International Criminal Law
| Author | John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld |
| Pages | 861-906 |
861
CHAPTER 15
International Criminal Law
A. INTRODU CTION
International criminal law is a body of international rules designed both to proscribe crimes
of sucient gravity to be of international concern and to impose criminal liability on those
persons who engage in such conduct. 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. 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; however, as it evolves the eld may eventually address other crimes.
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 through crime suppression conventions that establish rules of
cooperation to enhance the reach and eectiveness of domestic mechanisms of prevention,
investigation, prosecution, and punishment. This distinction is underscored by referring to
the latter body of rules as “transnational” — rather than “international” — criminal law.
Issues addressed by international criminal law range from the denition of international
crimes and the modes of participation therein; to jurisdiction over such crimes and immun-
ities from prosecution; to international and national procedures for investigating, prosecut-
ing, 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 denition of war crimes used in international criminal law is taken directly from
international humanitarian law, introduced in Chapter . International criminal law does not,
however, encompass all of international humanitarian law, as the latter contains a vast num-
ber 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 institutions
relating to the prosecution of genocide, crimes against humanity, and war crimes, as well as
key issues surrounding the jurisdiction of international criminal tribunals. It will consider the
Antonio Cassese et al, Cassese’s International Criminal Law, d ed (New York: Oxford University Press,
) at .
Ibid.
Robert J Currie & Joseph Rikhof, International & Transnational Criminal Law, d ed (Toronto: Irwin Law,
) at –. See also Neil Boister, An Introduction to Transnational Criminal Law, d ed (Oxford:
Oxford University Press, ) at . (“Transnational criminal law thus describes the law that sup-
presses crime that transcends national frontiers; it can be dened as ‘the indirect suppression by
international law through domestic penal law of criminal activities that have actual or potential trans-
boundary eects.’”)
862 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda;
the International Criminal Court; and “internationalized” tribunals such as the Special Court
for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special
Tribunal for Lebanon. We begin 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 also note, how-
ever, 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 , 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 doing
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 ocers and leaders. The Commis-
sion 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 ocials sus-
pected of committing outrages against citizens of several Allied nations should be tried
before an amalgamated high tribunal. 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.” Convicts were to be sentenced to punishments consistent with those
that might be imposed for similar oences in the convict’s own country or in Allied states
represented on the tribunal. The surrendering Central Empire powers would be obliged to
endorse this tribunal as part of the peace treaty process.
The diculties of prosecuting war criminals before an international tribunal in the absence
of a justiciable codication of international crimes was not lost on the Allied nations, particu-
larly the United States. The problem posed by the fundamental principle of nullum crimen sine
lege — there can be no crime that is not dened in law — galvanized 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 Empire war criminals, American experts
on the Commission argued, inter alia, that the “laws of humanity” remained an ill-dened
“Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report
Presented to the Preliminary Peace Conference, March , ” reprinted in () Am J Int’l L .
The Commission concluded (at and ) that Germany and Austria, along with their Turkish and
Bulgarian allies, had waged war through “barbarous and illegitimate methods” and that military per-
sonnel and civilians who had sanctioned or participated in these acts should be prosecuted.
Matthew Lippman, “Towards an International Criminal Court” () San Diego Just J at
[Lippman].
“Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties,” above
note at .
Ibid.
Lippman, above note at .
Ibid.
Cha pter : International Criminal Law 863
notion dicult to apply in a prosecutorial setting. Further, no international instrument existed
that contemplated the existence of an international criminal court or that dened violations
of the laws and customs of war or the laws of humanity as international crimes with specic
sanctions.
In the end, Article of the Treaty of Versailles committed the German government to
recognizing the rights of Allied military courts to prosecute German suspects and to sen-
tence them — if convicted — to punishment “laid down by law.” Under Article , 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 concerned” were to
be established. Germany was to extradite accused persons to the Allies for trial, “notwith-
standing 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 and reected a mere extension of the
domestic jurisdiction of Allied courts to Germans who had engaged in actions injurious to
citizens of Allied countries. The only truly international tribunal contemplated by the Treaty
of Versailles, in Article , was one intended to “publicly arraign William II of Hohenzollern
[the German kaiser] . . . for a supreme oence against international morality 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 vaguely worded. In this regard, Article indicated that the tribunal was to be “guided
by the highest motives of international policy, with a view to vindicating the solemn obligation
of international undertakings and the validity of international morality.”
In practice, little came of Articles , , and . Within a month of its ratication, Ger-
many repudiated the treaty as a harsh settlement unilaterally imposed and refused to honour
its provisions. The Netherlands, meanwhile, granted asylum to the kaiser, eectively placing
him beyond the reach of the tribunal contemplated in Article . Further, none of the ,
German accused pursued by the Allies were ever extradited by Germany, and only forty-ve
were prosecuted before the German Reichsgericht (Supreme Court).
The attempt to bring accused Turkish war criminals to trial was even more perfunctory.
The original treaty of peace between Turkey and the Allies — the Treaty of Sèvres — envisaged
the handover of Turks who had committed “crimes against humanity,” including the forced
displacement and massacre of large segments of the Armenian population of the Ottoman
Empire. The treaty — signed in — was never implemented and its replacement, the
See “Annex II: Memorandum of Reservations Presented by the Representatives of the United States to
the Report of the Commission on Responsibilities, April , ” in “Commission on the Responsibil-
ity of the Authors of the War and on Enforcement of Penalties,” above note at –.
Treaty of Peace between the Allied Powers and Associated Powers and Germany, June , UK TS
No , () Am J Int’l L Supp , in force January [Treaty of Versailles].
See further William A Schabas, The Trial of the Kaiser (Oxford: Oxford University Press, ).
Benjamin Ferencz, An International Criminal Court, A Step Toward World Peace: A Documentary History
and Analysis, vol (London: Oceana Publications, ) at [Ferencz].
Lippman, above note at . The sentences handed down by the Reichsgericht in those cases that
were not dismissed by the court were extremely lenient and were later annulled. All war crimes pro-
ceedings were eventually quashed when Hitler came to power in .
Treaty of Peace Between the Allies and Associated Powers and Turkey, August , UKTS No ,
() Am J Int’l L Supp. , not in force.
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