International Criminal Law

Ilias Bantekas

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317353
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book offers a comprehensive analysis of the major areas of international criminal law (ICL). It approaches its subject matter from both a criminal law and an international law perspective, analysing the various topics exhaustively but in an accessible manner. While looking at the jurisprudence of the international tribunals, it is not confined to this approach, instead looking at all the fields in which ICL is employed. Thus it covers the theory of ICL, including the concepts of individual responsibility, the sources of ICL, State criminality, legality and legitimacy; the subjective (mens rea) and objective (actus reus) elements of international crimes and the particular position of the International Criminal Court Statute; the various modes of liability and participation in international crimes; the doctrine of command responsibility; defences and grounds for excluding liability; immunities; an extensive analysis of all war crimes; crimes against humanity; genocide; the crime of aggression; international criminal law of the sea, including piracy, armed robbery at sea, pollution-related offences, fisheries-related offences, maritime terrorism, injury to cables and pipelines, illegal broadcasting and enforcement against such offences; transnational crimes, including organised crime, corruption, money laundering, illicit trafficking of drugs and postal offences; particular international offences against the person, especially slavery and related practices, apartheid, enforced disappearances and torture; the legal contours of the crime of terrorism; an analysis of the historical development of ICL and of the legal processes relating to the Nuremberg Tribunal; an analysis of the UN tribunals for Yugoslavia and Rwanda; an examination of the International Criminal Court; an analysis of hybrid internationalised tribunals, such as those of Iraq, Sierra Leone, Cambodia, East Timor, Kosovo, Lebanon and Lockerbie, as well as an examination of truth commissions and amnesties; the various strands of criminal jurisdiction, and; the different modes of inter-State cooperation in criminal matters, including cooperation with international tribunals, extradition, illegal rendition and mutual legal assistance.

Part I

Fundamental Principles of International Crimes and Criminal Justice

1
Fundamentals of International Criminal Law

1.1 Introduction

International criminal law (ICL) constitutes the fusion of two legal disciplines: public international law and domestic criminal law. While it is true that one may discern certain criminal law elements in the science of international law, it is certainly not the totality of these elements that make up the discipline of ICL. Its existence is dependent on the sources and processes of international law, as it is these sources and processes that initially create it and ultimately shape and define it. This can be illustrated by examining any one of the acknowledged international offences. Piracy jure gentium, for example, exists simultaneously as a crime under customary international law, as well as under treaty law, specifically the 1982 United Nations Convention on the Law of the Sea (UNCLOS).¹ In examining its status and nature, whether as a treaty or customary rule, recourse is to be made not only to the relevant sources and norms of international law, but also to the non-piracy clauses of UNCLOS itself. The concept of piracy cannot be fully realised unless other concepts are first explored, such as the freedom to navigate on the high seas, delimitation of maritime zones, Flag State jurisdiction and many others. Similarly, one cannot examine an international offence, such as piracy, without recourse to those rules which delineate the legal standing of natural persons in the international legal system and their capacity to enjoy rights directly from this system, as well as to suffer lawful consequences for any violations (international legal personality). Undoubtedly, it does not suffice simply to discern and extrapolate mechanically all those criminal elements that are abundant in general international law and then combine them to establish a new discipline, as this does not help explain the binding nature of rules, nor their role in any given normative system.

The criminal laws of nations, expressed both through legislative action and the common law, constitute a vital component of ICL. International rules are generally imperfect and imprecise, not least because of the political difficulties in their drafting and in reaching agreement among competing national interests. With few exceptions, and in correlation to the preceding argument, international treaties rely on signatory States to further implement their provisions with precision at the domestic level, not necessarily in identical manner, but with a certain degree of consistency and uniformity based on the object and purpose of each particular treaty.² In the case of piracy jure gen-tium, for example, the national legislation implementing the piracy provisions of UNCLOS into domestic criminal law will have to address the question of the material and mental attributes of the offence. UNCLOS is largely silent on the mens rea of piracy and so a myriad of mental components has to be prescribed at the domestic level, including whether or not the offence is one of strict liability or whether it requires a special intent (dolus specialis) and if it may be excused or mitigated by reference to any defences. Some States may posit that according to general principles of their own criminal law an accused is relieved from criminal culpability if the criminal conduct was based on political or other ideological motivation (the so-called political offence exception), especially where the relevant convention was silent as to the applicability of such a defence.³ Similarly, the imposition of penalties at the discretion of parliament or the national judiciary, as well as the judicial determination of the extent of the various maritime zones, serve to indicate that certain elements of even a very old and reasonably well established international offence, such as piracy, may vary from country to country. But, this is an unavoidable occurrence, since criminal law is above all a practical discipline, and so ICL cannot operate in a theoretical vacuum, but in strict accordance with its objectives: that is to prevent the commission of offences, to prosecute and ultimately to punish offenders. In the absence of an all-embracing international criminal authority, these functions have been bestowed to national authorities, whose conformity to international law generally passes through domestic channels, such as national law and the dictates of the executive. As will be demonstrated below, however, the discretion of States to define international offences in their domestic law is not unlimited, but circumscribed by general international law and certain ICL principles.

