legal or

illegal at the level of the former, does not obviate the need to respect the

requirements of the latter.

Aggression was seen as a “crime against peace” and described as the

“mother of all crimes” at Nuremberg. The prohibition of war by the

Briand-Kellog Pact of 1928, was seen as having solidified enough to have

become a criminal prohibition under international law and all at

Nuremberg were accused of having conspired to disrupt international

peace. Aggression has however since entered a phase of steady decline.

The Cold War made it very difficult to come to an agreement as to its

definition (although a resolution was adopted by the General

Assembly)25 and the Post-Cold war era does not seem to have alleviated

any of the tensions. The difficulties in defining aggression are many and

stem from the potentially highly political nature of the issue, the fact

that the law in this area is constantly evolving, alongside more

institutional concerns with encroaching upon Security Council

prerogatives, and more juridical difficulties linked to the attribution of

responsibility. At the time of writing, the ICC, on the basis of a

transitional provision, was still in the incongruous position of having

aggression theoretically in its jurisdiction but not having agreed on a

definition.26

Notwithstanding these difficulties, there are elements that would no

doubt feature highly in any definition. An aggression can perhaps best

be defined in negative terms as a military action that is neither in self-

defense (as authorized by article 51 of the Charter) nor authorized by a

24 DJ Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale J Int’l L 85.

25 GA Res 3314 (XXIX) (14 December 1974).

26 Article 5 of the Rome Statute.

1


Security Council resolution under Chapter VII of the Charter. Another

idea inherited from post-Second World War trials is that only

individuals in the highest spheres of the state (those involved in the

decision to launch a war) can be prosecuted for aggression. There is no

question, in other words, of ordinary foot soldiers or even most officers

being prosecuted for waging a war that may be illegal but which they

had no responsibility for launching.

The main difficulty is that there is no perfect consensus on the main

parameters of aggression. For example some would not label the

bombing of the Federal Republic of Yugoslavia in 1998 by NATO as

aggression even though it was a first use of force not authorized by the

Security Council, and prefer to refer to it as an instance of humanitarian

intervention (which, to make matters more complicated, may now be

mandatory following the adoption by the General Assembly of the

notion of a “Responsibility to Protect”).27 There is also substantial

concern that, however polemical it may be, the “War against terror” has

enlarged the already dubious notion of pre-emptive use of force to that

of “preventive” self-defense.

At any rate, it is likely that a proper definition of aggression awaits

resolution of at least some of these dilemmas, and such a resolution

would have to be significantly universal to have any meaning.28

Criminalization should typically come as the consecration of defining

efforts, and may be ill-suited to spearhead them.

War Crimes

War crimes have perhaps the oldest history in international criminal

law, having been prosecuted domestically on the basis of international

conventions since the First World War. What constitutes a war crime is

defined by the various rules of international humanitarian law, both

conventional and customary, relating to the use of certain means and

methods of combat or certain “protected persons”. First and foremost

are the “grave breaches” of the Geneva Conventions and their First

Protocol. A number of other treaties relating to means and methods of

combat (sometimes referred to as “law or customs of war”) have also

27 A/60/L.1, 15

th September 2005, paras. 138-139.

28 Note that in the ICC context amendments, including those that might define

aggression, are only applicable to states that have adopted them.

had a considerable role in creating the bases for war crimes.29 Perhaps

the most significant question to have arisen in the last decades is

whether “war crimes” might be committed in an internal conflict,

something which the relevant treaties (unlike provisions applicable to

international conflicts) did not anticipate. There was considerable

resistance from states on this point (given the perception that internal

conflicts are much more within the sphere of sovereignty), and the ICTY

Statute for example did not give that Tribunal jurisdiction over

violations of common article 3 or Protocol II to the Geneva Conventions

(which apply to non-international armed conflicts).30 But the distinction

between international and non-international armed conflicts has been

eroded significantly since. The Tadic decision of the ICTY had at least

recognized that violations of the “law or customs of war” can lead to

criminal responsibility in a non-international armed conflict.31 The ICTR

Statute does not particularly specify in its war crimes provisions

whether these need to have been committed internationally. The ICC

Statute has since made the most concerted effort to allign the two

regimes although some small substantive distinctions remain.32

Sexual Offences

Perhaps one of the most significant substantive developments in ICL

since the 1990s is an increasing recognition of the role of sexual crimes

in genocide, crimes against humanity or war crimes.33 Attention to the

particular experience of women in contexts of violence, has led to

innovative prosecutorial strategies (reinforced by the increased

feminization of the Bench, as mandatorily required for the ICC) that aim

to transcend some of ICL’s traditional gender-blindness. For example,

rape’s understanding as a war crime has been substantially reworked to

portray it as something more akin to torture than an assault on women’s

“honor”.34 As a crime against humanity, sexual offences now include

29 See article 3 of the ICTY Statute.

30 In addition, the ICTY did not recognize that “grave breaches” could be committed

in non-international armed conflict. 31 Tadic, paras 96-137.

32 ICC Statute, article 8.

33 ICC Statute, article 8. 2. (e) (vi). 34 Theodor Meron, “Rape as a Crime under International Humanitarian Law” (1993)

87 A.J.I.L.

1


“rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable

gravity”.35 Finally, sexual violence has increasingly been recognized as a

tool of genocide (because of the way it victimizes a significant part of the

group, but also to the extent that it leads to unwanted pregnancies).

2.7 Other Crimes

Although the “core crimes” tend to attract a lot of attention, it is

important to see international criminal law as a whole made up of a

multitude of international offences, many of which have a very concrete

bearing on international life even outside the sort of crisis situations

contemplated by crimes of mass violence. Some of those are particularly

relevant as attempts to regulate the “private” aspects of globalization.

