The Core Crimes

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 107-166

107

CHAP TER 3

THE CORE CRIMES

A. I NTRODUC TION

This chapter will deal w ith the four “core” crimes under international

law: genocide, crimes again st humanity, war crimes, and agg ression.

These are often labelled international crimes “i n the strictest sense” (or

stricto sensu), as there is direct individual liability under international

law for each variety of conduct. The Appeals Chamber of the Inter-

national Crimi nal Tribunal for the former Yugoslavia (ICTY) has re-

ferred to them as “Universally Condemned Offences,” noting that they

are “a matter of concern to the international commun ity as a whole.”1

In terms of the analy tical framework being used in this book, these are

international crimes: the prohibition of each is a jus cogens nor m under

customary inter national law (or at least is evolving in that direct ion),

and it i s generally ag reed that states may exercis e crimin al jurisd iction

on a universal basis over each one (with the possible exception of the

crime of aggres sion). Moreover, part of what heightens the opprobrium

attached to these crimes is that they are often committed by state of-

f‌icials, whose control over the target populations can increase both the

scale of atrocities and the potenti al for impunity.2 Accordingly, since

1Nikolić (IT-94-2-AR73), Decision on Interlocutory Appea l Concerning Legality

of Arrest, Appe als Chamber, 5 June 2003 at para s 24–25.

2 Professor Sch abas opines that thi s is one reason that the cr imes are best re-

ferred to as “i nternational” rather th an “universally condemne d,” since ot her

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW108

these are crimes that offend against the interests of the international

community as a whole, the statutes of those international t ribunals

that have had jurisdiction over them have also stripped away immun-

ities based on off‌icial status.3

Despite this elevated legal status, the history of domestic prosecu-

tions of these crimes is meagre. However, each has been within the

subject matter of one or more international crimin al tribunals, and the

jurisprudence of those bodies (particularly the ICTY and International

Criminal Tribunal for Rwanda (ICTR)) has produced the only signif‌i-

cant development of the law on each. Accordingly, the caselaw of these

tribunal s is signif‌icant, not just for examining how these crimes are be-

ing prosecuted in specif‌ic situations, but for assessing the development

of the crimes under custom ary international law,4 and this caselaw wi ll

be given particular attention here. The crime of aggression ha s a more

tentative status but is seeing current development, of which more will

be said in Section E, below in this chapter.

B. GENOCIDE

1) History

The term “genocide” was invented by Polish law yer Raphael Lemkin

and f‌irst appeared in h is study of crimes committed by the Nazis dur-

ing their occupation of European states.5 Lemkin combined the words

genos (ancient Greek for “race” or “tribe”) and caedere (Latin for “kill-

ing”) in order to formulate a specif‌ic label for the destruction of ethnic,

religious, or national groups. While the se acts were already es sentially

prohibited under the laws of armed conf‌lict, L emkin argued t hat the

international community should speci f‌ically condemn the part icularly

common crime s such as murder and rape are als o condemned under virtual ly

every legal sy stem in the world, yet do not have the status of t he core crimes;

see Willia m Schabas, The UN Intern ational Criminal Tribunals (Cambridge:

Cambridge Univer sity Press, 2006) at 155.

3 See, generally, Chapter 11.

4In Mugesera v Canada (Minister of Immigration a nd Citizenship), [2005] 2 SCR

100 [Mugesera], the Supreme Court of Canad a made extensive reference to the

caselaw of t he ICTY and ICTR in interpretin g the Canadian cri minal law on

genocide and cri mes against humanity, as did t he Quebec Superior Court in R c

Munyaneza, 2009 QCCS 2201; see Chapter 5.

5 Raphael Lemk in, Axis Rule in Occupied Europe: La ws of Occupation, Analysis of

Government, P roposals for Redress (Washington: Carneg ie Endowment for World

Peace, 19 44).

The Core Crimes 109

horrif‌ic nature of these acts by establishing a convention that would

criminalize genocide, whether in peacetime or in war.6 The prosecutors

at Nuremberg used the term to descr ibe Nazi atrocities directed against

racial and ethnic g roups, and while t he Intern ationa l Military Tribunal

(IMT) did not provide for genocide as a crime per se, it fully described,

and convicted some accused persons for, genocidal acts.7

Lemkin’s call for a specif‌ic crime of genocide was ta ken up by the

United Nations following the war. In 1946, General Assembly Resolu-

tion 96(I) declared genocide to be “a crime under international law,

which the civilized world condemns” and directed the Economic and

Social Council to draft a convention. The Convention was completed

two years later and was adopted unan imously on 9 December 1948.8

The International Convention on the Prevention and Punishment of the

Crim e of Ge no cide9 conf‌irmed the will of the international commun ity

to punish genocide, whether it occurred during wa r or peacetime, a

restriction which sti ll operated with regard to cr imes against human-

ity at the time. This was important and remains so, given that acts of

genocide are generally committed by state off‌icial s or pers ons acting in

concert with them.

In 1951, the Inter national Court of Justice (ICJ) held that the sub-

stantive principles underlying the Genocide Convention had customary

international law status and were “binding on States, even without any

conventional obligation.”10 This status certai nly extends to the major

provisions of the Genocide Convention itself, though other parts of the

Convention remain controversial. Moreover, the ICJ has subsequently

found that the prohibition of genocide is an erga omnes obligation for

states,11 and that it is a jus cogens principle.12 Accordingly, states must

criminal ize genocide within their ow n national legal frameworks and

must act to prevent genocide taking place on their territor y, and they

may be called to account by other states for failing to do so. In addition,

6Ibid at 92.

7 See Willia m Schabas, Genocide in Inte rnational Law: The Crime of Crimes, 2d ed

(Cambridge: Cambridge Un iversity Press, 2009) at 43–4 8.

8 GA Res 260(A)(III), 9 December 1948.

9 78 UNTS 277, Can TS 1949 No 27 [Genocide Convention].

10 Reservation s to the Convention on the Prevention an d Punishment of Genocide (Ad-

visory Opinion), [1951] ICJ Rep 15 at 24.

11 Application of the Convent ion on the Prevention and Punishme nt of the Crime of

Genocide (Bosnia-Herzegovina v Yugoslavia), Prelimi nary Objections, Judgment,

11 July 1996, [1996] ICJ Rep 595 at 616.

12 Case Concerning Arm ed Activities on the Territory of Congo, Jurisdict ion of the

Court and Admissib ility of the Application (Democratic Repu blic of Congo v

Rwanda), Judgment, 3 Februar y 2006 at para 64.