AN INTRODUCTION TO INTERNATIONAL
CRIMINAL LAW AND PROCEDURE
PART I: INTRODUCTION
CHAPTER. 1: WHAT IS INTERNATIONAL CRIMINAL LAW
int’l law = governs the rights and obligations of states
crim law= prohibitions addressed to individuals, violations of which are subject to
penal sanction by a state
tensions btwn the state-sovereignty-oriented approach and the human-being-
oriented approach
difficulties of definitions of int’l criminal law and int’l crimes
this book: int’l crime = those offences over which international courts or tribunals
have been given jurisdiction under general int’l law so called “core” crimes (=
genocide, crimes against humanity, war crimes, and the crime of aggression)
+ the procedures governing the international investigation, prosecution and
adjunction of these crimes.
1.2. OTHER CONCEPTS OF INTERNATIONAL CRIMINAL LAW
1.2.1. TRANSNATIONAL CRIMINAL LAW
= crimes with actual or potential transborder effects
international crim law = criminal aspects of international law
transnational criminal law = international aspects of national criminal law
o includes the rules of national jurisdiction
o methods of cooperation among states
o treaties:
mutual legal assistance and extradition btwn states
require states to criminalize certain types of conduct
1.2.2. INTERNATIONAL CRIMINAL LAW AS A SET OF RULES TO PROTECT
VALUES OF INTERNATIONAL ORDER
ICL used to protect int’l values
int’l crimes are considered to be those which are concern to the int’l
community as a whole, or acts which violate a fundamental interest
protected by int’l law
1
, ICC: the most serious crimes of concern to the int’l community as a whole,
and those crimes threaten the peace, security and well-being of the world
o problem: it implies a level of coherence in the int’l criminalization
process which may not exist
1.2.3. INVOLVEMENT OF A STATE
int’l crimes mostly involve state-agents, state-like agencies
but for ICL which deals with liability of individuals, the official status of the
perpetrator is almost always irrelevant
??
1.2.4. CRIMES CREATED BY INT’L LAW
Int’l crime = offence created by int’l law itself, without requiring the intervention
of domestic law.
ex. Nuremberg trial: crimes against int’l law are commited by men, not by
abstract entities, and only by punishing individuals who commit such crimes can
be the provisions of international law be enforced… individuals have int’l duties
which transcend the national obligations of obedience imposed by the indivual
state.
problem: discussion of what is created by int’l law
1.3. SOURCES OF INTERNATIONAL CRIMINAL LAW
Sources of ICL are those of int’l law enumerated in art. 38(1)(a)-(d) of the Statue
of the international Court of Justice
1.3.1. TREATIES
the basis for many of the crimes within the jurisdiction of the ad hoc
tribunals and the ICC
o 1907 Hague Regulations
o 1949 Geneva conventions (and their additional protocols)
o 1948 Genocide convention
The statute of the ICC: sets out de definitions of crimes within the
jurisdiction of the ICC
Chapter VII of the UN charter
o Art. 25 of the Charter: binding force to adopt the ICTY and ICTR
(criminal tribunal of Rwanda)
treaties can impose obligations directly on individuals, if that is the intent of
the drafters
2
, it is only those treaties or provisions of a treaty which are intended to
apply directly to an individual that can give rise to criminal responsibility
o ex the suppression conventions: drug trafficking conducts need to
be implemented in national law so does not create individual
criminal responsibility
+ if a court apply the terms of a treaty directly to an individual, it will be
necessary to show that the prohibited conduct has taken place in the
territory of a state party of the treaty
1.3.2. CUSTOMARY INTERNATIONAL LAW
= that body of law which derives from the practice of states accompanied by
opinio juris (= the belief that what is done is required by law)
Critic: to vague
1.3.3. GENERAL PRINCIPLES OF LAW AND SUBSIDIARY MEANS OF
DETEMINING THE LAW
= general principles of law derived by from national laws of legal systems of the
world, including the national laws of states that would normally exercise
jurisdiction over the crime, provided that those principles are not inconsistent
with the statue and with int’l law and internationally recognized norms and
standards.
+ also principles and rules of law as interpreted in its previous decisions
ICC is not bound by its previous decisions, no stare decisis.