Piracy

Piracy is perhaps the original international crime. The offence was

created to remedy a partly technical problem: the fact that under the

then emerging principle of freedom of the seas, no state had jurisdiction

over the High Seas. Today, piracy is criminalized in article 100 of the UN

Convention on the Law of the Sea (1982). It covers violent acts

committed for private ends on the high seas. Because most acts of

violence against ships today are committed in territorial waters and that

many of those are of a political nature, the Unlawful Acts Against the

Safety of Maritime Navigation treaty was adopted in 1988. It creates a

number of specific offences that have the aim of safeguarding

navigation. However, the offence of piracy has occasionally been

resurrected, in order for example to deal with the acts of NGOs like the

Sea Shepherd Conservation Society that are accused of having taken

dangerous action against Japanese whaling ships.

Trafficking

Efforts to abolish slave trafficking and trafficking are another 19th

Century legacy of ICL. Today, the 1956 Supplementary Convention on

the Abolition of Slavery is the main anti-slavery treaty. It obliges states

to criminalize “the act of conveying (…) slaves from one country to

another”, “the act of mutilating, branding or otherwise marking a slave”,

35 ICC Statute, article 7 (g).

and most importantly “the act of enslaving another person”.36 The

Convention has been somewhat taken over during the last decades by

the development of what are known as “slave-like practices”: practices

that are not strictly slavery (in that the person is not owned as property,

generally because the legal system will no longer sanction it), but that

come very close (e.g.: debt bondage, serfdom, servile marriage, forced

labor, forced prostitution and sexual slavery). The emphasis of late has

been on the criminalization of trafficking of persons more generally

defined by the UN Protocol to prevent, suppress and punish trafficking

in persons as “the recruitment, transportation, transfer, harboring or

receipt of persons, by means of the threat or use of force or other forms

of coercion, of abduction, of fraud, of deception, of the abuse of power or

of a position of vulnerability or of the giving or receiving of payments or

benefits to achieve the consent of a person having control over another

person, for the purpose of exploitation”, when this occurs in a

transnational context and involves an organized criminal group.

Torture

Torture is an offence that has also become very emblematic, as a result

of such cases as the Pinochet trial, one of the first transnational criminal

case involving the definition of the Convention against torture (1984).

Torture is defined by that treaty as “any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a

person” for certain purposes such as obtaining information.37 The pain

or suffering must have “inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an

official capacity”. A single act of torture is a crime. However, unlike the

core crimes, torture as such (i.e. as long as it is not committed as part of

the commission of a crime against humanity or as a war crime) has not

been seen generally as a crime susceptible to being tried by an

international criminal tribunal.

Terrorism

The international offence of terrorism is very much a vexed question, a

bit in the same way that the international community has had

difficulties defining aggression. The strong consensus that terrorism

should be criminalized is matched by an equally strong disagreement

36 1956 Supplementary Convention on the Abolition of Slavery.

37 Convention against Torture, article 1. 1.

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about its exact definition: as the aphorism goes, “one man’s terrorist is

another man’s freedom fighter”. Prospects for a comprehensive

definition of terrorism are probably not as improbable as they were in

earlier days, but even (perhaps even more so) in a post 9/11 era there

still seems to be tremendous difficulty in adopting a single,

consolidating treaty, even though that is now the UN’s goal. Historically,

the international community’s efforts have been geared towards

criminalizing certain specific acts (e.g.: hijacking aircrafts, bombings)

rather than attempting to tackle the definition of terrorism head-on.

Pressure has built up, however, to come up with a definition

characterizing the essence of terrorism, especially in view of the risk of

states manipulating the offence to, for example, persecute legitimate

opponents or adopt sweeping restrictions to liberties. As with

aggression, it would seem that there are some elements that should

make their way in any definition of terrorism. One of them is perhaps

that terrorism is not so much the use of force per se by non-state actors

(which, in some very limited circumstances, might be legal) but that in

using force these actors do not respect the main principles of the laws of

war (for example, because they target civilians). In other words, it is the

means of terrorism that are abhorrent rather than its ends, in the same

way war crimes remain war crimes regardless of the merit of use of

force. There is debate, furthermore, as to whether only non-state actors

can commit terrorism, or whether states can too. This is an ideologically

loaded issue, although there is certainly an argument that illegal state

violence is already amply covered by the core crimes and torture.

Drug-Related Offences

Drug related offences have a long history in ICL. After the British Empire

made a fortune selling opium to China, the tide turned against drugs in

the 20th Century. The 1961 Single Convention on Narcotic Drugs is

currently the backbone of drug controlling efforts and focuses on

organically produced drugs (opium, cocaine, cannabis). Its scope is

considerable since state parties are required to criminalize “cultivation,

production, manufacture, extraction, preparation, possession, offering,

offering for sale, distribution, purchase, sale, delivery on any terms

whatsoever, brokerage, dispatch, dispatch in transit, transport,

importation and exportation” of drugs.38 The 1971 Convention deals

38 The 1961 Single Convention on Narcotic Drugs, art 9(4).

with psychotropic drugs (LSD, amphetamines, hallucinogens) and

imposes somewhat less onerous obligations. The 1988 UN Convention

focuses on the “Illicit Traffic in Narcotic Drugs and Psychotropic

substances”, and is generally seen as an intensification of anti-drug

efforts, with criminalization extending to “possession”.

