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This market-leading textbook gives an authoritative account of international criminal law, and focuses on what the student needs to know - the crimes that are dealt with by international courts and tribunals as well as the procedures that police the investigation and prosecution of those crimes. The reader is guided through controversies with an accessible, yet sophisticated approach by the author team of four international lawyers, with experience both of teaching the subject, and as negotiators at the foundation of the International Criminal Court and the Rome conference. It is an invaluable introduction for all students of international criminal law and international relations, and now covers developments in the ICC, victims' rights, and alternatives to international criminal justice, as well as including extended coverage of terrorism. Short, well chosen excerpts allow students to familiarise themselves with primary material from a wide range of sources. An extensive package of online resources is also available.
Cambridge University Press
9780521876094 - An Introduction to International Criminal Law and Procedure - by Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst
Introduction: What is International Criminal Law?
1.1 International criminal law
International law typically governs the rights and responsibilities of States;1 criminal law, conversely, is paradigmatically concerned with prohibitions addressed to individuals, violations of which are subject to penal sanction by a State.2 The development of a body of international criminal law which imposes responsibilities directly on individuals and punishes violations through international mechanisms is relatively recent. It was not until the 1990s, with the establishment of the ad hoc Tribunals for the former Yugoslavia and for Rwanda, that it could be said that an international criminal law regime had evolved. This is a relatively new body of law which is not yet uniform, nor are its courts universal.
International criminal law developed from various sources. War crimes originate from the ‘laws and customs of war’, which accord certain protections to individuals in conflict situations. Genocide and crimes against humanity evolved to protect persons from gross human rights abuses including those committed by their own governments. With theprobable exception of the crime of aggression with its focus on inter-State conflict, the concern of international criminal law is now with individuals and with their protection from wide-scale atrocities. As was said by the Appeal Chamber in the Tadić case in the International Criminal Tribunal for the former Yugoslavia (ICTY):
A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach … [I]nternational law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings …3
The meaning of the phrase ‘international criminal law’ depends on its use, but there is a plethora of definitions, not all of which are consistent. The most dedicated chronicler of uses of ‘international criminal law’, Georg Schwarzenberger,4 described six different meanings that have been attributed to it, all of which related to international law, criminal law and their interrelationship, but none of which referred to any existing body of international law which directly created offences that could be committed by individuals; Schwarzenberger believed that no such law existed at the time. ‘An international crime’, he said in reference to the question of the status of aggression, ‘presupposes the existence of an international criminal law. Such a branch of international law does not exist.’5
Cherif Bassiouni,6 on the other hand (and writing almost half a century later), listed 25 categories of international crimes, being crimes which affect a significant international interest or consist of egregious conduct offending commonly shared values, which involve more than the State because of differences of nationality of victims or perpetrators or the means employed, or which concern a lesser protected interest which cannot be defended without international criminalization. His categories include, as well as the more familiar ones, traffic in obscene materials, falsification and counterfeiting, damage to submarine cables, and unlawful interference with mail.
Different meanings of international criminal law have their own utility for their different purposes and there is no reason to decide upon one meaning as the ‘right’ one.7 Nevertheless, it is advisable from the outset to be clear about the sense in which the term is used in any particular situation. In this chapter we will attempt to elaborate the meaning which we give to the term for the purposes of this book and compare it with others.
1.1.1 Crimes within the jurisdiction of an international court or tribunal
The approach taken in this book is to use ‘international crime’ to refer to those offences over which international courts or tribunals have been given jurisdiction under general international law. They comprise the so-called ‘core’ crimes of genocide, crimes against humanity, war crimes, and the crime of aggression (also known as the crime against peace). Our use thus does not include piracy, slavery, torture, terrorism, drug trafficking, and many crimes which States Parties to various treaties are under an obligation to criminalize in their domestic law. But because a number of the practical issues surrounding the repression of these crimes are similar to those relating to international crimes, they are discussed in this book, although only terrorist offences and torture will be discussed in any detail. Some of them (terrorist offences, drug trafficking and individual acts of torture) have been suggested as suitable for inclusion within the jurisdiction of the International Criminal Court (ICC)8 and may therefore constitute international crimes within our meaning at some time in the future.
