International Law - International Criminal Law

What is International Criminal Law?

International Criminal Law refers to the ability to prosecute crimes in international criminal courts using international, instead of national, criminal laws. Crimes such as slavery and piracy are crimes against international law and may be tried by international bodies, or by ANY State.

There are four core crimes: Genocide, Crimes Against Humanity, War Crimes, and Aggression

International Crimes

  • Genocide
  • Crimes against humanity
  • War crimes
  • Aggression
  • Drug trafficking?
  • Hijacking?
  • Torture?
  • Terrorism?

Sources of International Criminal Law

Article 21 of the Rome Statute defines the sources of International Criminal Law as being treaty law, customary international law, general principles, etc It is also important to look at International humanitarian law rules and International human rights standards, as well as precedent.

Note: Nullem crimen sine lege.

Rome Statute Article 21: Applicable law

1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, 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 this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

ICC Elements of Crime

To help the ICC interpret and apply the provisions of the Rome Statute the ICC Elements of Crime were developed.

"Genocide by killing - Elements

1. The perpetrator killed one of more persons.

2.Such person or persons belonged to a particular national, ethnical, racial, or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4.The conduct took place in the context of a manifest pattern of similar conduct directed against that group, or was conducted in a manner which itself could effect such destruction.

Genocide and Mens Rea


Genocide has a twofold requirement, the intent to commit the crime (e.g. murder) and the special intent requried for genocide. (To destroy in whole or part a protected group.)

Crimes Against Humanity

Rome Statute Article 7 lists the crimes against humanity.

Mens Rea

The perpetrator must have the intention to commit the crime, and have knowledge of the wider context of attack on the civilian population.

War Crimes

War crimes concern violations of international humanitarian law during warfare. These laws are found in international conventions regulating protection of people and property during war. e.g. prisoners, civilians, civilians' homes etc.

For a war crime to be committed, there must have been a grave breach against persons or property protected by the Geneva Conventions.

Non-International Armed Conflicts

See Article 8(2)(c) of the Rome Statute for a detailed analysis of what constitutes non-international armed conflicts.

Aggression

See Article 8 bis - Crime of Aggression.

The crime of aggression means the planning, preparation, initiation or execution by a person in a position of control over political or military action of a State which by its character gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Prosecuting International Crimes

Modes of Liability

See Article 25 Rome Statute for individual criminal responsibility.

For the responsibility of commanders and superiors see Article 28 Rome Statute.

Defences

Article 31, 32 and 33 of the Rome Statute detail defences against criminal prosecution.

Immunity

Article 27 of the Rome Statute makes it clear that there is NO immunity for anyone, even Heads of State.

Definitions

jus ad bellum - Reasons you use force in wars.

jus in bello - How you use force in wars,

Nullem crimen sine lege - No crime without law.

Cases

Nuremberg Trial

"Crimes against international law are committed by men, not by abstract entities..."

Prosecutor v. Akayesu (1998)

Rape was used against Tutsi women. The court held that the rapes were systemic and perpetuated against all Tutsi women, and solely against them. Thus, it was held that rape caused serious physical and psychological harm to a targeted group, and could constitute genocide.

Prosecutor v. Todorovic (2001)

Two purposive considerations form the backdrop against which a criminal's sentence must be determined, these are retribution and deterrence.

For retribution, the punishment must be proportionate to the wrongdoing.

For deterrence, the court held that the deterrent value must be enough to ensure that those who would consider committing similar crimes would be dissuaded from doing so.

Prosecutor v. Bagilishema (2001)

What makes a national, religious, ethnical or racial group has no internationally accepted definition therefor each of there concepts must be assessed in particular social, historical, political and cultural contexts.

Prosecutor v. Kunarac (2002)

The mens rea for crimes against humanity is that the perpetrator must have the intention to commit the crime, and have knowledge of the wider context of attack on the civilian population.

Bosnia and Herzegovina v Serbia and Montenegro (2007)

In genocide cases the group affected must have particular positive characteristics, national ethnical, racial or religious - and not the lack of them. The intent must also relate to the group, this means that the crime needs an intent to destroy a collection of people who have a particular group identity. It matters what the people are, not what they are not.

Legislation/Treaties

Convention on the Prevention and Punishment of the Crime of Genocide 1948

Statute of the International Criminal Tribunal for the former Yugoslavia (1993)

Statute of the International Criminal Tribunal for Rwanda (1994)

Rome Statute (1998)

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