Corruption

Corruption, which is seen as an unfair distortion of the economy and a

major cause of under-development, has also become a favorite target of

the international community. Originally, the emphasis was on bribing

foreign public officials (a characteristically transnational offence), but

the UN Convention against Corruption (2003) henceforth obliges state

parties to criminalize the bribery of national public officials as well,

alongside “embezzlement, misappropriation or other diversion of

property by a public official”.39

Organised Crime

Finally, international efforts are underway to combat organized crime,

which is often seen as having something to do with many of the above.

The United Nations Convention Against Transnational Organized Crime

(2001), for example, specifically requires states to criminalize the

laundering of the proceeds of crime. Its criminalization of corruption

and two protocols on trafficking and smuggling of persons attest to an

increasingly integrated approach to some of the criminal woes that

affect globalization.

2.8 “General part” of international criminal law

The “general part” of any system of criminal law is (unlike the special

part which covers specific offences) comprises all the rules and general

principles that relate to the necessary elements of guilt (actus

reus/mens rea, attribution, defenses). For those crimes the prosecution

of which is reserved to domestic courts, the emphasis is on adopting the

specific offence, “in accordance with principles of (each state’s)

domestic law” and “subject to (each state’s) constitutional limitation”.40

When it comes to crimes that are to be prosecuted internationally, there

is more of an incentive to develop a sui generis “general part” of ICL.

39 UNCAC, art 17.

40 For example, Convention on Narcotic Drugs , article 36. 1. a) and 2..

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Much of the general part is not sufficiently noticeably different than that

of various domestic traditions to merit mention here, but there are at

least some issues that are quite specific to the development of ICL. The

most important one is the development of the concept of “command

responsibility” and attendant ideas. Domestically, this is quite a rare

mode of imputation, because of the personality principle which

anticipates that one can only be found liable for crimes one committed

personally. The circumstances of ICL and the fact that the commission of

major international crimes is linked to the infliction of considerable

violence often linked to the state and military structures functioning in

highly disciplined ways, means that ICL has had fewer qualms about

imposing what is known as “command responsibility”. Command

responsibility is the responsibility for the acts of the subordinates of

military superiors (and to a lesser extent civilians in position of power)

who knew or had reason to know that these subordinates were

committing international crimes and failed to stop or repress them.

The flip side of command responsibility is that individuals may in

principle not invoke obedience to orders to escape guilt, except in very

limited circumstances.41 However, there is a strong debate as to whether

defendants should be allowed to invoke duress as a defense in cases

(which may often be cases of military hierarchy) where they are

threatened (or their relatives) with injury or loss of life if they fail to

comply with an order.42

Another distinguishing trait of general ICL is the tendency, despite the

individualization of guilt, to resort to indictments that bring several of

the accused together either through conspiracy (Nuremberg, Genocide

Convention), or through what is today known as joint criminal

enterprise (JCE).

2.9 Sentencing

Several international treaties that mandate the criminalization of

specific offences also indicate that certain penalties should be preferred

(e.g.: imprisonment in the case of drug trafficking offences). When it

41 ICC Statute, article 33. 1. The Statute, however, anticipates an exception where

the person was (i) “under a legal obligation to obey the orders”, (ii) “did not know

that the order was unlawful”, (iii) “the order was not manifestly unlawful”. 42 See Simić et al, para 16 et seq.

comes to international criminal tribunals, several rules and practices

apply. The post-Second World War tribunals applied the death penalty

(12 times at Nuremberg and 7 at Tokyo). This had become inconceivable

by the time the Statutes of the ICTY and ICTR were adopted, so that only

imprisonment and fines are contemplated. The theory is that the

tribunals are supposed to “have recourse to the general practice

regarding prison sentences”43 in the countries where the crimes were

committed, but in practice they have tended to develop their own

sentencing principles which rely heavily on the nature of the crime, the

degree of participation in its commission and a number of aggravating

or mitigating circumstances. There is no plea agreement before

international criminal tribunals, but cooperation and remorse may, all

other things being equal, be considered as mitigating elements. The

norm with the ICC will be imprisonment for up to 30 years, although the

Statute retains the possibility of “a term of life imprisonment when

justified by the extreme gravity of the crime and the individual

circumstances of the accused”.44

2.10 Immunities

Immunities are an old and problematic issue in general international

law, but with particular relevance in ICL. Immunities are bars to the

exercise of jurisdiction and should not be confused with substantive

defenses based on status (which have been categorically rejected by

ICL). Immunities, which inhere in persons holding the highest offices

(head of state, ministers), are traditionally understood as being of the

“functional” and “personal” sort. Functional immunities apply to acts of

state undertaken by an individual, and continue to exist after that

individual has ceased to hold public office. Personal immunities cover all

acts of an individual, but only so long as he occupies sovereign functions.

In the Pinochet case, the House of Lords held that acts of torture were

not acts that could conceivably be seen as committed as part of a Head

of state’s “functions” and were thus not covered by functional immunity.

In the Yerodia case, the ICJ held that an acting foreign minister, who was

the object of an arrest warrant by a Belgium court, was entitled to full

43 ICTY Statute, art 24(1).

44 ICC Statute, art 77(1)(b).

2


personal immunity.45 The Special Court for Sierra Leone, conversely, has

held that Charles Taylor could not invoke his head of state immunity

even though he was an incumbent head of state at the time charges were

brought against him. The argument, based on a dictum in Yerodia, was

that “international courts” can override even current heads of states’

personal and functional immunity. Given that article 27(2) of the ICC

Statute stands for the broad proposition that “immunities (…) shall not

bar the Court from exercising its jurisdiction”, there is a strong

argument that immunities of an incumbent head of state continue to

apply in a horizontal state-to-state context, but no longer in the vertical

international-court-to-state context.

