The Core Crimes

• Author: Joseph Rikhof/Robert J Currie
• Pages: 108-191

108

CHAPTER 3

THE CORE CRIMES

A. INTRODUCTION

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

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

These are often labelled intern ational crimes “in 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 Criminal Tribunal for the former Yugoslavia (ICTY) has

referred to them as “Universal ly Condemned Offences,” noting that they

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

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

international cr imes: 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 exercise criminal 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 off‌i-

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

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

1 Nikoli

ć

(IT-94-2-AR73), Decision on Interlocutor y Appeal Concerning Lega lity

of Arrest, App eals 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

referred to as “ international” rather t han “universally condem ned,” since other

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

The Core Crimes109

these are crimes that offend against the interests of the international

community as a whole, the statutes of those international tribunals

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 criminal tribunals, and the

jurisprudence of those bodies (particularly the ICTY and Inter national

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

being prosecuted in specif‌ic situations, but for assessing the develop-

ment of the crimes under customary international law,4 and this

caselaw wi ll be given particular attention here. The crime of aggre ssion

has been subject to much less jurisprudence but is now subject to the

jurisdiction of the ICC, of which more will be said in Section E, below

in this chapter.

B. GENOCIDE

1) History

The term “genocide” was invented by Polish lawyer Raphael Lemkin

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

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

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

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

Cambridge Univer sity Press, 2006) at 155.

3 See, generally, Chapter 11.

4 In Mugesera v Canada (Minister of Immigratio n and Citizenship), [2005] 2 SCR

100 [Mugesera], the Supreme Court of Canada m ade extensive reference to the

caselaw of t he ICTY and ICTR in interpreting t he Canadian cri minal law on

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

Court of Appeal i n R c Munyaneza, 2009 QCCS 2201 and 2014 QCCA 906, and

the Ontar io Superior Court in R v Mung warere, 2013 ONSC 4594; see Chapter 5.

5 Raphael Lemk in, Axis Rule in Occupied Europe: L aws of Occupation, Analysis of

Government , Proposals for Redress (Washington: Car negie Endowment for World

Peace, 1944); however, in the Supplement ary Report – Genocide of t he Final

Report of Nation al Inquiry into Missing and Murdered Indigenou s Women and Girls

(MMIWG) (3 June 2019) [MMIWG Supp Report], it was argued th at genocide as a

legal concept was know n well before World War II, which was critici zed as his-

torically i ncorrect in Joseph Rikhof, “The MMIWG Fin al Report and Genocide”

(2019) 3 PKI Global Justice Journ al 56 [Ri khof, “The MMIWG Final Report”].

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW110

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 these acts were already essentially

prohibited under the laws of armed conf‌lict, Lemkin argued that the

international community should specif‌ically condemn the particularly

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 desc ribe Nazi atrocities directed again st

racial and ethnic g roups, 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. There followed

several references in indictments to the crime of genocide, and con-

victions for crimes with genocidal purposes in the post-Nuremberg

trials under Control Council Law no 10 as well as in the trials by the

Supreme National Tribunal of Poland.7

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

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

lution 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 unanimously on 9 December 1948.8

The International Convention on the Prevention and Punishment 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 still operated with regard to crimes against human-

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

genocide are generally committed by state off‌icials or persons acting in

concert with them.

In 1951, the International 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 certainly extends to the major

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

6 Ibid at 92.

7 See Europ ean Court of Human Right s in the case of Vasiliauskas v Lithuani a,

App No 35343/05, 20 October 2015 at paras 171–72; see also Law Repor ts of

Trials of War Crim inals, Selected and Pr epared by the United Nations War

Crimes Com mission (London, 1949), Vol VI at 32, 48, 75, and 99; Vol VII at 7–9

and 24–26; Vol XIII at 36–43; and Vol XV at 122–23.

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

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

10Reserva tions to the Convention on the Preven tion and Punishment of Geno cide,

[1951] ICJ Rep 15 at 23 (advisory opinion); Application of th e Convention on the