International criminal law

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 905-963

905

CHAPTER 15

INTERNATIONAL CRIMINAL LAW

A. INTRODUCT ION

International criminal law is a body of international rules designed both to proscribe

crimes of suff‌icient gravity to be of international concern and to impose criminal liabil-

ity on those persons who engage in such conduct.1 This body of rules either authorizes

states, or imposes upon them an obligation, to submit certain acts for prosecution or

punishment. It also regulates prosecutions of persons suspected of these crimes before

international criminal tribunals.2 Substantively, international criminal law is concerned

primarily with genocide, crimes against humanity, and war crimes (often referred to as

the “core crimes,” along with the crime of aggression), but as it evolves, the f‌ield may

also address such crimes as torture and terrorism. The core crimes tend to be those in

respect of which international prosecutorial mechanisms have been put in place; whereas

other crimes of international concern with a cross-border element tend to be addressed

by establishing rules that enhance the reach and effec tiveness of domestic mechanisms

of prevention, investigation, prosecution, and punishment. This distinction is under-

scored by referring to the latter body of rules as “ transnational” — rather than “inter-

national” — criminal law.3

Issues addressed by international criminal law range from the def‌inition of international

crimes and the modes of participation therein; to jurisdiction over such crimes and im-

munities from prosecution; to international and national procedures for investigating, pros-

ecuting, and punishing such crimes. Given its scope, international criminal law overlaps

with a number of other areas of public international law as well as national criminal law.

For example, the def‌inition of war crimes used in international criminal law is taken directly

from inte rnational humanitarian law, introduce d in Chapter 9. International criminal law

does not, however, encompass all of international humanitarian law, as the latter contains

a vast number of rules unrelated to the prohibition or prosecution of war crimes as such.

This chapter will concentrate on the development of the international law and institu-

tions relating to the prosecution of genocide, crimes against humanity, and war crimes,

1 Antonio Cassese et al, Cassese’s International Criminal Law, 3d ed (New York: Oxford University Pre ss,

2013) at 3.

2 Ibid.

3 Robert J Currie, International & Transnational Criminal Law (Toronto: Irwin Law, 2010) at 19–21. See also

Neil Boister, An Introduc tion to Transnational Crimin al Law (New York: Oxford University Pre ss, 2012) at

13 (“Transnational criminal law is the law that suppresses crime that transcen ds national frontiers; it can

be def‌ined as ‘the in direct suppression by international law through domes tic penal law of criminal activi-

ties that have actual or poten tial trans-boundary effec ts.’”)

906 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

as well as key issues surrounding the crime of terrorism. It will consider the establish-

ment, during the past two decades, of the International Criminal Tribunals for the Former

Yugoslavia and Rwanda; th e International Criminal Court; and “internationalized” tribu-

nals such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts

of Cambodia, and the Special Tribunal for Lebanon. We b egin this chapter with a brief

history of precursors to the current international criminal tribunals, to illustrate that the

impetus behind the creation of these tribunals, and particularly the International Criminal

Court, is not new. We will also see, however, that the vision of establishing a permanent

international criminal tribunal has evolved considerably over time.

B. PRECURSORS TO THE INTERNATIONAL CRIMINAL COURT

1) Immediate Post–World War I Proposals

In January 1919, at the end of World War I, a peace conference was convened in Paris to

draft the terms of peace with the defeated Central Empire powers. In the course of do-

ing so, the conference struck a Commission on the Responsibility of the Authors of the

War and on Enforcement of Penalties. The Commission’s mandate was to investigate

the possible international criminal liability for war crimes of enemy off‌icers and leaders.4

The Commission opined that each Allied power was empowered by international law to

prosecute enemy accused suspected of violating the laws and customs of war and that

enemy of f‌icials suspected of committing outrages against citizens of several Allied na-

tions should be tried before an amalgamated high tribunal.5 In scrutinizing the activities

of enemy accused, this tribunal would apply “the principles of the law of nations as they

result from the usages established among civilized peoples, from the laws of humanity

and from the dictates of public conscience.”6 Convicts were to be sentenced to punish-

ments consistent with those that might be imposed for similar offences in the convict’s

own country or in Allied states represented on the tribunal.7 The surrendering Central Em-

pire powers would be obliged to endorse this tribunal as part of the peace treaty process.8

The diff‌iculties of prosecuting war criminals before an international tribunal in the

absence of a justiciable codif‌ication of international crimes was not lost on the Allied

nations, particularly the United States. The problem posed by the fundamental principle

of nullum crimen sine lege — there can be no crime that is not def‌ined in law — galvan-

ized the American response to the Commission’s proposal. Concerned with preserving

a stable peace and already more preoccupied with events in Russia than with Central

4 “Commission on the Responsibility of the Auth ors of the War and on Enforcement of Penalties: Report

Presented to the Preliminar y Peace Conference, March 29, 1919” reprinted in (1920) 14 Am J Int’l L 95.