3. The Enforcement Dimension

Substantive criminal law without repression challenges the very idea

that there is such a thing as ICL. Probably more crucially than public

international law, ICL, which relies on punishment, is uniquely

vulnerable to the accusation that it is not being enforced. It has taken

the international community quite a long time to equip itself with

effective enforcement mechanisms, and it has often done so in a way

that would minimize encroachments on sovereignty, but great strides

have been accomplished in this field.

The emergence of a strong ICL enforcement regime has historically

often required the backing of a strong power or a coalition of strong

powers. For example, the fact that the British threw their weight behind

the prohibition of slave traffic in the nineteenth century and were ready

to patrol the North Atlantic to enforce this prohibition helped to make it

successful. The creation of the ICC has benefited considerably from the

emergence of a coalition of “Like Minded” States (European Union and a

variety of African and Latin American allies), in the same way all of the

ad hoc tribunals had benefited from US support. Conversely, consistent

US opposition to the ICC is a thorn in that Court’s operation.

3.1 Domestic Jurisdiction and Courts

45 Yerodia Case, para 47 et seq.

States have a monopoly of criminal jurisdiction on their territory. Their

“titles” to criminal jurisdiction are the same that exist in general PIL.

The principal ones are the territorial principle (states have jurisdiction

over crimes committed in their territory) and the active personality

principle (states have jurisdiction over crimes committed by their

nationals, something increasingly used to punish sexual tourism). The

passive personality principle (where a state’s national is a victim) and

other interest based theories of jurisdiction are also sometimes used.

The international system’s general default position and the only one for

a whole series of crimes is that prosecution of international crimes is a

priori suitable for domestic courts and should be outsourced to them.

This is the “decentralized” model of enforcement: one where domestic

courts enforce what is otherwise a centrally proclaimed substantive ICL.

The development of ICL is thus crucially dependent on the ability and

willingness of states to exercise their jurisdiction when mandated to do

so by international obligations. In practice, states’ willingness to enforce

ICL prohibitions varies on a variety of factors. One problem that arose

early on is that states are unlikely to want to prosecute “crimes of state”

that are committed by the very government that is supposed to make

sure they are repressed. The Leipzig trials, in which Germany was

supposed to try war crimes committed during the First World War, are

often cited as a case of largely failed domestic prosecutions.

ICL reacts to this by insisting that states have a legal obligation to

prosecute international crimes. This is the obligation known as “aut

dedere aut judicare”, a standard feature of almost all international

criminal treaties that arguably has customary status for all international

crimes, and which obliges states to either try or extradite individuals

who are suspected of international crimes (in the event that no request

for extradition is forthcoming, that amounts to imposing an obligation to

prosecute). To make things even more clear, a number of standard

provisions seek to oblige states to “ensure that any discretionary legal

powers under (their) domestic law relating to the prosecution of the

relevant offences are exercised to maximise the effectiveness of law

enforcement measures”.46

46 UN Convention against Transnational Organized Crime, art 11.

2


3.2 Fugitives and abduction

One problem which criminal lawyers encountered early on, in fact

before the development of a substantive ICL, is that individuals who are

sought for the commission of crimes have a tendency to want to escape

arrest. If they manage to seek refuge in a foreign country, then the

international law of jurisdiction anticipates that they may not be tried

there by the state on whose territory they committed their crime. In

addition, the host country may well not have the jurisdiction or the

incentive to prosecute this person’s crimes. This can be a significant

factor of impunity for both ordinary domestic crimes and international

crimes (witness for example the escape of Nazi war criminals after the

Second World War).

One response by states has been occasionally to abduct individual

criminals, in violation of the sovereignty of the state from which they

are abducted (most famously Eichmann in Argentina).47 This sort of

practice obviously operates on the margin of ICL and is generally

considered illegal as between states, but it has been given occasional

legitimacy by the practice of some courts (originally most of the

common law, today mostly the US) to try them regardless of the

conditions of their capture (what is known as the “male captus, bene

detentus” maxim which translates roughly as “badly caught but properly

detained”).48

3.3 International judicial cooperation and extradition

The normal and much preferred route to obtain custody is through

extradition. Extradition is today largely done by treaty (there is

arguably no customary obligation to extradite). For a long time,

extradition treaties were mostly bilateral. One of the great contributions

of ICL is to have developed multilateral offence-specific treaties that

anticipate extradition between all state parties. The existence of an

internationally defined offence does away with the problem of so-called

“double-criminality” (the idea that states will extradite only for offences

which are on the domestic statute book).

47 Eichmann, paras 2, 4, 8-9, 40-45, 52.

48 Ibid. The ICTY has also held that it can try someone who has been brought to it in

dubious circumstances. See Nikolic, paras. 70-115.

There may still be obstacles to extradition. In that respect, international

human rights law (which is otherwise a stimulus on the development of

ICL) has acted as a significant constraining factor in the expansion of

international criminal repression. For example, many states that have

abolished capital punishment will not extradite to states that have not,

unless they are given assurances that the death penalty will not be

sought.

In addition to extradition, judicial cooperation designates a variety of

ways in which acts of investigation or hearing of witnesses can be

carried out in another state. Normally, judicial cooperation is by way of

“letter rogatory”, but this can be expedited when an ICL treaty requires

it. Today, cooperation in combating organized crime increasingly

extends to the tracing and seizing of illegal assets, i.e. the product of

crime.49 In some organizations of regional integration such as the EU,

both extradition and judicial cooperation have been greatly streamlined;

the EU arrest warrant, for example, is enforceable anywhere in the EU.

