International Criminal Law is a body of
international rules which, on one hand, prescribes international crimes and
imposes upon States the obligation to prosecute and punish at least some of
these crimes, and, on the other hand,
regulates international proceedings for prosecuting and trying persons
accused of such crimes.[2] It is a relatively new branch of Public
International Law. Its rules have come
into being by gradual accretion. It
consists of two parts, “substantive criminal law” and “procedural criminal
law”.[3] “Substantive criminal law” is the set of
rules indicating what acts constitute international crimes, as well as on what
conditions States may and must, under International Law, prosecute or bring to
trail persons accused of one of these crimes.
“Procedural criminal law” is the set of rules regulating the various
stages of international trials for the prosecution of accused criminals.
The substantive and procedural rules of
International Criminal Law are found, mainly, in the various treaties of the
International Humanitarian Law, and in various statutes of international
criminal tribunals. Examples of the
relevant treaties of International Humanitarian Law are: the 1899 and 1907 Hague Conventions,[4]
the four 1949 Geneva Conventions,[5]
the two 1977 Additional Protocols to the Geneva Conventions,[6]
the various treaties prohibiting the use of certain weapons, and the various
treaties related to certain international crimes such as the 1948 Convention on
Genocide,[7]
the 1984 Convention against Torture,[8]
and the various treaties on terrorism.
Examples of the statutes of various international criminal tribunals
are: the 1945 Statute of the International Military Tribunal for the Major War
Criminals at Nuremberg (IMT), the 1946 Statute of the International Military
Tribunal for the Far East (IMTFE), the 1993 Statute of the International
Criminal Tribunal for the former Yugoslavia (ICTY), the 1994 Statute of the
International Criminal Tribunal for Rwanda (ICTR), and the 1998 Statute of the
International Criminal Court (ICC).
International Criminal Law has established
individual responsibility, with criminal sanctions, for non-observance of the
rules of International Humanitarian Law.
This responsibility applies to each individual, who must answer for his
conduct, even when acting on orders from a superior. A superior is liable to criminal
prosecution. The Head of State may have
to answer for his actions.
The rules of the International Criminal
Law will be the subject of the following sections: The first section will deal with
international crimes; and the second section will deal with the prosecution and
punishment of international crimes by national courts as well as by international
tribunals.
Section
1: International Crimes
International crimes are breaches of
international rules entailing the personal criminal liability of individuals
concerned. [9] They are
crimes of concern to international community as a whole. The list of international crimes, acts which
are prohibited under International Law and which makes their authors criminally
liable, has come into being by gradual accretion.[10] Traditionally, in the Seventeenth to the
Nineteenth Centuries, piracy was considered an international crime. Apart of this traditional crime, initially,
in late Nineteenth Century only war crimes were considered international crimes
and were punishable.[11] It is only since the Second World War that
new categories of international crimes have developed.[12] The 1945 Statute of the International
Military Tribunal for the Major War Criminals at Nuremberg (IMT) and the 1946
Statutes of the International Military Tribunal for the Far East (IMTFE) added
new classes of international crimes to “war crimes”, namely “crimes against
humanity” and “crimes against peace”.
“Crime of genocide”, which was considered as a special subcategory of
crimes against humanity, became an autonomous class of crime in 1948, when the
General Assembly of the United Nations adopted the Genocide Convention.[13] “Wars of aggression”, which were one of the
subcategories of the broad category of “crimes against peace”, themselves
became a category of international crimes replacing what was known as “crimes
against peace” when the G.A adopted its Resolution on the Definition of
Aggression in 1974.[14] Recently, acts of international terrorism
have been added as a distinct international crime.
The contemporary list of international
crimes is formulated in the 1998 Rome Statute of the International Criminal
Court (ICC). Article 5 of the Statute
lists the international crimes over which the Court has a jurisdiction as the
following: (1) The crime of genocide;
(2) Crimes against humanity; (3) War crimes; and (4) The Crime of aggression.
1. The Crime of Genocide
“Genocide” is the intentional killing,
destruction, or extermination of groups or members of a group as such.[15] The ICC Statute defines “genocide” to mean
any of the following acts committed with intend to destroy, in whole or in
part, a national, ethnical, racial or religious group:[16]
(a)
Killing members of the group;
(b)
Causing serious bodily or mental harm to members of the group;
(c)
Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d)
Imposing measures intended to prevent birth within the group; and
(e)
Forcibly transferring children of the group to another group.