Our approach does not differentiate the core crimes from others as a matter of principle, but only pragmatically, by reason of the fact that no other crimes are currently within the jurisdiction of international courts. However, it is clear that since these crimes have a basis in international law, they are also regarded by the international community as violating or threatening values protected by general international law.
‘International criminal law’, as used in this book, encompasses not only the law concerning genocide, crimes against humanity, war crimes and aggression, but also the principles and procedures governing the international investigation and prosecution of these crimes. As we shall see, in practice the greater part of the enforcement of international criminal law is undertaken by domestic authorities. The principle of complementarity, which is fundamental to the whole of international criminal law enforcement, shows that national courts both are, and are intended to be, an integral and essential part of the enforcement of international criminal law.9 In this book therefore we shall cover not only the international prosecution of international crimes, but also various international aspects of their domestic investigation and prosecution.
1.2 Other concepts of international criminal law
1.2.1 Transnational criminal law
Until the establishment of the international courts and tribunals in the 1990s, the concept of international criminal law tended to be used to refer to those parts of a State’s domestic criminal law which deal with transnational crimes, that is, crimes with actual or potential transborder effects. This body of law is now more appropriately termed ‘transnational criminal law’. A similar terminological distinction between ‘international criminal law’ (criminal aspects of international law) and ‘transnational criminal law’ (international aspects of national criminal law) can also be found in other languages, such as German (‘Völkerstrafrecht’ compared with ‘Internationales Strafrecht’), French (‘droit international pénal’ and ‘droit pénal international’) and Spanish (‘derecho internacional penal’ and ‘derecho penal internacional’).
Transnational criminal law includes the rules of national jurisdiction under which a State enacts and enforces its own criminal law where there is some transnational aspect of a crime. It also covers methods of cooperation among States to deal with domestic offences and offenders where there is a foreign element and the treaties which have been concluded to establish this inter-State cooperation. These treaties provide for mutual legal assistance between States in respect of crimes with a foreign element, and extradition of offenders by one State for prosecution in another State. Other treaties require States to criminalize certain conduct by creating offences in their domestic law and to bring offenders to justice if found on their territory, or to extradite them to States that will prosecute. While international law is thus the source of a part of this group of rules, the source of criminal prohibitions on individuals is national law.10
Until recently, there was not a clear distinction in the literature between international criminal law with its more restricted meaning and transnational law. Transnational law, with its focus on domestic criminal law and on methods of inter-State cooperation in the sphere of criminal law, remains the body of ‘international criminal law’ with which national legal practitioners are most familiar. Providing full coverage of this body of law would require a volume in its own right. Our discussion of it will address only issues of State jurisdiction, such obstacles to national prosecution as immunities, and State cooperation in national proceedings relating to international crimes; we deal with ‘transnational crimes’ only in so far as they raise cognate issues to international crimes.