3.4 Universal Jurisdiction

Universal jurisdiction, which has it origin in the repression of piracy, is

one response to both the problem of fugitives and state sanctioned

impunity. It allows states to try individuals regardless of the nationality

of perpetrators or victims, or of the territory where they committed

their crimes. The idea is that certain crimes are so abhorrent that their

repression becomes the prerogative of all members of the international

community.

Universal jurisdiction has been used infrequently in the case of crimes

other than piracy. There is some ambiguity as to which crimes are

susceptible to universal jurisdiction, but war crimes and torture are

often quoted and, arguably by customary extension, crimes against

humanity and even genocide (though the 1948 Convention does not

mention the possibility specifically). Another ambiguity relates to the

existence of a requirement that the accused at least have some

connection to the territory of the state that purports to try him (be it

only transitory): the better view today seems to be that there is a

physical presence requirement, after a Belgium law that did not require

49 See UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances.

2


any nexus at all was repealed by the Belgian Parliament under strong

international pressure.50 A small but not insignificant number of cases

have been brought on the basis of universal jurisdiction in Europe,

Africa, and Canada, typically involving torture, war crimes or genocide

charges.

3.5 International criminal tribunals

ICTs amount to a “centralization” of the international community’s

criminal law enforcement resources. It is an exceptional but very

noticeable phenomenon. What makes these tribunals “international” is

first that they are created by an international law instrument. ICTs have

been created through a variety of means: through agreement

(Nuremberg), occupation order (Tokyo), Security Council Resolution

(ICTY and ICTR) and international treaty (ICC). A treaty creation is

probably the most opportune method as it gives space for diplomatic

negotiations, where Security Council creation has been challenged

(unsuccessfully as it happens, see Tadic case) as something that had not

been anticipated by the UN Charter. Second, ICTs are also “organically”

international in that, for example, none of their judges and prosecutors

come from the countries where the crimes were committed and they are

chosen (by the Allies, the UN or the ICC Assembly of State parties as the

case may be) through a complex process involving various doses of

designation and election, and aiming at regional representativity. Third,

ICTs apply mostly, if not exclusively, international law standards.

Because of resistance to centralized criminal jurisdiction, ICTs were

initially created “ad hoc” (i.e.: for the purposes of judging a particular

caseload). The Nuremberg Tribunal (1945-1946) was the first such ad

hoc tribunal, followed by the Tokyo tribunal (1946-1948), and the

Former Yugoslavia (The Hague) and Rwanda (Arusha) tribunals in the

1990s. A common characteristic of all these tribunals is that their

jurisdiction is limited territorially (ICTY: Former Yugoslavia; ICTR:

Rwanda), temporally (ICTR: duration of the genocide; ICTY: “since

1991”) or personally (ICTR: Rwandans in Rwanda’s neighboring states).

50 David A ; Talman, « Universal Jurisdiction : Lessons from Belgium’s

Experience », in Jane E. Stromseth (ed.), Accountability for Atrocities,

Transnational, 2003.

One of the criticisms most frequently addressed to ad hoc tribunals,

especially Nuremberg and Tokyo, is that they are instances of “victors’

justice” because of the way in which they are created by certain

powerful states in connection with particular events. This criticism has

less bite in the 90s because the Security Council could not be said to be

particularly a “victor” vis-à-vis either Rwanda or the Former Yugoslavia,

but there was still a sense that the justice meted was at least a “justice of

the powerful”.

Hence very early on (at least since the end of the Second World War)

projects for a permanent ICC with potentially universal jurisdiction

emerged. The idea was that if the ICC pre-existed the offences it was

supposed to judge, there would be fewer critiques of its partiality, and

such an institution would better conform to fundamental principles of

justice. The ICC Statute was adopted on the 17th July 1998 in Rome

following lengthy negotiations, and the Tribunal was established on July

1, 2002. The Court has jurisdiction over crimes committed on the

territory or by nationals of state parties. Cases may be referred by state

parties (and have been by Uganda and the Democratic Republic of

Congo for example), but the Prosecutor also has a fairly unhindered

power to investigate cases out of his own initiative. The Court has a

complex relationship with the Security Council: the Council can, on the

one hand, refer “situations” to it even when those arose on the territory

of non-state parties (something which was put to good use when the SC

referred the situation of Darfur, with Sudan not a party);51 but the

Council can also ask the Prosecutor to “defer” consideration of certain

cases (the Council availed itself for a time of that possibility in dubious

circumstances at US behest to prevent the ICC from considering any

crimes that might have been committed in the course of peacekeeping

operations).52

All ICTs apart from Nuremberg and Tokyo have had Appeal Chambers

(shared in the case of the ICTY and ICTR). The Registry provides

administrative support to the judges and is in charge of victim and

witness protection, as well as outreach. The Tribunals are headed by a

President designated from among the judges. Financing is either from

the UN (ad hoc tribunals) or state parties to the founding treaty (ICC).

51 ICC Statute, article 13. (b) and Security Council resolution 1593 (2005).

52 Security Council Resolution 1422 (2002).

2


3.6 The relationship of international tribunals with

domestic courts

One of the most interesting issues to have arisen before ICTs is whether

they should exercise jurisdiction even when domestic courts are trying

to. The question did not arise in the case of Nuremberg and Tokyo

because German and Japanese courts either did not function or did not

have jurisdiction over international crimes. The ICTY and ICTR have

“primacy” over domestic courts, which means that the Prosecutor can at

any moment require domestic courts that they defer proceedings to it

(the only exception is where a final judgment has already been rendered

domestically, in which case the threshold for the prosecutor is slightly

higher, to avoid double-jeopardy).

