Introduction to International Criminal Law

International law

International law is also known as Public International Law and Law of Nations is the set of rules, norms and standard which governs the relationship between different nations. In this article, will be discuss about the International Criminal Law.

Public International Law

It is the body of rules that is legally binding on states and international organization in their interaction with other States, international organizations, individual etc.

  1. International Humanitarian Law:- It deals with a set of rules which seek for humanitarian reasons to limit the effects of armed conflicts.[1]It applies to armed conflicts. It is also known as the Law of war or Law of armed conflicts.
  2. International Criminal Law:- It is a body of public international law that establishes individual criminal responsibility for international crimes such as war crimes, crimes against humanity, genocide and aggression.
  3. International Human Rights Law:- It is the law which is designed to promote human rights on social, regional and domestic levels.
International Criminal Law

International Criminal law deals with the criminal responsibility of individuals for international crimes. It is designed to prohibit certain categories of conduct of serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration.

It deals with the criminal responsibility of individuals for the most serious of human rights and international humanitarian law violations.[2]

A distinction can be made between international crimes which are based on international customary law and therefore apply universally and crimes resulting from specific treaties which criminalize certain conduct and require the contradicting states to implement legislation for the criminal prosecution of this conduct in their domestic legal system.

International crimes are considered to affect the international community as a whole.

Sources of International Criminal Law

As international criminal law is a subset of public international law, the sources of ICL are largely the same as those of public international law.[3]

There are six sources of International Criminal Law that are follows:-

  1. Treaties
  2. Customary laws i.e. custom
  3. General principles of law
  4. Judicial decisions
  5. Learned writings
  6. Jus cogens
  7. Treaties: -Treaties are agreements (usually in written form) creating rights and obligations between states. ICL has many treaty sources such as
  8. Rome Statute of the International Criminal Court,
  9. 1977 Additional Protocol II of Geneva Convention
  10. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
  11. Pact on Security, Stability and Development in the Great Lakes Regions (2006) and its Protocol on the Prevention and the Punishment of the Crime of Genocide, War Crimes and crimes against humanity and all forms of Discrimination
  12. Convention against Torture and other Cruel, Inhuman or Degrading treatment or punishment.
  13. Customary laws:- Custom is consisting of:-
  • State practice
  • Opinion Juris

The state practice must be consistent, uniform and general among the relevant states, although it does not have to be universal. Opinio Juris is the general beliefs or acceptance among states that a certain practice is required by law.[4]

Much of the content of substantive ICL exists in customary laws.

  • General principles of law:- General principles of law are often used as a gap-filler where treaty & customary international law are silent. It is recognized by the ICJ. Eg: – It includes the principle of estoppels, Res judicata and use of circumstantial evidence.

Where a principle “is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified.”[5]

  • Judicial Decision and Learned Writings:- The ICTY & ICTR generally follow their earlier jurisprudence, although they are not always bound to do so.

Trial chambers are not obligated to follow the decision of other trial chambers, but they must follow the decision of the appeals chamber. The appeal chamber may depart from its own decision but only in exceptional situations when it is in the interest of justice to do so.[6]

The ICTY & ICTR have also referred to the judicial decision of national courts and other international courts, including the ICJ, the International Military Tribunal at Nuremberg, and other posts World War II courts, the European Court of Human Rights.

Treaties only bind states that are parties to them, whereas general customary law binds all states and “local” custom binds as few as two states only

  • Jus Cogens:- It reflects the natural law concept of fundamental rights. The notions of jus cogens may apply in invalidate treaties. The domestic statute promotes the use of aggression, slavery, genocide or war crimes.

Siderman case, 1992[7]

Facts: – The Siderman fled to the United States after the military junta in Argentina tortured Jose Siderman and threatened his family with death. These complaints were later filled by Siderman in the U.S. while filing for damages in relation to the torture and the expropriation of their property.

Issue: – Does a right to be free from official torture deserve the highest status under International Law? And is this right fundamental and universal?

Yes, a right which deserves the highest status under International law is the right to be free from official torture, and this right is fundamental and universal. The record did not throw light on shielding Argentina from the Siderman claims that their family business was stolen from them by the military junta.

The fact that in respect of the Siderman claims Argentina has implicitly waived its sovereign immunity. Hence, the district court was wrong on this ground for dismissing the Siderman torture claims. The judgment was therefore reversed and remanded.