1.2.2 International criminal law as a set of rules to protect the values of the international order
Another, and more substantive, approach to determining the scope of ‘international criminal law’ is to look at the values which are protected by international law’s prohibitions.11 Under this approach international crimes are considered to be those which are of concern to the international community as a whole (a description which is not of great precision), or acts which violate a fundamental interest protected by international law. Early examples include the suppression of the slave trade. The ICC Statute uses the term ‘the most serious crimes of concern to the international community as a whole’ almost as a definition of the core crimes,12 and recognizes that such crimes ‘threaten the peace, security and well-being of the world’.13
It is of course true that those crimes which are regulated or created by international law are of concern to the international community; they are usually ones which threaten international interests or fundamental values.14 But there can be a risk in defining international criminal law in this manner, as it implies a coherence in the international criminalization process which may not exist. The behaviour which is directly or indirectly subject to international law is not easily reducible to abstract formulae. Even if it were, it is not clear that these formulae would be sufficiently determinate to provide a useful guide for the future development of law, although arguments from coherence with respect to the ambit of international criminal law can have an impact on the development of the law (as has occurred in relation to the law of war crimes in non-international armed conflict).15
1.2.3 Involvement of a State
Another approach to defining ‘international crimes’ relies upon State involvement in their commission.16 There is some sense in this. For example, aggression is necessarily a crime of the State, committed by high-level State agents. War crimes, genocide and crimes against humanity often, perhaps typically, have some element of State agency. But the subject matter of international criminal law, as we use it, deals with the liability of individuals, irrespective of whether or not they are agents of a State. In the definition of the crimes which we take as being constitutive of substantive international criminal law, the status of the perpetrator is irrelevant, with the exception of the crime of aggression.17
1.2.4 Crimes created by international law
An international crime may also be defined as an offence which is created by international law itself, without requiring the intervention of domestic law. In the case of such crimes, international law imposes criminal responsibility directly on individuals. The classic statement of this form of international criminal law comes from the Nuremberg International Military Tribunal’s seminal statement that
crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced … individuals have international duties which transcend the national obligations of obedience imposed by the individual state.18
The definition of an international crime as one created by international law is now in frequent use.19 But this criterion may lead to fruitless debate as to what is and what is not ‘created’ by international law.20 The more pragmatic meaning used in this book, which we do not claim is authoritative, excludes from detailed discussion certain conduct which has been suggested to be subject to direct liability in international criminal law but which others dispute, such as piracy and slavery,21 a general offence of terrorism,22 and individual acts of torture.23
Occasionally the sui generis penal system of the international criminal tribunals and courts is described as ‘supranational criminal law’ in process of development.24 This term is somewhat misleading since it is normally reserved for law imposed by supranational institutions and not treaty-based or customary international law;25 the ICTY, International Criminal Tribunal for Rwanda (ICTR) and ICC are not supranational in nature, neither as institutions nor as regards the laws they enforce.
1.3 Sources of international criminal law
As international criminal law is a subset of international law, its sources are those of international law. These are usually considered to be those enumerated in Article 38(1) (a)–(d) of the Statute of the International Court of Justice, in other words, treaty law, customary law, general principles of law and, as a subsidiary means of determining the law, judicial decisions and the writings of the most qualified publicists. As will be seen, all of these have been used by the ad hoc Tribunals. They are available for use by national courts in so far as the national system concerned will allow. The ICC Statute contains its own set of sources for the ICC to apply, which are analogous, although by no means identical, to those in the ICJ Statute.26
Treaty-based sources of international criminal law, either directly or as an aid to interpretation, include the 1907 Hague Regulations, the 1949 Geneva Conventions (and their additional protocols) and the Genocide Convention. They form the basis for many of the crimes within the jurisdiction of the ad hoc Tribunals and the ICC. The Statute of the ICC, which sets out the definitions of crimes within the jurisdiction of the ICC, is, of course, itself a treaty. Security Council resolutions 827(2003) and 955(2004), which set up the ICTY and ICTR respectively, were adopted by the Security Council pursuant to its powers under Chapter VII of the UN Charter, and thus find their binding force in Article 25 of the Charter. Their source is therefore a treaty. The Statutes of the Tribunals have had an important effect on the substance of international criminal law both directly, as applied by the Tribunals, and indirectly as a source for other international criminal law instruments;27 the influence of the ICC Statute has so far largely been through its impact on national legislation.