The ICC regime is different and is known as “complementarity”, perhaps

its defining principle. Domestic courts are to be encouraged to exercise

jurisdiction (for example through notification). A case will only be

admissible before the ICC where there is no domestic investigation or

prosecution or, when there is (or was) such investigation or

prosecution, when the way those are being carried out demonstrates

that “the State is unwilling or unable genuinely to carry (them) out.”53

The situation contemplated here is a paradoxical one in which the State

“appears” to be doing what is expected of him but in fact, through

excessive delays, or absence of independence and impartiality of the

courts, is seeking to “shield the accused”. There is speculation as to

whether “truth and reconciliation commissions”, such as the one that

existed in South Africa after Apartheid, would be compatible with a good

faith exercise of prosecutorial obligations in the case of international

crimes.

3.7 The relationship of international tribunals with states

Except in cases of occupation (e.g.: Nuremberg and Tokyo), the

relationship of ICTs with states, particularly the states on whose

territory crimes were committed, is crucial in terms of enforcement.

Cooperation will be needed, for example, to obtain the custody of the

accused, or even for the purposes of conducting investigations.

International tribunals have suffered in the past from considerable lack

53 Article 17 of the Rome Statute.

of cooperation, even in situations where technically states were bound

to comply with Security Council resolutions.

Some doctrinal constructions have helped. For example, the ad hoc

tribunals have insisted that suspects handed over to them are

“transferred” not “extradited”, thus speeding up the process

considerably. But confronted with repeated refusals to cooperate, even

by third states, there is little that the Presidents of the tribunals have

been able to do except “report” this to the Council.

It is worth noting that the ICC will be in a weaker position in terms of

cooperation than the ad hoc tribunals since it was not created by the

Council and there is no reason to expect that the Council would

necessarily lend it its enforcement muscle (except in cases where it

itself referred a “situation”).

3.8 Issues of prosecutorial discretion before

international tribunals

The centralization of international criminal enforcement puts

considerable power in the hands of the Prosecutor. This has led to a

regime formally guaranteeing prosecutors’ independence and

impartiality but, in view of the highly selective nature of international

prosecutions, there are concerns that the Prosecutor is wielding a

discretion that is essentially political, and potentially arbitrary. The

policies of various international prosecutors have at times raised alarm,

for example because they seemed opportunistic (e.g.: prosecute

whoever has already been arrested) or to concentrate on one party to a

conflict rather than another (e.g.: hutus rather than tutsis), or to never

direct their interest at the tribunal’s sponsors (e.g.: NATO’s bombing of

Kosovo). The ICC defines the Prosecutor’s discretion “by the negative”

by saying that he should not prosecute cases where to do so would not

be “in the interests of justice”. The received wisdom is that international

prosecutors should focus as much as possible on the gravest of

offenders to avoid accusations of political bias, even though who the

gravest offenders are is still a complex issue.

3.9 Procedure before international criminal tribunals

ICTs have had to develop their own international criminal procedure.

One innovation in the Statute of the ad hoc ICTs is that the judges were

3


required to adopt their own rules of procedure and evidence. Not only

have they done so, but they have subsequently reformed these rules

many times.

Although the procedure of the post-Second World War tribunals was

little formalized, the development of international human rights

standards in the interval meant that the 1990s ICTs could only adhere to

the highest standards of protection of the rights of the accused

(including, most notably, the presumption of innocence, and the right to

be tried by an independent and impartial tribunal). The Statutes of the

ICTY, ICTR and ICC all therefore incorporate almost verbatim article 9 of

the ICCPR which protects the right to a fair trial.

Having said that, international human rights law is quite a broad

framework and is compatible with a variety of concrete ways of

organizing the procedure. The strongest inspiration for the procedure of

ICTs has been the common law “accusatorial” (sometimes also known as

adversarial) model which emphasizes a confrontation between the

Prosecution and Defense on the basis of “equality of arms” before a

judge acting as a sort of neutral umpire. This system showed some signs

of strain under the pressure of very complex international trials. The

ability for each party to produce almost as many witnesses as they

wanted, for example, contributed very significantly to delays.

At one point, the record of the ICTR in terms of guaranteeing a

reasonably speedy trial fell so low that the Court in the Barayagwiza

case held that it had violated the rights of the accused and that the only

proper remedy was to release him (the decision was subsequently

revised). This has led both ad hoc tribunals and the ICC to make

significant steps towards a more “inquisitorial” model, inspired

occasionally by the criminal procedure of countries from the Romano-

Germanic tradition. The emergence of various pre-trial judges, and a

generally more proactive role of the trial judges in the court room are all

part of this trend.

In the end, though, the procedure of ICTs is very much sui generis:

neither common law, nor Romano-Germanic, but a unique attempt to

make sense of the specificities of international trials whilst relying on

existing practices and the overarching need to respect the rights of the

accused.

3.10 The role and status of victims

Traditionally, the criminal law is above all about punishing an individual

for a crime committed against public order, understood as a

combination of the state’s and society’s interests. Victims are notably

absent from this scheme (originally this is linked to a desire to

distinguish the criminal law from various forms of institutionalized

vengeance). ICL has been no different in that it initially paid very little

attention to victims, except possibly to protect them minimally when

appearing as witnesses.

Over the years, this has begun to change as more attention has been

paid to the needs of transitional justice in countries that have witnessed

mass atrocities. The ICC is the international court that has gone furthest

in accommodating the needs of victims by recognizing them as

participants at various stages of the pre-trial and trial phases (although

the procedure still falls short of recognizing them as “parties civiles”-

parties to the trial). Most notably, the ICC has a mandate to award

reparations to victims, directly as a judicial institution and through a

Victims’ Trust Fund that has been established for that purpose.