The Commission concluded (at 115 and 117) that Germany and Austria, al ong with their Turkish and

Bulgarian allies, had waged war throu gh “barbarous and illegitimate methods” and that militar y per-

sonnel and civilians who had sanct ioned or participated in these act s should be prosecuted.

5 Matthew Lippman, “Towards an International Criminal Cour t” (1995) 3 San Diego Justice Journal 1 at 14.

6 “Commission on the Responsibility of the Authors of the War and on Enforc ement of Penalties,” above

note 4 at 122.

7 Ibid.

8 Lippman, above note 5 at 15.

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Empire war criminals,9 American exper ts on the Commission argued, inter alia, that the

“laws of humanity” remained an ill- def‌ined notion diff‌icult to apply in a prosecutorial set-

ting. Further, no international instrument existed that contemplated the existence of an

international criminal court or that def‌ined violations of the laws and customs of war or

the laws of humanity as international crimes with specif‌ic sanctions.10

In the end, Article 228 of the Treaty of Versailles committed the German government

to recognizing the rights of Allied military courts to prosecute German suspects and

to sentence them — if convicted — to punishment “laid down by law.”11 Under Article

229, where an accused had perpetrated crimes against nationals of more than one Allied

power, mixed courts “composed of members of the military tribunals of the Powers con-

cerned” were to be established. Germany was to extradite accused persons to the Allies

for trial, “notwithstanding any proceedings or prosecution before a tribunal in Germany

or in the territory of her allies.”

The Versailles formula did represent a turning point in international law, in that no

general amnesty was granted to the vanquished, and violations of the laws of war were

to culminate in criminal liability. At the same time, Articles 228 and 229 ref‌lected a mere

extension of the domestic jurisdiction of Allied courts to Germans who had engaged

in ac tions injurious to citizens of Allied countries. The only truly international tribunal

contemplated by the Treaty of Versailles, in Ar ticle 227, was one intended to “publicly ar-

raign William II of Hohenzollern [the German Kaiser] . . . for a supreme offence against

international moralit y and the sanctity of treaties.” While such an arraignment would

have represented an important erosion of the notion of the sovereign immunity of heads

of state, the tribunal’s grounds for proceeding were very vaguely worded. In this regard,

Article 227 indicated that the tribunal was to be “guided by the highest motives of inter-

national policy, with a view to vindicating the solemn obligation of international undertak-

ings and the validity of inter national morality.”

In practice, little came of Articles 227, 228, and 229. Within a month of its ratif‌ication,

Germany repudiated the treaty as a harsh settlement unilaterally imposed (or diktat), and

refused to honour its provisions.12 The Netherlands, meanwhile, granted asylum to the

Kaiser, effectively placing him beyond the reach of the tribunal contemplated in Ar ticle

227. Further, none of the 1,580 German accused pursued by the Allies were ever extra-

dited by Germany and only forty-f‌ive were prosecuted before the German Reichsgericht

(Supreme Court).13

9 Ibid.

10 See “Anne x II: Memorandum of Reservations Presented by the Re presentatives of the United States to

the Report of the Commission on Re sponsibilities, April 4, 1919”) in “Commission on the Responsibil-

ity of the Authors of th e War and on Enforcement of Penalties,” above note 4 at 127–51.

11 Treaty of Peace between the Allied Po wers and Associated Powers and Germany ( Treaty of Versailles),

28 June 1919, UK TS 1919 No 4, (1919) 13 AJIL Supp 151, in force 10 January 1920.

12 Benjamin Ferencz, An Internat ional Criminal Court, A St ep Toward World Peace: A Document ary History

And Analysis, vol 1 (London: Oceana Publications, 1980) at 32.

13 Lippman, above note 5 at 20. The sentences handed dow n by the Reichsgericht in those cases that were

not dismissed by the court were ex tremely lenient and were later annulled . All war crimes proceedings

were eventually quashed wh en Hitler came to power in 1933.