2. Crimes against Humanity
“Crimes against humanity” are odious
offenses that constitute a serious attack on human dignity or a grave
humiliation or degradation of one or more human beings, committed as part of
either of a governmental policy, or of a widespread or systematic practice of
atrocities tolerated, condoned, or acquiesced in by a government or a de
facto authority.[17] The acts which constitute such crimes are
prohibited and punishable, whether they are committed in time of war or peace.[18] The victims of such crimes may be civilians
or enemy combatants.[19]
The ICC defines “crime against humanity”
to mean any of the following acts when committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of
the attack:[20]
(a)
Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation or forcible transfer of population;
(e)
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of International law;
(f)
Torture;
(g)
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)
Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender, or other
grounds;
(i)
Enforced disappearance of persons;
(j)
The crimes of apartheid; and
(k)
Other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or
to mental or physical health.
3. War Crimes
War crimes are serious violations of
customary or treaty rules belonging to International Humanitarian Law or the
Law of War (the body of substantive rules comprising “the Law of the Hague ” and “the law of Geneva
The ICC Statute provides that the Court
shall have jurisdiction in respect of war crimes in particular when committed
as a part of a plan or policy or as part of a large-scale commission of such
crimes.[24] According to this Statute, “War crimes”
means:
(a)
Grave breaches of the 1949 Geneva Conventions, namely any of the acts
against protected persons or property such as willful killing, torture or
inhumane treatment, unlawful deportation or transfer or unlawful confinement,
taking hostages, and extensive destruction and appropriation of property not
justified by military necessary.[25]
(b)
Serious violations of the laws
and customs applicable in international armed conflicts or in armed conflicts
not of international character, within the established framework of
International Law, namely such as acts committed against the life and dignity of
persons; intentionally directing attacks against civilians, civilian
population, civilian objects, or against personnel, installations, material,
units or vehicles involved in humanitarian assistance; killing or wounded a
surrendering combatant; or employing prohibited weapons.[26]
4. Crimes of Aggression
The 1974 General Assembly Resolution on
the Definition of Aggression provides that aggression is the use of force by a
State against the sovereignty, territorial integrity or political independence
of another state, or in any other manner inconsistent with the Charter of the
United Nations.[27]
Accordingly, “war of aggression” is a crime against International Law which
gives rise to international responsibility.
Crimes of aggression comprise the following:[28]
(a)
The invasion of or the attack by the armed forces of a State on the
territory of another State, any military occupation, or any annexation by force
of the territory or part of the territory of another State;
(b)
Bombardment, or use of any weapon , by the armed forces of a State,
against the territory of another State;
(c)
Blockade of the ports or coast of a State by the armed forces of
another State;
(d)
Attack by the armed forces of a State on the land, sea, or air forces
of another State;
(e)
The sending by or on behalf of a State of armed bands, group,
irregulars, or mercenaries, which carry out acts of armed force against another
States.
Section 2: Prosecution of International Crimes
The Prosecution of individuals committing
international crimes has undergone a significant development throughout
History; prosecution exclusively by national courts to possible prosecution by
international courts, whether ad hoc or permanent.
A. Prosecution by National Courts to Prosecution by Ad Hoc International
Tribunals
Traditionally, individuals have been
subject to the exclusive jurisdiction of the State on whose territory they
live.[29]
Their Violations of international rules were prosecuted and punished by the
competent authority of the State where the acts of violations had been
committed. However, such prosecution and
punishment were not possible unless the State was authorized to do so under its
own national law, and it was willing to proceed.[30] If no prosecution and punishment had
happened, then the State, victim of the violation or of which the victim had
its nationality, was entitled to international claim against the delinquent
State, which had either to punish the perpetrators or pay compensation. In such case, what was involved was the
responsibility of the State. State
responsibility was founded on its failure to prosecute and punish the perpetrators.[31] Notably, it is necessary to mention that if a
wrongful act had been committed by a State official in his official capacity,
he was entitled abroad to immunity form jurisdiction (prosecution and
punishment).[32]
However, few exceptions to the above
tradition existed. One of the exceptions
was “piracy”, a practice which was widespread in the Seventeenth and Eighteenth
Centuries. “Piracy” was considered an international crime. “Pirates” were regarded as enemies of
humanity because they hampered the freedom of the high sea and infringed
private property. So all States were
empowered to search for, prosecute and punish pirates, regardless of the
nationality of the victims and of whether the prosecuting State had been
affected by piracy.[33]
Another exception was “war crimes”, which
gradually emerged as international crimes in the second half of the Nineteenth
Century.[34] Traditionally such crimes were defined as
violations of the laws of warfare committed by combatants in wars
(international armed conflicts).