3.11 Hybrid tribunals

Caught somewhere between ICTs and domestic courts, hybrid tribunals

are novel and interesting, albeit still quite a marginal development.

There is no perfect definition of what a hybrid tribunal is (not a legal

term of art), except perhaps that it is a tribunal that is neither perfectly

international nor domestic. Good examples are the Special Court for

Sierra Leone and the Extraordinary Chambers for Cambodia. Although

by virtue of their mode of creation the former is formally an

international tribunal and the latter a domestic court, both are

interesting for the way they mix elements of both. For example, both

have a mix of local and foreign judges (with a clear international

majority for the SCSL and an arrangement more tilted towards

Cambodia in the case of the Chambers), and can also apply elements of

both international and domestic law. The Special Tribunal for Lebanon,

which was created to investigate the murder of Rafik Hariri, is

composed of international judges but applies principally Lebanese law.

A number of domestic judicial institutions administered by international

administrations (UNMIK, UNTAET) have also occasionally prosecuted

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international crimes, on the basis of similar mixed formulas. The War

Crimes Chamber in Bosnia Herzegovina is receiving a measure of

international assistance. This diversification of formulas suggests that

international criminal justice has reached a stage where, despite the

emergence of a permanent international institution like the ICC, there is

plenty of space for rich forms of jurisdictional experimentation.

4. Conclusion

ICL has witnessed an exponential growth over the last two decades, and

covers an increasing number of areas of both “public” and “private”

criminality. This has had a considerable impact on international law

generally.

Many ICL treaties indicate that they should be understood as “consistent

with the principles of sovereign equality and territorial integrity”. This

is true to an extent but ICL, even as it claims to respect sovereignty,

substantially redefines its contours. There are, in this, the seeds of a

paradox: ICL is an attempt at redefining, even reforming, sovereignty,

yet at the same time it relies substantially on states as its ultimate

enforcement arm. This is ultimately the key to understanding ICL’s

complex relationship to the general body of PIL.

There are many debates as to whether ICL “works” or not. What is

certain is that ICL represents a considerable political, ideological and

symbolic investment in the ability of criminal law tools to provide some

solutions to international woes. Whilst there is some evidence that a

culture of impunity can act as an objective encouragement to crime,

there should also be skepticism about what criminal law can deliver

given its persistently ambiguous record domestically. Repressive

prescriptions can also have the result, in at least some cases, of shifting

attention away from the structural nature of problems and the need for

prevention, and of stigmatizing certain categories of a population.

P R A C T I C E Q U E S T I O N S

1.1 Question 1. Compare articles 6(c) of the Nuremberg Charter, 5 of

the ICTY Statute, 3 of the Statute of the ICTR, and 7 of the ICC

Statute. What is going on? How is the definition of crimes against

humanity evolving?

1.2 Question 2. What is different about when the ICC can exercise

jurisdiction compared to the ad hoc tribunals?

A N S W E R S T O P R A C T I C E Q U E S T I O N S

1.1 Answer 1. The notion of crimes against humanity has witnessed

a striking evolution. Article 6 (c) of the Nuremberg Charter was

interpreted so that crimes against humanity needed to have

been committed as a result of the commission of a crime against

peace. In other words, there was a linkage between war or

preparation for war, and crimes against humanity. The ICTY

Statute seemed to confirm this evolution, since it mentioned that

crimes against humanity must have been committed as part of

an armed conflict, even though it added that the conflict could be

either international or domestic. The ICTR Statute (and the ICC

Statute since), however, spoke of crimes against humanity

having been committed as part of a “widespread or systematic

attack”. Such an attack may occur as part of a conflict, but it need

not necessarily do so, and one can imagine crimes against

humanity being committed in times of (relative) peace. There

seems to be a general move away from the requirement of an

armed conflict, therefore, and towards a more general

understanding of political violence, which might be simply

violence exercised by the state against its population. Crimes

against humanity are increasingly a form of grave and

systematic violation of human rights.

Part of the Nuremberg definition of crimes against humanity also

emphasized some sort of discriminatory element, when it

described “persecutions on political, racial or religious grounds”.

This discriminatory element was taken up in the ICTR Statute

which speaks of attacks “against any civilian population on

national, political, ethnic, racial or religious grounds”. This

requirement seemed to bring crimes against humanity a little

closer to genocide (although there was no mention of a specific

intent, and in particular no intent to destroy). It was not

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included in the definition of crimes against humanity in the ICTY

Statute, however, except as the discreet “underlying offence” of

persecution, and has since also disappeared from the ICC Statute.

The general move therefore seems to lean towards the idea that

crimes against humanity are above all committed against civilian

populations and that, although in practice they may well target

specific groups, a crime is no less a crime against humanity

simply by virtue of being committed against that population at

large (indeed, one would think quite the contrary).

Behind these two major parallel developments, one can detect a

larger tendency for crimes against humanity to emancipate

themselves from both war crimes and genocide, and increasingly

emerge as a specific criminal offence designed to protect

“humanity” understood as both a group and a quality (“human-

ness”).

