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International Criminal Law and Procedure
Te gebruiken bij
Auteur(s): Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst
Druk/Jaar van uitgave: 2e, 2010
Zoek recente samenvattingen & studiehulp
Part A: Introduction
Chapter 1: Aspects of international criminal law
Public international law primarily regulates interactions between States. However, international criminal law is mainly concerned with the conduct of individual persons. If persons violate international laws, that imposes the obligation on States to penalise such actions. International criminal law has been rapidly developing following the Second World War. This means that the broader field of international law is increasingly focusing on protecting humans rather than only the interests and obligations of States. An exception to this is that the crime of aggression can only be committed by (high-ranking) State officials. The project of international criminal law is quite recent.. Especially the Tribunals for the former Yugoslavia and Rwanda established in the 1990s have been important for its case law. International criminal courts and tribunals courts do not possess universal jurisdiction. Their rules are not always homogeneous or consistent. This can be explained partially by the fact that international criminal rules derive from a variety of sources. War crimes, for example, have developed from international humanitarian law. Genocide and crimes against humanity have evolved together with international human rights standards. War crimes, genocide, crimes against humanity and the crime of aggression constitute the most important crimes on which international law focuses. These are also the crimes to which the jurisdiction of the International Criminal Court is limited. Nevertheless, other international crimes also exist. These include piracy, drug trafficking, torture and terrorism. These crimes are grounded in international law. But currently they are not within the jurisdiction of any international court. In addition to the law on said crimes, international criminal law also concerns the regulation of international investigations and prosecutions. An important principle in international criminal law is that of complementarity. This principle holds that international criminal law supplements rather than co-opts domestic criminal law systems. Therefore, domestic courts play an indispensable role in the functioning of international criminal law.
Alternative ideas of international criminal law
The notion of international criminal law has not always meant what it does now. Before the creation of the ad hoc Tribunals for the former Yugoslavia and Rwanda, the notion of international criminal law referred to what is now called transnational criminal law. Transnational criminal law is concerned with crimes that have concrete or potential influence across the borders of States. This body of law contains the laws of domestic jurisdiction that a State may use to proclaim and apply its own system of law in cases concerning crimes that are somehow transnational. Moreover, transnational criminal law includes collaboration between States on crimes and perpetrators with some transnational aspect and treaties that facilitate such collaboration. This can be done by providing rules on, among other things, extradition, legal assistance and the creation of certain crimes in domestic bodies of law. Thus, international criminal law has a narrower scope than transnational criminal law.
There are also other ways of looking at international criminal law. Another such way is based on the notion that international crimes are by definition those that concern the international order as a whole. In this perspective, the international community seeks to secure its norms or interests. This doctrine was explicitly included in the Rome Statute of the International Criminal Court. It is problematic, however, that this notion implies that the ideas about
criminal law of individual States and the international community are always congruous with each other. It is also not always the case that ideas about criminal law can be expressed in such a way that they can indicate what is and what is not international criminal law. Nonetheless, ideas about the fundamental values of the international community have been of influence on the development of certain areas of law. Still another interpretation of what constitutes an international crime holds that a State must be involved in the commission of the crime. Indeed, crimes of aggression can only be committed by State officials, and this may be the case with respect to other international crimes. However, apart from the crime of aggression the concepts of other international crimes do not necessarily require that they be committed by agents of a State.
Alternatively, international crimes may be said to be created entirely by international law, supranationally. This means that domestic law systems play no role in the development of international criminal law. One could say that there is support for this idea in the Judgement of the International Military Tribunal in Nuremberg. In this Judgement, it was stated that individual persons possess international obligations that override the domestic duties that States impose on persons. Furthermore, the unique penal system of international criminal courts and tribunals have been described as supranational criminal law. However, this term is inaccurate. Supranational law usually refers to law created by supranational organisations instead of treaty law or customary law. The International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court are not based on supranational arrangements.
International criminal law sources
The sources of international criminal law are those of international law. These are mentioned in Article 38(1) of the Statute of the International Court of Justice: international treaties, international custom, the general principles of law, and, as a secondary method of identifying the law, judicial decisions and teachings of the most eminent publicists. All of these sources have been applied by the ad hoc Tribunals. The International Criminal Court has its proper set of sources, according to the Rome Statute.
There are many treaties relevant to international criminal law. A few of these are the Hague Regulations of 1907, the Geneva Conventions and their Protocols of 1949 and the Statute of the International Criminal Court. By virtue of the United Nations Charter, the Statutes of the Tribunals for the former Yugoslavia and Rwanda also possess a binding nature. The application of treaties in international criminal law is mostly uncontroversial. In international humanitarian law, treaties and custom have been consistently applied to individual persons. This does not automatically mean, however, that persons who have violated international treaties are also criminally liable. In any case, a treaty can only form the basis of a finding of individual criminal liability if that treaty was intended for that purpose. Treaties per se may function as the basis of an international criminal law. It is not required that such laws are simultaneously supported by other sources of international law such as custom.