Individuals acting as State officials, chiefly low-ranking members of
the armed forces, could be prosecuted and punished for violations of the laws
of warfare. They could be prosecuted and
punished, not only by their own States, but also by the enemy State. Actually, the exceptional character of war
warranted this deviation from the traditional rule, namely the immunity of
State’s officials from the jurisdiction of foreign States. For many years adversary States prosecuted
and punished the alleged perpetrators of war crimes on the basis of the
principle of “passive nationality” (the nationality of the victim), which
entitles a State to exercise jurisdiction over crimes committed against its
nationals.[35]
After the First World War, the Allied
Powers prosecuted and punished those guilty of war crimes either on the basis
of the principle of territoriality that entitles the State to exercise
jurisdiction over crimes committed on its territory, or on the basis of passive
nationality; in this later basis it was sufficient for the victim to have the
nationality of any of the Allied Powers.[36]
The creation of the International Military
Tribunal for the Major War Criminals (IMT) and the International Military
Tribunal for the Far East (IMTFE) in 1945 and 1946 respectively, and the
subsequent trails at Nuremburg and Tokyo of the German and Japanese war
criminals, marked a crucial turning point with regard to international crimes.[37] Two new categories of international crimes
were emerged: crimes against peace and crimes against humanity. State senior officials, high ranking military
officers, politicians and high ranking administrators, who were until 1945
protected by State sovereignty, became personally responsible for their
wrongdoings. They could be prosecuted by
international tribunals as well as by foreign States who could also punish
them.
With the adoption of the Geneva
Conventions in 1949, further important advances occurred as regards
international criminal law.[38] New groups of war crimes were added, namely
“grave breaches of the Geneva Conventions”.
An advanced system for repressing violations by States was set up. The principle of universality of jurisdiction
was laid down, according to which a contracting State could prosecute an
accused person held in its custody regardless of his nationality, of the nationality
of the victim, and of the place where the alleged violations had been
committed.
With the adoption of the Protocol II
Additional to the 1949 Geneva Conventions in 1977, and the creation of the two ad
hoc international tribunals, the International Criminal Tribunal for the
former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) in 1993 and 1994 respectively, a significant evolution of International
Criminal Law took place. The notion of
war crimes was extended to include serious violations of international
humanitarian rules governing internal armed conflicts. Violators of these rules
could be prosecuted by international tribunals.
A further significant evolution of
International Criminal Law finally took place with the adoption of the Statute
of the International Criminal Court (ICC) in 1998. The ICC was established as the permanent
international court for international criminal justice, and complementary to
national courts. An almost comprehensive
list of international crimes was formulated.
The apparent feature of International
Criminal Law today is the possibility of prosecution of international crimes by
national courts as well as by international tribunals, whether ad hoc
tribunals or the International Criminal Court
(ICC). In the following
subsection, we will deal with the prosecution by the ICC.
B. Prosecution by the International Criminal
Court (ICC)
The attempts to establish a permanent
international criminal court for the prosecution of individuals committing
international crimes succeeded when on 17 July 1998 the Statute of the
International Criminal Court (ICC) was signed at Rome The
Hague in the Netherlands
The Statute of the ICC provides that the
Court shall have international legal personality, and that it shall also have
such legal capacity as may be necessary for the exercise of its functions and
the fulfillment of its purposes. The court
may exercise its functions and powers, as provided in its statute, on the
territory of any state party and, by special agreement, on the territory of any
other State.[44]
According to the Statute of the ICC, the
Court is a permanent criminal court that has the power to exercise jurisdiction
over persons committing the most serious crimes of concern to the international
community as a whole, namely (a) The crimes of genocide; (b) Crimes against
humanity; (c) War crimes; and (d) The crime of aggression.[45] The ICC is complementary to the national
criminal jurisdictions.[46] National courts enjoy priority in the
exercise of jurisdiction over persons committing international crimes except
under special circumstances, when the ICC is entitled to take over and assert
its jurisdiction. The ICC is barred from
exercising its jurisdiction over crimes whenever a national court assets its
jurisdiction over the same crime and (1) under its national law the State has
jurisdiction, (2) the case is being duly investigated or prosecuted by its
authorities or these authorities decided, in a proper manner, not to prosecute
the person concerned, and (3) the case is not of sufficient gravity to justify
action by the ICC.[47] In addition, the ICC may not prosecute a
person whom already been convicted of or acquitted for the same crimes, if the
trail was fair and proper.[48]
Nevertheless, the ICC is authorized to
exercise its jurisdiction over a crime even if a case concerning that crime is
pending before national authorities, and thus to override national criminal
jurisdiction, whenever:
(1) the
State is unable or unwilling to carry out the investigation or prosecution the
person concerned, and (2) the case is of sufficient gravity to justify the
exercise of the ICC jurisdiction.[49] A State is “unable” when, because of a total
or partial collapse of its judicial system, it is not in a position to detain
the accused person, or to carry out criminal proceedings.[50] A State may be considered as “unwilling”
when: (1) in fact the national authorities have undertaken proceedings for the
purpose of shielding the concerned person from criminal responsibility, (2)
there has been an unjustified delay in the proceedings showing that in fact the
authorities do not intend to bring the concerned person to justice, or (3) the
proceedings are not being conducted independently or impartially or in any case
in a manner showing the intend to bring the person to justice.[51]
The ICC may exercise its jurisdiction with
respect of any international crimes if such a crime is referred to the Prosecutor
of the ICC by a State Party to the Statute, or by the security Council acting
under Chapter VII of the Charter of the United Nations, or if the Prosecutor
has initiated an investigation in respect of such a crime.[52] A State Party may refer to the Prosecutor a
situation in which one or more crimes within the jurisdiction of the Court
appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons
should be charged with the commission of such crimes. The Prosecutor may initiate investigation
based on information on crimes within the jurisdiction of the Court.