General Principles of International Criminal law

Article 22-33 defines general principle of international Criminal Law as follows:-

Article 22

Nullum crimen sine lege

It is the principle of criminal law and international criminal law that a person should not face criminal punishment except for an act that was criminalized by law before he/she performed the act.

Article-23

Nulla poena sine lege

A person convicted by the court may be punished only in accordance of law.

Article-24

Non-retroactivity ratione personae

No person shall be criminally responsible under this statute for conduct prior to the entry into force of the statute.

Article-25

Individual criminal responsibility

A person who commits a crime within the jurisdiction of the court shall be individually responsible and liable for punishment in accordance with the statute.

No provision in this statute relating to individual criminal responsibility shall affect the responsibility of states under international law.[8]

Article-26

Exclusion of jurisdiction over person under eighteen

The court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of crime.

Article-27

Irrelevance of official capacity

This statute shall apply equally to all persons without any distinction based on official capacity.

Article-28

Responsibility of commanders and other superiors

A military commander or person acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under their command and control.

A superior shall be criminally responsible for crimes within the jurisdiction of the court committed by subordinates under his/her control, as a result of his /her failure to exercise control properly over such subordinates where:

  • The superior consciously disregarded information which clearly indicated, that subordinates were committing or about to commit the crime,
  • The crime concerned activities that were within effective responsibility and control of superior
  • The superior failed to take all necessary and reasonable measures within his/her power to prevent the commission or to submit the matter to the competent authorities for investigation.[9]

Article-29

Non-applicability of statute of limitations

The crimes with in the jurisdiction of the court shall not be subject to any statute of limitations.

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Article-30

Mental element

A person shall be criminally responsible and liable for punishment for a crime only if the material elements are committed with intent and knowledge.

Article-31

Grounds for excluding criminal responsibility

A person shall not be criminally responsible if at the time of that person’s conduct:

  • The person suffers from a mental disease
  • The person is in a state of intoxication
  • The person acts reasonably to defend himself or herself
  • The conduct which is alleged to constitute a crime has been caused by an act resulting from a threat of death or serious bodily harm against that person or another person.

Article-32

Mistake of fact or Mistake of law

A mistake of fact shall be ground for excluding criminal responsibility only if it negates the mental element required by the crime.

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the court shall not be a ground for excluding criminal responsibility.

Article-33

Superior order and prescription of law

A crime has been committed by a person pursuant to an order of a government or of a superior; military or civilian shall not relieve that person of criminal responsibility unless:

  • The person was under a legal obligation to obey orders of the government,
  • The person did not know that the Order was unlawful
  • The order was not manifestly unlawful

 For the purpose of this article, order to commit genocide or crime against humanity is manifestly unlawful.

International Core Crimes

International crimes are considered to affect the international community as a whole. An international crime is an act that is directly criminalized by international law. [10] International crimes are defined under the Rome Statute of ICC. Crimes over which international tribunals have been given jurisdiction under international law are:-

  1. Genocide
  2. Crime against humanity
  3. War crimes
  4. Aggression
Genocide (Article-6)

Genocide is the international crime to destroy a people usually ethnic, national, racial or religious group in whole or in part. The term Genocide was coined by Raphael Lemkin in 1944 in his book Axis Rule in Occupied Europe. The book describes the implementation of Nazi policy in occupied Europe & sight earlier mass killing.

Genocide is derived from Greek word “genos” mean people and “caedo” means act of killing.

The definition of Genocide is defined under Article-II of the Genocide Convention as

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group as such

  1. Killing members of the group,
  2. Causing serious bodily or mental harm to members of the group,
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
  4. Imposing measures intended to prevent births within the group,
  5. Forcibly transferring children of the group to another group.

Genocide as a crime in International Law

In 1946, the first session of UNGA adopted a resolution affirming that genocide was a crime under International Law.

In 1948, the UNGA adopted the Convention on the Prevention & Punishment of the Crime of Genocide.

The Rome Statute also adopted the definition of Genocide under Convention.

Crime against Humanity (Article-7)

Crime against Humanity consist of various crimes such as

  • War crimes
  • Murder
  • Genocide
  • Dehumanization
  • Ethnic cleansing
  • Enslavement
  • Torture
  • Rape etc,

For the purpose of directly attack against any civilian population.