The International Criminal Tribunal for the Former Yugoslavia has established that when its own Statute cannot answer a legal question, the Tribunal may look to customary law and general principles to regulate a matter. Customary international law comprises those laws that spring from from the practice of States together with their opinio juris. Opinio juris is the belief held by States that such practice is commanded by or in conformity with law. Treaties can sometimes represent custom. Except where this is the case, problems may arise in attempts to demonstrate what is unwritten law. Moreover, the notion that custom can form a basis for a finding of criminal liability has been criticised with reference to the idea that custom is often too ambiguous to be a legitimate basis for criminal liability. This idea can be connected to the principle of nullum crimen sine lege. This principle holds that a person can only be found guilty for a crime that was already a crime by law when that person committed it (see below). Nevertheless, the International Military Tribunals at Nuremberg and Tokyo and the ad hoc Tribunals have all considered that custom may establish criminal liability.
In some cases, treaties and custom may not unambiguously establish what is the law. Here, the ad hoc Tribunals have made use of the general principles of law by considering rules from domestic bodies of law. To take into account one such domestic system is insufficient, however. This is because the general principles of law are those that are shared by all of the world's principal legal systems. Due to their general nature, general principles are mostly used only as a last resort. They cannot always be identified across the major domestic legal systems. In addition to treaties, custom and general principles, a subsidiary source of international law are previous decisions and scholarly writings. According to its Statute, the International Criminal Court may use previous Judgements. The ad hoc Tribunals have had recourse to international and domestic case law as well. Scholarly writings have been very important in Judgements, but it should always be ascertained that legal writers from several traditions are included. Also, it should be guaranteed that their writings state what the law is, not what it should be.
International criminal law and other bodies of international law
International criminal law relates to several other bodies of international law, including human rights law. The development of international criminal law and human rights law was spurred after the Second World War, as efforts to prevent the recurrence of the committed atrocities. Similarly, the ad hoc Tribunals in the former Yugoslavia and Rwanda were established in the context of mass-scale human rights violations. Human rights requirements are imposed first and foremost on States. Because States do not always abide by such responsibilities, international criminal law is an important means of supporting the principle of State responsibility. Moreover, international human rights treaties were of great influence on the development of the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. These ad hoc Tribunals have also employed human rights instruments and human rights jurisdiction in their decisions. However, the bodies of international criminal law and human rights law should not be conflated. While most violations of the former would also constitute violations of the latter, this is not the case the other way around. Current international criminal courts and tribunals do not have mandates to prosecute any and all human rights violations. Also, States do not always opt to criminalise human rights violations. Furthermore, international crimes are often narrowly interpreted, favouring the accused. Human rights law, by contrast, is often broadly constructed.
In addition to its connections with human rights law, international criminal law also shares similarities with international humanitarian law. International humanitarian law seeks to defend victims of armed conflict. Many fields of international humanitarian law have been criminalised. This means that they also form part of international criminal law. As with human rights law, principles of humanitarian law cannot always automatically be included in international criminal law.
International criminal law is also connected to the notion of State responsibility. International criminal law is concerned principally with the liability of natural, individual persons and not States. However, the liability of a State agent may sometimes result in simultaneous State liability. Thus, States as such can also be internationally responsible. Importantly, the question whether a crime can be attributed to a State was dealt with by the International Court of Justice in the Bosnian Genocide Case. Furthermore, it has been asked whether or not a State can be criminally liable. This raises some conceptual problems, such as the determination of the mens rea (guilty mind) of a State, and the question how a State can be criminally punished. Thus far, no international tribunals or courts have found a State specifically and exclusively criminally liable.
The relationship between international law and criminal law
International criminal law is comprised of two legal bodies: international law and criminal law. The two are mostly reconcilable. However, the characteristics of one sometimes prove problematic with reference to those of the other. For example, international law demands constant reference to and interpretation of its own sources. Criminal law is more concerned with substantive rules. These must often be more concrete and understandable than the rules of international law practically are. However, as has been stated above, international criminal law is now linked to several other areas of international law.
Additionally, several essential principles of domestic criminal law systems are currently part of international (human rights) law. These include the principles of nullum crimen sine lege and nulla poena sine lege. The former entails the concept that the law cannot be applied retro-actively, and the idea that the law must be clear. Both of these aspects aim to guarantee that the law is reasonably knowable, so that everyone may plan their actions according to the law and not transgress it. International criminal law often remains unclear and underdeveloped. Here, then, the principle that a person can only be found liable on the basis of a pre-existent prohibition is very important. The principle has been included in the International Covenant on Civil and Political Rights. Nevertheless, especially the International Military Tribunals at Nuremberg and Tokyo Judgements have been criticised for having applied retroactive law. These Tribunals responded to such allegations by stating that the greater injustice would have been to not punish certain perpetrators. The nullum crimen principle demands that a treaty applies to a specific armed conflict, not that it mirrors custom. A narrow interpretation of the nullum crimen principle is nullum crimen sine lege scripta: no law without scripted law. On the basis of this interpretation it has been argued that custom, as unwritten law, cannot on its own establish criminal liability. This suggestion has not been made in international law, however. In international law, the opposite view has been taken. Exorbitantly ambiguous provisions may, nevertheless, violate the principle of nullum crimen sine lege. In keeping with the principle, the crimes under the jurisdiction of the International Criminal Court have been rather precisely defined in its Statute and in the Elements of Crimes.
The principle of nulla poena sine lege is connected to the principle of nullum crimen. The principle of nulla poena demands that criminal provisions include exact punitive measures. Although customary law may contain the death penalty, many States have voiced their opposition to this possibility. Current international Tribunals cannot sentence persons to the death penalty.
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