It has been suggested that treaties might not suffice to place liability directly on individuals28 and cannot be a direct source of the law for that reason. Such arguments run up against long-standing practice in international humanitarian law, which has been to apply to individuals the ‘laws and customs of war’ as found in the relevant treaties, as well as in customary law. As the Permanent Court of International Justice noted about eighty years ago, treaties can operate directly on individuals, if that is the intent of the drafters.29 The International Committee for the Red Cross and Red Crescent (ICRC) study on customary humanitarian law reports that ‘the vast majority of practice does not limit the concept of war crimes to violations of customary international law. Almost all military manuals and criminal codes refer to violations of both customary law and applicable treaty law.’30 That does not mean that every provision of the Geneva Conventions, for example, imposes direct criminal responsibility on individuals. Breach of some of them, for example those regarding the finest details of the treatment of detainees, would probably not constitute a war crime.31
It is only those treaties or provisions of a treaty which are intended to apply directly to an individual that can give rise to criminal responsibility. The ‘suppression conventions’, for example, which require States to criminalize conduct such as drug trafficking, hijacking and terrorist bombing32 are not generally regarded as creating individual criminal responsibility of themselves; the conduct covered by those treaties will be incorporated in national law by whatever constitutional method is used by the State concerned. Further, if a court is to apply the terms of a treaty directly to an individual, it will be necessary to show that the prohibited conduct has taken place in the territory of a State Party to the treaty or is otherwise subject to the law of such a Party.33 The practice of the ICTY has been, with occasional deviations,34 to accept that treaties may suffice to found criminal liability. This began with the Tadić decision of 1995 and the position was unambiguously reasserted in the Kordić and Čerkez Appeal.35
1.3.2 Customary international law
The ICTY has accepted that when its Statute does not regulate a matter, customary international law, and general principles, ought to be referred to.36 Customary international law, that body of law which derives from the practice of States accompanied by opinio iuris (the belief that what is done is required by or in accordance with law),37 has the disadvantage of all unwritten law in that it may be difficult to ascertain its content. This is not always the case, however, when the customary law originates with a treaty or other written instrument, for example a General Assembly resolution, which is accepted as reflecting custom, or has been recognized by a court as such.38 Nevertheless the use of customary international law in international criminal law has sometimes been criticized on the basis that it may be too vague to found criminal liability39 or, even, that no law that is unwritten should suffice to found criminal liability. These assertions will be discussed below at section 1.5.1 in relation to the principle of nullum crimen sine lege.
1.3.3 General principles of law and subsidiary means of determining the law
The ICTY has resorted to general principles of law to assist it in its search for the applicable rule of international law. Owing to the differences between international trials and trials at the national level the ICTY has been chary of uncritical reliance on general principles taken from domestic legal systems and acontextual application of them to international trials.40 That said, the ICTY and ICTR have both resorted to national laws to assist them in determining the relevant international law through this source. As was said in the Furundžija decision, however, care must be taken when using such legislation, not to look simply to one of the major legal systems of the world, as ‘international courts must draw upon the general concepts and legal institutions common to all the major legal systems of the world’.41 In relation to criminal law, general principles of law are not ideal. After all they are, by their nature, general, and thus tend to be a last resort. Also, as the Erdemović case showed, at times there simply is no general enough principle to apply.42
As regards the ICC, it is to apply, where the first two categories of law do not provide an answer:
… 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, provided that those principles are not inconsistent with [the] Statute and with international law and internationally recognized norms and standards.43
The ICC may also apply ‘principles and rules of law as interpreted in its previous decisions’.44 The ICC is not however bound by its previous decisions; it has no equivalent to the common law principle of stare decisis. The ICTY has frequently had recourse to judicial decisions for determining issues of law, and has constructed a system of precedents for dealing with its own jurisprudence.45 The ICTY and ICTR have had reference to domestic, as well as international, case law.46 Domestic case law is a major material source of evidence about international criminal law. However, a caveat must be entered in this regard. The assertions of international law in domestic cases can be affected by local idiosyncrasies. These can arise from the domestic statutes that are being evaluated or applied, or from a court seeing international criminal law through a distinctly national lens.47
Finally, although the writings of scholars are not, in themselves, sources of international criminal law, it is possible to have recourse to the views of scholars.48 However, care must always be taken to ensure that the statements relied on are accurate statements of the law as it stands, rather than a statement of how the author would like the law to be; this is important, not least because of the nullum crimen sine lege principle.49
1.4 International criminal law and other areas of law
International criminal law relates to other areas of international law. The three areas for which an understanding is the most important are human rights law, international humanitarian law and the law relating to State responsibility.
