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Published by Enhelion, 2019-11-24 05:21:48

Module_9 (Pubic International Law)

Module_9 (Pubic International Law)




International criminal law (ICL) constitutes the fusion of two legal disciplines: international law
and domestic criminal law.1 It may be said to comprise “international rules” that declare “certain
human behavior punishable as crimes under international law”.2 These rules aim to protect the
“basic values” of the international community as well as the individual, values that are well
grounded in the international legal order and are reflected in universal legal instruments such as
the United Nations Charter and the 1948 Universal Declaration of Human Rights.3 The
elaboration of these rules in various fora, and their implementation by different national and
internationalized bodies, has resulted in an emerging international criminal justice system that is
becoming more robust. Nevertheless, international criminal law is still relatively young and
undeveloped when compared to criminal legal systems at the national level. While we have come
a long way, there is still much to be done to operationalize international criminal law in a way
that fulfills its promises of accountability and justice.

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 create and define it.4 The rise of individual criminal responsibility directly
under international law marks the coming together of elements of traditional international law
with more modern approaches to human rights law and humanitarian law, and involves
consideration of domestic as well as international enforcement mechanisms.5 Although the rights

1 Morten Bergsmo, Cheah Wui Ling and Yi Ping (eds.), HISTORICAL ORIGINS OF INTERNATIONAL CRIMINAL LAW:
VOLUME I (Torkel Opsahl Academic EPublisher, 2014) 47
2 Otto Triffterer, Preliminary Remarks: The Permanent International Criminal Court-Ideal and Reality, in Otto
NOTES, ARTICLE BY ARTICLE, (C.H. Beck, Hart and Nomos, 2008) at p. 22.
3 Ibid
4 Ilias Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW (2nd edition, Taylor & Francis, 2004) 14
5 W. Schabas, INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (3rd edn, Cambridge University Press,
2007); Robert Cryer, Hakahn Friman, D Robinson and E Wilmshurst, AN INTRODUCTION TO INTERNATIONAL
CRIMINAL LAW AND PROCEDURE (Cambridge University Press, 2007); Gerard Werle, PRINCIPLES OF
INTERNATIONAL CRIMINAL LAW (The Hague, 2005); Morten Bergsmo, Cheah Wui Ling and Yi Ping (eds.),

of individuals in international law have evolved significantly in the post-1945 era, the placing of
obligations directly upon persons as opposed to states has a distinct, if narrow, pedigree.6

History of International Criminal law (ICL)

The international criminal proceedings following World War II are credited with launching the
modern regime of international criminal law (ICL).7 In particular ICL draws on four main
strands of international law history: nineteenth-century prohibitions against piracy, the
subsequent regulations of slavery and the slave trade, the once theological and later secular
theory of just war, and international humanitarian law (IHL) or the ‘‘law of war.’’ On this
foundation, the international community gradually built the norms, rules, instruments, and
institutions that now make up the modern ICL machinery.8

International criminal law has experienced exponential growth since the 1990s. However, there
is still much to learn about its origins, and about the historical events, processes and actors that
will further our understanding of international criminal law’s own history and development – a
task that this module is too short to accomplish, since the literature on the historical development
of ICL itself easily spans over thousands of pages.9 What is conventionally articulated about the
trajectory of international criminal law history is in reality quite recent in provenance. It usually
begins with the Nuremberg and Tokyo Trials after the Second World War. It continues with the
establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia (‘ICTY’)
and the International Criminal Tribunal for Rwanda in the 1990s. These well- known tribunals
are placed alongside the development of hybrid or internationalized courts such as the Timor
Leste Serious Crimes Panel, the Special Court for Sierra Leone and the Extraordinary Chambers
in the Courts of Cambodia, as well as the rise in domestic prosecutions such as those in Latin

7 Beth Van Schaack and Ron Slye, A Concise History of International Criminal Law, Santa Clara University School
of Law Faculty Scholarship <available at:>
8 Ibid
9 Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW (2nd edition, Taylor & Francis, 2004)

America and the International Crimes Tribunal of Bangladesh. And finally, there is some kind of
culminating point with the founding of the International Criminal Court (‘ICC’) in 2002.10