1.2

1.3 Answer 2. In some ways, the ICC’s jurisdiction is broader,

because the Court has a temporal jurisdiction that is open ended

in the future and potentially very broad geographically (not only

because of the high number of states parties, but also because it

has jurisdiction over both crimes committed on the territory and

by nationals of state parties). That extended jurisdiction,

however, comes with some extra strings attached. The ICC

Prosecutor’s hands are arguably more bound than those of his

ad hoc tribunal predecessors. If exercising his proprio motu

power to initiate investigations, the Prosecutor will need to get

his request to open an investigation approved by a pre-trial

chamber (something which was not required of the ad hoc

tribunals’ prosecutors). More importantly, defendants can

challenge the receivability of a case on the basis of the

complementarity regime. A case will only be receivable if no

domestic prosecutions have been launched or, when they have

been launched, only if the Prosecutor can prove that they are not

being conducted properly thus showing an “unwillingness” by

the state concerned to genuinely carry them out. Finally,

whereas all states were required to cooperate with the ad hoc

tribunals as a result of these having been created by a Security

Council resolution, only state parties to the ICC Statute are

required to cooperate with the Court, which promises to create

considerable difficulties in the assertion of jurisdiction.

T U T O R I A L Q U E S T I O N S

The international community has experienced with different forms of

prosecutions for international crimes. Which of (i) domestic trials, (ii)

universal jurisdiction, (iii) international criminal tribunals and (iv)

hybrid tribunals is the most appropriate, assuming that all are

reasonably functional?

TABLE OF CASES & TREATIES

Short Title Full citation

Akayesu Prosecutor v. Akayesu (Judgment)

ICTR-96-4-T, T-Ch-I (2 September

1998)

Aleksovski Prosecutor v. Zlatko Aleksovski

(Lašva Valley) (Judgment) ICTY-

95-14/1-A (24 March 2000)

Barayagwiza Jean-Bosco Barayagwiza v.

Prosecutor (Appeal Chamber)

ICTR-97-19-AR72 (3 November

1999).

Barcelona Traction, Light and

Power Co. Case

Barcelona Traction, Light & Power

Company, Limited (Preliminary

Objections, Judgment) [1964] ICJ

Rep 6 (Separate Opinion by Judge

Tanaka)

Eichmann Eichman’s Criminal Case No. 40/61,

District Court of Jerusalem

Erdemovic Prosecutor v. Erdemović

(Sentencing Judgement) IT-96-22-

Tbis (5 March 1998)

Ex parte Pinochet Bartle and the Commissioner of

Police for the Metropolis et al. ex

Parte Pinochet [1999] 38 ILM 581

Nikolic Prosecutor v. Nikolic (Decision on

3


Defence Motion Challenging the

Exercise of Jurisdiction by the

Tribunal) IT-94-2-PT (9 October

2002)

North Sea Continental Shelf Case North Sea Continental Shelf Case

(Judgment) [1969] ICJ Rep 3

Simić et al. Prosecutor v. Simić, Tadić, Zarić IT-

95-9-T (Trial Chamber II) (17

October 2003) Separate and Partly

Dissenting Opinion of Judge Per-

Johan Lindholm

Tadic Prosecutor v. Tadic (Appeal

Chamber) Decision on the Defense

Motion on Jurisdiction IT-94-1 (10

August 1995)

Trial of the Major War Criminals Trial of the Major War Criminals

before the International Military

Tribunal, Nürnberg, 14 November

1945-1 October 1946 (Nürnberg,

Germany, 1947) 223

Yerodia Case Concerning the Arrest

Warrant of 11 April 2000

(Democratic Republic of the Congo

v. Belgium) (Judgment) [2002] ICJ

Rep 3

Supplementary Convention on the

Abolition of Slavery

Supplementary Convention on the

Abolition of Slavery, the Slave

Trade, and Institutions and

Practices Similar to Slavery

(adopted 30 April 1956, entered

into force 30 April 1957) ESC Res

608(XXI)

Convention against Torture United Nations Convention against

Torture and Other Cruel, Inhuman

or Degrading Treatment or

Punishment (adopted 10

December 1984, entered into force

26 June 1987)

Convention against Transnational

Organized Crime

United Nations Convention against

Transnational Organized Crime

(adopted 15 November 2000,

entered into forced 29 September

2003) GA Res 55/25, annex I.

Convention on Narcotic Drugs Single Convention on Narcotic

Drugs (adopted 30 March 1961,

entered into force 13 December

1964)

Drug Trafficking Convention United Nations Convention against

Illicit Traffic in Narcotic Drugs and

Psychotropic Substances (adopted

20 December 1988, entered into

force 11 November 1990)

Genocide Convention Convention on the Prevention and

Punishmet of the Crime of

Genocide (adopted 9 December

1948, entered into force 12

January 1951) 78 U.N.T.S. 277

ICJ Statute Statute of the International Court

of Justice (as signed 1945)

ICTR Statute Statute of the International

Criminal Tribunal for the

Prosecution of Persons Responsible

for Genocide and Other Serious

Violations of International

Humanitarian Law Committed in

the Territory of Rwanda and Other

Such Violations Committed in the

Territory of Neighboring States, SC

Res 955, UN SCOR, 49th Sess.,

3453 mtg., Annex, UN Doc S/955

(1994)

ICTY Statute Statute of the International

Tribunal for the Prosecution of

Persons Responsible for Serious

3


Violations of International

Humanitarian Law Committed in

the Territory of the Former

Yugoslavia since 1991, SC Res 827,

UN SCOR, 48th Sess., 3217th mtg.,

Annex, UN Doc S/827 (1993)

Rome Statute Rome Statute of the International

Criminal Court, United Nations

Diplomatic Conference of

Plenipotentiaries on the

Establishment of an International

Criminal Court, July 17, 1998, U.N.

Doc. A/CONF.183/9

UNCLOS UN Convention on the Law of the

Sea (adopted 10 December 1982,

entered into force 16 November

1994)

UNCAC UN Convention against Corruption

(adopted 31 October 2003,

entered into force 14 December

2005) GA Res 58/4

International Criminal Law (2008)

Documents

Transcript of International Criminal Law (2008)