Writings of scholars can be influential but are in themselves no source of ICL
1.4. INTERNATIONAL CRIMINAL LAW AND OTHER AREAS OF LAW
1.4.1. INTERNATIONAL CRIMINAL LAW AND HUMAN RIGHTS LAW
Development of crimes against humanity and the law of human rights was
inspired by WOII
Modern HR includes eco-soc rights and civil and political rights
common base with ICL: response to abuses of HR by states against their
own citizens or others within their territory
HR obligations are imposed primarily on states
ICL can be used when states are not implementing their HR
although ICL and HR overlaps, they are not synonymous
3
, every international crime would be a violation of HR but the converse does
not apply
o not every denial of a HR may constitute a crime against humanity
o int’l crim courts and tribunals do not exist to prosecute violations of
£HR
o HR obligations are primarily imposed upon states, not individuals,
and it is for states to decide how they will enforce them on their own
agents
o HR norms are given a broad and liberal interpretation in order to
achieve their objects and purposes, in ICL there are countervailing
rights of suspects that are protected trough principles requiring that
the law be strictly construed and that ambiguity be resolved in
favour of the accused.
but mostly operate in harmony
Art. 21(3) of the Rome statute requires that the application and
interpretation of law must be consistent with internationally recognized
human rights
1.4.2. INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL HUMANITARIAN
LAW
= body of law designed to protect victims of armed conflict/
a large number of international humanitarian law are now criminalized as
war crimes
1.4.3. INTERNATIONAL CRIMINAL LAW AND STATE RESPONSIBILITY
ICL concerns the criminal responsibility of individuals, not states
the responsibility of a state under Int’l law is a matter for a separate
branch of int’l law and is not dependent upon the legal responsibility of an
individual
o ex. a state gent is convicted fof an international crime: the act in
question may be attributable to the state and both the individual
and the state are internationally responsible
state responsibility in the Bosnian genocide case
o Serbia was not responsible for the perpetrators
o but was responsible under art. 1 genocide convention for failing to
prevent a genocide
o thereby the court shows that the relevant test of state
responsibility is different in ICL and general int’l law
1.5. A BODY OF CRIMINAL LAW
4
CRIMINAL LAW AND PROCEDURE
PART I: INTRODUCTION
CHAPTER. 1: WHAT IS INTERNATIONAL CRIMINAL LAW
int’l law = governs the rights and obligations of states
crim law= prohibitions addressed to individuals, violations of which are subject to
penal sanction by a state
tensions btwn the state-sovereignty-oriented approach and the human-being-
oriented approach
difficulties of definitions of int’l criminal law and int’l crimes
this book: int’l crime = those offences over which international courts or tribunals
have been given jurisdiction under general int’l law so called “core” crimes (=
genocide, crimes against humanity, war crimes, and the crime of aggression)
+ the procedures governing the international investigation, prosecution and
adjunction of these crimes.
1.2. OTHER CONCEPTS OF INTERNATIONAL CRIMINAL LAW
1.2.1. TRANSNATIONAL CRIMINAL LAW
= crimes with actual or potential transborder effects
international crim law = criminal aspects of international law
transnational criminal law = international aspects of national criminal law
o includes the rules of national jurisdiction
o methods of cooperation among states
o treaties:
mutual legal assistance and extradition btwn states
require states to criminalize certain types of conduct
1.2.2. INTERNATIONAL CRIMINAL LAW AS A SET OF RULES TO PROTECT
VALUES OF INTERNATIONAL ORDER
ICL used to protect int’l values
int’l crimes are considered to be those which are concern to the int’l
community as a whole, or acts which violate a fundamental interest
protected by int’l law
1
, ICC: the most serious crimes of concern to the int’l community as a whole,
and those crimes threaten the peace, security and well-being of the world
o problem: it implies a level of coherence in the int’l criminalization
process which may not exist
1.2.3. INVOLVEMENT OF A STATE
int’l crimes mostly involve state-agents, state-like agencies
but for ICL which deals with liability of individuals, the official status of the
perpetrator is almost always irrelevant
??