1.2 Sources of International Law and Individual Legal Personality

Article 38(1) of the 1945 Statute of the International Court of Justice recognises two types of sources: primary and secondary. The primary sources of international law are treaties, international customs and general principles of law, all being independent and capable of producing binding rules. The secondary sources of international law, namely the writings of renowned publicists and the decisions of international courts, simply serve to ascertain and perhaps interpret the primary sources. Treaties are agreements between sovereign nations that are governed by international law and which are generally binding only upon their respective parties. Evidence as to the existence of customary law may be ascertained by reference to two elements: an objective and a subjective.⁴ The objective element is made up of the uniform and continuous practice of States with regard to a specific issue and, depending on its adherents, this may take the form of a universal or a local custom. The subjective element involves a State’s conviction that its practice in a particular field emanates not from comity but from a legal obligation which it feels bound to respect. It has been reasonably argued that the objective element is not always required in the formation of a customary rule. This is predicated on the notion that although every sovereign State has an interest in the development of international norms not all States have the capacity to demonstrate some kind of material action. For example, the utilisation of outer space has been achieved by only a limited number of developed nations, as has the exploration of the natural resources lying beneath the seabed of the high seas. This incapacity to undertake physical practice in particular fields should not prevent less developed States from having a voice in the regulation of these areas. It is for this reason that General Assembly resolutions, which are not otherwise binding, may be declaratory of customary law where they evince universal consensus through the unanimity of participating States.⁵ This is not to say, of course, that materially able States will necessarily be constrained by the normative effects of less able nations, as is the case with nuclear weapons and non-proliferation. In this manner, a State may express its approval or disapproval of an emerging norm (and thus shape a customary rule) without actually having undertaken any material action. But, even where State practice may be deemed to be required, material action is not necessarily the best determinant. In the field of international humanitarian law, for example, it would be impracticable to ascertain State practice with regard to the behaviour of troops on the battlefield, not least because such practice may be antithetical to the orders received. As a result, it is argued that recourse should be made to military manuals and decrees, ratification of relevant instruments and other similar official pronouncements indicating a legal commitment.⁶ What this means is that even if the agents of States commit serious and widespread crimes, despite their national laws and statements to the contrary, they cannot point to their material action to avoid liability by arguing that their customary obligations stem from that material practice. National courts have on numerous occasions upheld the customary nature of particular crimes.⁷

International customary rules bind all States, except for those that have consistently and openly objected to the formation of a rule from its inception.⁸ This general framework is subject to a single exception; peremptory norms of international law (jus cogens rules). These are norms from which no derogation whatsoever is possible because of their fundamental importance in the community of nations.⁹ Jus cogens comprise the fundamental human rights and rules of international humanitarian law, as well as the prohibition of the use of unlawful armed force. Similarly, treaty provisions reflecting peremptory norms of international law are binding upon third parties to such treaties by virtue of their peremptory nature, despite the fact that third States are not ordinarily bound by treaties to which they are not parties. Customary law is particularly important in ICL because it is used to fill in gaps in situations where treaty law is silent. The ad hoc tribunals for Yugoslavia and Rwanda have in fact relied heavily on custom to demonstrate, inter alia, that war crimes perpetrated in internal armed conflicts are regulated under international law or that particular modes of liability, such as joint criminal enterprise, are applicable.

General principles of law can be found both in international law itself, as well as in the domestic legal systems of States.¹⁰ General principles of international law, such as pacta sunt servanda, constitute a priori principles that underlie both customary and treaty law. On the other hand, general principles of domestic law are practices or principles common to a substantial number of nations.¹¹ It has been accepted by post-Second World War military tribunals,¹² as well as by contemporary international judicial bodies such as the European Court of Justice (ECJ),¹³ that for a domestic principle to be regarded as generally accepted it must be recognised by most legal systems, not all. Under customary international law, reliance upon principles deriving from national legal systems is justified either when rules make explicit reference to national laws,¹⁴ or when such reference is ‘necessarily implied by the very content and nature of the concept’.¹⁵ This suggests that the practice of international tribunals has been to explore all the means available at the international level before turning to national law. It is instructive to note that the 1998 International Criminal Court (ICC) Statute places general principles of law derived from legal systems of the world in a position of last resort and only then to be utilised if they are consistent with international law.¹⁶ To a very large degree, these propositions reflect the fact that the vast majority of fundamental general principles of national laws, such as the principle of legality and the prohibition of retroactive laws, have matured into customary and treaty norms. The fundamental problem with general principles, however, concerns their identification and use by international criminal tribunals without having set forth in advance a clear and consistent methodology. In practice, judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have referred to principles encountered in legal systems with which they, or their legal assistants, were familiar with, but: (a) omitted significant references to legal systems that would better represent a global consensus, such as that of Muslim,¹⁷ former communist or African States, and; (b) did not provide the legal context in which a particular concept is framed, thus failing to clearly demonstrate whether a particular concept is identical only in name or essence in two or more nations.

The sources of ICL do not adequately explain the status of natural persons in relation to international crimes. Can they be held criminally liable under international law or solely under the relevant rules of domestic law? The answer to this may seem obvious today, but it has not always been so. States have been the traditional subjects of international law, the entities primarily endowed with international legal personality, that is, the ability to enjoy and enforce rights and duties directly under international l...