According to the Statute of the ICC, the
Court has a jurisdiction over natural persons who commit crimes within its
jurisdiction.[53] A person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court if that
person: commits such a crime; orders, solicits or induce the commission of such
a crime; facilitating the commission of such a crime; contributing in any way
to the commission or attempted commission of such a crime; or attempts to
commit such a crime.
Criminal responsibility and liability
under the Statute of the ICC shall be applied to all persons without any
distinction based on official capacity.[54] In particular, official capacity as a Head of
State or Government, a member of a Government or parliament, an elected
representatives or a government official shall in no case exempt a person from
criminal responsibility under the Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or International Law, shall not
bar the Court from exercising its jurisdiction over such a person.
According to its Statute, the ICC may
impose the following penalties:
(a)
Imprisonment for a specified number of years, which may not exceed a maximum of
30 years; or (b) A term of life imprisonment.[55] In addition to imprisonment, the Court may
order: (a) A fine; or (b) A forfeiture of proceeds, property and assets derived
directly or indirectly from that crime.[56]
[1] See generally A. Cassese, International
Criminal Law, Oxford (2003); A. Cassese, P.
Gaeta and W.D. Jones (eds.), The Rome Statute of International Criminal
Court – A Commentary, Oxford
[2] See
Cassese, p. 15.
[3] Id.
[4] Texts in Nouveau Recueil général des traites, 2nd series, vol.
26 ; and 3rd series, vol. 3.
[5] Texts in The Geneva
Conventions of August 12, 1949, ICRC Publication, Geneva
[6] Text in Protocols
Additional to the Geneva Conventions of 12 August 1949, rev. ed., ICRC
Publication, Geneva (1996).
[7] Text in 78 U.N.T.S. 277.
[8] Text in 24 I.L.M. (1985) 535.
[9] Cassese, p. 23.
[10] Id.
p. 16.
[11] Id.
[12] Id.
[13] Supra
note 7.
[14] G.A.
Res. 3314 (XXIX), 29 GAOR Supp. 31, U.N. Doc. A/9631, at 142 (1974).
[15]
Cassese, p. 96.
[16] ICC
Statute art. 6. For the Text of the ICC
Statute (Rome Statute of the International Criminal Court) see www.un.org/icc .
[17]
Cassese, p. 64.
[18] Id.
[19] Id.
[20] ICC
Statute art. 7.
[21] See
Cassese, p. 47.
[22] Id.
[23] Id.
p. 48.
[24] ICC
Statute art. 7(1).
[25] Id.
art. 8(2)(a).
[26] ICC
Statute art. 8(2)(b).
[27]
Definition of Aggression art. 1.
[28] Id.
art. 3.
[29]
Cassese, p. 37.
[30] Id.
[31] Id.
[32] Id.
p. 38.
[33] Id.
[34] Id.
[35] Id.
p. 39.
[36] Id.
p. 40.
[37] Id.
[38] Id.
[39] See
generally H. Fujita, Establishment of the International Criminal Court –
Historic Significance of the Rome Statute, 42 A.J.I.L. (1999) pp. 32-61.
[40] ICC
Statute arts. 1 & 5.
[41] Id.
art. 3(1).
[42] Id.
art. 2.
[43] Id.
art. 1.
[44] Id.
art. 4.
[45] Id.
art. 5.
[46] Id.
art. 1.
[47] Id.
art. 17.
[48] Id.
art. 17(1)(c).
[49] Id.
art. 17. See Cassese, p. 352.
[50] Id.
arts. 17(3) & 20.
[51] Id.
art. 17(2).
[52] Id,
art. 13.
[53] Id.
art. 25.
[54] Id.
art. 27.
[55] Id.
art. 77(1).
[56] Id.
art. 77(2).