Unlike Genocide & War crimes there has never been a comprehensive convention on crime against humanity.

Crime against Humanity-20th Century

  1. Millions of civilian’s infants were killed in the bloodiest period in global history, for every civilian perished combatant was killed.
  2. Efforts of the International Committee of Red Cross, humanitarian laws and rules of Warfare were not able to stop this Crime against Humanity.
  3. Crime against Humanity applies within the territory of the country.
  4. These terminologies were invented since the previous vocabulary was not enough to describe these offences. War criminals did not fear prosecution, apprehension or imprisonment before WWII.
  5. British PM Churchill favours the outright execution of War Criminals.
  6. The US was more lenient for a Just trial.
  7. The British government was convened to institute the Nuremberg trial which left several legacies.
  8. The UN pointed out the Rome Statute of ICC especially Article-7 which defines large scale acts of violence against the civilian population.
  9. These act consist of murder, enslavement, rape, torture that violet International Laws.
  10. Crime against Humanity is certain to act that is purposely committed as a systematic attack directed against any civilians or an identifiable part of the civilian population.
  11. The first prosecution took place in the Nuremberg trial.
  12. Crime against Humanity has been prosecuted by ICJ, ICC, ICTY, ICTR as well as domestic prosecution.
  13. It has been developed through customary international law & has not been codified in any international convention.
  14.   It can be committed during peace or war.
  15. They are not sporadic events but are part of government policy or a wide practice of atrocities tolerated by the government.
  16. Although the perpetrators need not identify themselves with this policy or a de-facto authority.
War crimes (Article-8)

A war crime is an act that constitutes a serious violation of the laws of war that gives rise to individual criminal responsibility.

War crimes are grave breaches of treaty or customary rules of IHL, and are considered to constitute the most serious violations of IHL.

War crime includes:-

  • Intentionally killing civilians or prisoners
  • Torturing
  • Destroying civilian property
  • Taking hostages
  • Raping
  • Using child soldiers
  • Pillaging
  • Declaring that no quarter will be given
  • Seriously violating the principles of distinction, proportionality and military necessity.

The Geneva Convention, 1949 defined new war crimes and established that states could exercise universal jurisdiction over such crimes.[11] In the late 20th century, following the creation of several international courts, additional categories of war crimes applicable to armed conflicts other than those between states such as civil war.

Grave breaches are defined in Article 147 of the fourth Geneva Convention.

Crime of Aggression ( Article-8 bis)

It is a specific type of crime where person plans, initiates or executes an act of aggression using state military force that violates the charter of the United Nations.

It is judged as a violation based on its charter, gravity and scale.

Act of aggression includes:-

  • Invasion
  • Military occupation
  • Bombardment
  • Military blockade
  • Annexation by use of force etc.
Conclusion

To summarize, International Criminal Law basically deals with prohibition of certain crimes such as genocide, a crime against humanity, war crimes, crime of aggression and to make perpetrators of such conduct criminally accountable for their act and establish individual criminal responsibility. The sources of ICL are same as of International law.

Also Read: Deceleration of International Corruption – An International Approach


[1] International Humanitarian Law, https://icrc.org.in

[2] International criminal law, https://diakonia.se

[3] See, e.g Dapo Akande, The Sources of International Criminal Law, in OXFORD COMPANION TO INTERNATIONAL CRIMINAL LAW AND JUSTICE 41-53 (Cassese, et al. eds 2009)

[4] CRYER, Supra note 1, at 11

[5] United Nations War Crime Commission, Law Reports of Trials of War Criminals: United States v. Wilhelm List & ors, vol VIII, 34, 49 (1949)

[6] George Anderson Rutaganda, Case No. ICTR-96-3-A, Appeal judgment, 26 May 2003, 26, 188 ; Zlatko Aleksovski, Case No. IT-95-14/1-A , Appeal judgment, 24 MARCH 2000

[7] Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 1992 U.S. App. LEXIS 11518,92 Cal. Op.Service 4340, 92 Daily Journal DAR 6945 (9th Cir. Cal. May 22, 1992)

[8] General principles of International Criminal Law, hrlibrary.umn.edu

[9] General principles of International Criminal Law, https://icrc.org

[10] Werle, Principles of International Criminal law (The Hague: T.M.C. Asser Press, 2005

[11] Cassese, Antonio (2013) International Criminal Law (3rd ed)

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