The Core Crimes

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 104-158

104

CHA PTER 3

THE CORE CRIMES

A. INTRODUCTION

This chapter w ill deal with the four “core” crimes under i nternational

law: genocide, cr imes against humanity, war crimes, and aggression.

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

stricto sensu), as t here is direct individual liabilit y under inter national

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

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

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

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

In terms of the analytical fr amework being used in this book, these are

international crimes: the prohibition of each is a jus cogens norm under

customary international law (or at least is evolving in that direction),

and it is generally agreed that states may exerci se crimina l jurisdiction

on a univers al basi s over each one (with t he possible exception of the

crime of aggression). Moreover, part of what heightens the opprobrium

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

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

scale of atrocities and the potential for i mpunity.2 Accordi ngly, si nce

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

of Arrest, 5 June 20 03 at paras. 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 other

The Core Crimes 105

these are crime s which offend against the interests of the international

community as a whole, the statutes of those inter national tribunals

which have had jurisdiction over them have also stripped away im-

munities based on off‌icial st atus.3

Despite this elevated legal status, the hi story of domestic prosecu-

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

subject matter of one or more international criminal tribunals, and the

jurisprudence of those bodies (par ticularly 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

tribunals 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 customary international law,4 and this caselaw will

be given part icular attention here. The cr ime of aggre ssion has 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” wa s invented by Polish lawyer Raphael Lemk in

and f‌irst appeared in his study of c rimes comm itted by the Nazis dur-

ing their occupat ion 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 t hese acts were already essential ly

prohibited under the laws of ar med conf‌lict, Lemkin argued that the

international community should specif‌ically condemn the particularly

common crime s such as murder and rape are als o condemned under virtua lly

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

see Willi am Schabas, The UN Intern ational Criminal Tribunals (Cambridge:

Cambridge Univer sity Press, 2006) at 155.

3 See, generally, Chapter 11.

4 In Mugesera v. Canada (Minister of Immigration an d Citizenship), [2005] 2 S.C.R.

100 [Mugesera], the Supreme Court of Cana da made extensive reference to t he

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

genocide and cri mes against humanit y, as did the Quebec Supe rior Court in R.

c. Munyaneza, 2009 QCCS 2201; see Chapter 5.

5 Raphael Lem kin, Axis Rule in Occupie d Europe: Laws of Occupation, Analysis of

Governmen t, Proposals for Redress (Washington: Car negie Endowment for World

Peace, 1944).

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW106

horrif‌ic nature of these acts by establishing a convention that would

crimina lize genocide, whether in peacetime or in war.6 The prosecutors

at Nuremberg used the term to describe Nazi atrocities directed against

racial and ethnic groups, and while the International 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 t aken up by the

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

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

which the civilized world condemn s” and directed the Economic and

Social Council to draft a convention. The convention was completed

two years later and wa s adopted unanimously on 9 December 1948.8

The International Convention on the Prevention and P unishment of the

Crime of Genocide9 conf‌irmed the will of the international community

to punish genocide, whether it occurred during war or peacetime, a

restriction which stil l operated with regard to crimes against human-

ity at the time. This wa s important and remains so, given t hat acts of

genocide are generally committed by state off‌icials or persons acting in

concert with them.

In 1951, the International Cour t of Justice (ICJ) held that the sub-

stantive principles underlying the Ge nocide Convention had customary

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

conventional obligation.”10 This status certainly 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

crimina lize genocide within their own nationa l legal frameworks and

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

may be called to account by other states for failing to do so. In addi-

6 Ibid. at 92.

7 See Willi am Schabas, Genocid e in International Law: The Crime of Crimes, 2 d ed.

(Cambridge: Cambrid ge University Press, 2009) at 43– 48.

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

9 78 U.N.T.S. 277, Can. T.S. 1949 No. 27 [Genocide Convent ion].

10 Reserva tions to the Convention on the Preven tion of Genocide (Advisor y Opinion),

[1951] I.C.J. Rep. 15 at 24.

11 Application of th e Convention on the Prevention an d Punishment of the Crime of

Genocide (Bosnia-He rzegovina v. Yugoslavia), Preliminar y Objections, Judgment,

11 July 1996, [1996] I.C.J. Rep. 595 at 616.

12 Case Concerning Ar med Activities on the Territory of Congo, Jurisd iction of the

Court and Admissi bility of the Application (Democratic Re public of Congo v.

Rwand a), Judgment, 3 Februar y 2006 at para. 64.