1.2.4. CRIMES CREATED BY INT’L LAW
Int’l crime = offence created by int’l law itself, without requiring the intervention
of domestic law.
ex. Nuremberg trial: crimes against int’l law are commited by men, not by
abstract entities, and only by punishing individuals who commit such crimes can
be the provisions of international law be enforced… individuals have int’l duties
which transcend the national obligations of obedience imposed by the indivual
state.
problem: discussion of what is created by int’l law
1.3. SOURCES OF INTERNATIONAL CRIMINAL LAW
Sources of ICL are those of int’l law enumerated in art. 38(1)(a)-(d) of the Statue
of the international Court of Justice
1.3.1. TREATIES
the basis for many of the crimes within the jurisdiction of the ad hoc
tribunals and the ICC
o 1907 Hague Regulations
o 1949 Geneva conventions (and their additional protocols)
o 1948 Genocide convention
The statute of the ICC: sets out de definitions of crimes within the
jurisdiction of the ICC
Chapter VII of the UN charter
o Art. 25 of the Charter: binding force to adopt the ICTY and ICTR
(criminal tribunal of Rwanda)
treaties can impose obligations directly on individuals, if that is the intent of
the drafters
2
, it is only those treaties or provisions of a treaty which are intended to
apply directly to an individual that can give rise to criminal responsibility
o ex the suppression conventions: drug trafficking conducts need to
be implemented in national law so does not create individual
criminal responsibility
+ if a court apply the terms of a treaty directly to an individual, it will be
necessary to show that the prohibited conduct has taken place in the
territory of a state party of the treaty
1.3.2. CUSTOMARY INTERNATIONAL LAW
= that body of law which derives from the practice of states accompanied by
opinio juris (= the belief that what is done is required by law)
Critic: to vague
1.3.3. GENERAL PRINCIPLES OF LAW AND SUBSIDIARY MEANS OF
DETEMINING THE LAW
= general principles of law derived by from national laws of legal systems of the
world, including the national laws of states that would normally exercise
jurisdiction over the crime, provided that those principles are not inconsistent
with the statue and with int’l law and internationally recognized norms and
standards.
+ also principles and rules of law as interpreted in its previous decisions
ICC is not bound by its previous decisions, no stare decisis.
Writings of scholars can be influential but are in themselves no source of ICL
1.4. INTERNATIONAL CRIMINAL LAW AND OTHER AREAS OF LAW
1.4.1. INTERNATIONAL CRIMINAL LAW AND HUMAN RIGHTS LAW
Development of crimes against humanity and the law of human rights was
inspired by WOII
Modern HR includes eco-soc rights and civil and political rights
common base with ICL: response to abuses of HR by states against their
own citizens or others within their territory
HR obligations are imposed primarily on states
ICL can be used when states are not implementing their HR
although ICL and HR overlaps, they are not synonymous
3
, every international crime would be a violation of HR but the converse does
not apply
o not every denial of a HR may constitute a crime against humanity
o int’l crim courts and tribunals do not exist to prosecute violations of
£HR
o HR obligations are primarily imposed upon states, not individuals,
and it is for states to decide how they will enforce them on their own
agents
o HR norms are given a broad and liberal interpretation in order to
achieve their objects and purposes, in ICL there are countervailing
rights of suspects that are protected trough principles requiring that
the law be strictly construed and that ambiguity be resolved in
favour of the accused.
but mostly operate in harmony
Art. 21(3) of the Rome statute requires that the application and
interpretation of law must be consistent with internationally recognized
human rights
1.4.2. INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL HUMANITARIAN
LAW
= body of law designed to protect victims of armed conflict/
a large number of international humanitarian law are now criminalized as
war crimes
1.4.3. INTERNATIONAL CRIMINAL LAW AND STATE RESPONSIBILITY
ICL concerns the criminal responsibility of individuals, not states
the responsibility of a state under Int’l law is a matter for a separate
branch of int’l law and is not dependent upon the legal responsibility of an
individual
o ex. a state gent is convicted fof an international crime: the act in
question may be attributable to the state and both the individual
and the state are internationally responsible
state responsibility in the Bosnian genocide case
o Serbia was not responsible for the perpetrators
o but was responsible under art. 1 genocide convention for failing to
prevent a genocide
o thereby the court shows that the relevant test of state
responsibility is different in ICL and general int’l law
1.5. A BODY OF CRIMINAL LAW
4