1.4.1 International criminal law and human rights law
The development of crimes against humanity and the law of human rights was partially inspired by a wish to ensure that the atrocities that characterized Nazi Germany were not repeated. Thus the modern law of human rights and a considerable part of international criminal law have a common base.50 More recent developments in the enforcement of international criminal law, in particular the creation of the two ad hoc Tribunals, were introduced in response to mass abuses of human rights by States against their own citizens or others within their territory. International criminal law developed in this context to respond to egregious violations of human rights in the absence of effective alternative mechanisms.
Human rights obligations are imposed primarily on States, and it is frequently State agents who are the transgressors; where States are not implementing their human rights obligations, the principles of international criminal law are a useful and necessary alternative to State responsibility. The similarities in the objectives of both bodies of law are clear; both seek to provide a minimum standard of humane treatment. Both, unlike most other branches of international law, have a direct impact on individuals.
The international instruments on human rights played an obvious part in the drafting of the Statutes of the two ad hoc Tribunals and in the Statute of the ICC.51 And the ad hoc Tribunals have used human rights law, and decisions of international bodies applying that law, to assist them in their interpretation of substantive international criminal law and in establishing new procedural concepts of law. For example, the ICTY in Kunarac52 explained its past practice thus:
[b]ecause of the paucity of precedent in the field of international humanitarian law, the Tribunal has, on many occasions, had recourse to instruments and practices developed in the field of human rights law. Because of their resemblance, in terms of goals, values and terminology, such recourse is generally a welcome and needed assistance to determine the content of customary international law in the field of humanitarian law.
The ICTR has used human rights jurisprudence on hate speech and freedom of expression to assist it in drawing the boundaries of the offence of direct and public incitement of genocide in the case of the Rwandan Radio Station RTLM.53 In the area of international procedural law and, in particular, the right to a fair trial, the Tribunals have been especially ready to draw from human rights law. In Dokmanović, for example, the ICTY affirmed that an arrest must be made ‘in accordance with procedures prescribed by law’, as indicated in Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 9(1) of the International Covenant of Civil and Political Rights.54 In Tadić, the Appeals Chamber recognized that a general principle of law may have its source in human rights instruments, in that case the principle that the Tribunal had to be ‘established by law’.55
Nonetheless, although there are overlaps between human rights law and international criminal law, they are not synonymous, and there are dangers in treating them as being so. Almost every international crime would be a violation of human rights law, but the converse does not apply. International criminal courts and tribunals do not exist to prosecute breaches of the whole panoply of human rights. Further, human rights obligations are primarily imposed upon States, not individuals, and it is for
Part I. Introduction: 1. Introduction: what is international criminal law?; 2. The objectives of international criminal law; Part II. Prosecutions in National Courts: 3. Jurisdiction; 4. National prosecutions of international crimes; 5. State cooperation with respect to national proceedings; Part III. International Prosecutions: 6. The history of international criminal prosecutions: Nuremberg and Tokyo; 7. The ad hoc international criminal tribunals; 8. The International Criminal Court; 9. Other courts with international elements; 10. Genocide; 11. Crimes against humanity; 12. War crimes; 13. Aggression; 14. Transnational crimes, terrorism and torture; Part IV. Principles and Procedures of International Prosecutions: 15. General principles of liability; 16. Defences/grounds for excluding criminal responsibility; 17. Procedures of international criminal investigations and prosecutions; 18. Victims in the international criminal process; 19. Sentencing and penalties; Part V. Relationship between National and International Systems: 20. State cooperation with the international courts and tribunals; 21. Immunities; 22. Alternatives and complements to criminal prosecution; 23. The future of international criminal law.