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
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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.
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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.
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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.
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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
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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).
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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.
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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.
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“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).
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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.
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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.
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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).
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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
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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
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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
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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
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