The Core Crimes

AuthorJoseph Rikhof/Robert J Currie
This chapter will deal with the four “core” crimes under international
law: genocide, crimes again st humanity, war crimes, and aggre ssion.
These are often labelled intern ational crimes “in the strictest sense” (or
stricto sensu), as there is direct indiv idual liability under intern ational
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 internationa l community as a whole.”1
In terms of the ana lytical framework being used in this book, these are
international cr imes: the prohibition of each is a jus cogens norm under
customary inter national law (or at least is evolving in that direction),
and it is generally agreed th at states may exercise cri minal jurisd iction
on a universal basis over each one (with the pos sible 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
(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 Crimes 109
these are crimes that offend against the interest s of the international
community as a whole, the statutes of those inter national tribuna ls
that have had jurisdiction over them have also stripped away i mmun-
ities based on off‌icial st atus.3
Despite this elevated legal status, the history of domestic prosecu-
tions of these cri mes is meagre. However, each has been within the
subject matter of one or more international crimi nal tribunal s, and the
jurisprudence of those bod ies (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 i s signif‌icant, not just for examin ing 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 sa id in Section E, below
in this chapter.
1) History
The term “genocide” was invented by Polish lawyer Raphael Lemkin
and f‌irst appeared in hi s study of crimes committed by the Nazis dur-
ing their occupation of European states.5 Lem kin 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 [Muges era], 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
(MM IWG) (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”].
genos (ancient Greek for “race” or “tribe”) and caedere (Latin for “kill-
ing”) in order to formulate a specif‌ic label for the destruction of ethn ic,
religious, or national groups. While these acts were already essentially
prohibited under the laws of armed conf‌lict, Lem kin argued that the
international communit y 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 w ith genocidal purposes in t he post-Nuremberg
trials under Control Council Law no 10 as well as in the trial s 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 t he will of the internationa l community
to punish genocide, whether it occurred during wa r 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 off‌icial s or persons acting in
concert with them.
In 1951, the International Court of Justice (ICJ) held that the sub-
stantive pr inciples unde rlying the Genocide Convention had customary
international law st atus and were “binding on States, even without any
conventional obl igation.”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].
10 Reserva 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

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