In fact, the origins of international criminal law stretch far beyond the established consensus. For
example, in the post-Second World War era hundreds of prosecutions were conducted by the
Allied Powers and other national governments throughout Europe and Asia.11 Despite the large
number of trials that took place and the thousands of defendants prosecuted, we still do not know
very much about these post-war trials, though there is now some belated awareness of their
existence and even their significance. The international legal community has become cognizant
of the fact that the Nuremberg and Tokyo Trials were not the only tribunals organized after the
Second World War. In the 1990s, for example, judges at the ICTY drew attention to some post-
war national trials by referring to them as evidence of customary international law.12 The judges’
usage of these historical trials underscored how the latter may have an immediate present-day
relevance for both practitioners and academics. Curiosity about less well-known historical trials
was piqued and research projects were initiated. There have been conferences and publications
focusing on these trials and “hidden histories”.13


There is no doubt that the International Military Tribunal at Nuremberg and the other allied war
crimes tribunals around that time have played a significant role in shaping International Criminal
Law, as we know it. Despite having roots much older than the last century, it is inarguable that
the post-World War II period was nothing short of a watershed moment in the development of
ICL. The post-World War II period bore witness to the conception of two tribunals dealing with
international crimes – the International Military Tribunal for the Trial of German War Criminals
(the IMT or Nuremberg Tribunal) and the International Military Tribunal for the Far East

10 Sarah Nouwen, Justifying Justice, in James Crawford and Martti Koskenniemi (eds.), THE CAMBRIDGE
COMPANION TO INTERNATIONAL LAW (Cambridge University Press, 2012) p. 328
11 Simon Chesterman, International Criminal Law with Asian Characteristics, NUS Law Working Paper 2014/2
<available at:>
12 David Cohen, The Historiography of the Historical Foundations of Theories of Responsibility in International
Criminal Law, 2014 (1) HOICL, p. 23–83; Marco Sassòli and Laura M. Olson, The Judgment of the ICTY Appeals
Chamber on the Merits in the Tadic Case (2000) 82 INTERNATIONAL REVIEW OF THE RED CROSS, p. 733
13 Kevin Jon Heller and Gerry Simpson (eds.), THE HIDDEN HISTORIES OF WAR CRIMES TRIALS (Oxford University
Press, 2013)

(IMTFE or Tokyo Tribunal).14 The Allies set up IMT to prosecute the ‘Major War Criminals’
where they initiated charges against twenty -three defendants – out of which judgments were
passed against twenty-two.15 On the other hand, the IMTFE Charter selected twenty-eight
defendants, including former premiers and ministers.

Two pertinent points must be made here while discussing the Nuremberg and Tokyo Tribunals
from a historical perspective. Firstly, a key point of the Nuremberg Tribunal was the fact that it
did not clearly distinguish between war crimes and crimes against humanity save in two cases:
Streicher16 and von Schirach17 were charged with crimes against humanity but not with war
crimes. Secondly, with respect to the International Military Tribunal for the Far East/Tokyo
Tribunal, the definition of crimes against humanity was different from that of the IMT Charter on
two accounts: the Tokyo Charter broadened the scope of the crimes to allow for the inclusion of
imprisonment, torture and rape; further, it also eliminated the requirement that crimes against
humanity had to bear a nexus to war – and this was achieved through the omission of the words
‘before or during the war’18. Both the charters agreed on some aspects – for example they both
nullified the defenses of superior orders as a ground to evade criminal responsibility19.


A deeper analysis of the Nuremberg Tribunal reveals several points. Several criticisms are
leveled against the IMT when it comes to judging how efficient and fair it was as a method of
international adjudication. One of the first criticisms that is made against the IMT is the fact that
it was an instance of ‘victor’s justice’. It isn’t a single accusation in itself, often being presented
as an amalgamation of the deficiencies that existed in the Nuremberg Tribunal. For the purposes
of this paper, this accusation will be presented forth in a three-pronged manner – being

14 UNWCC, 1948; V. Jescheck, Verantwortlichkeit (1952), pp. 126; König, Legitimation (2003), pp. 88; Maogoto,
War Crimes (2004), pp. 88
15 Kai Ambos, Development of International Criminal Law and Tribunals, in Gerben Bruinsma & David Weisburd
16 Judgment against Julius Streicher, IMT <available here:>
17 Judgment against Baldur von Schirach, IMT <available at:>
18 Yuki Tanaka, Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, p. 149
19 Paola Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary
International Law, EJIL 10 (1999), pg. 173; Article 7 of the IMT Charter; Article 6 of the IMTFE Charter; Yoram
Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (OUP, 2014).

distributed into three claims revolving around the same premise. For example, it is often asserted
that the trial itself was not fair, and that the sitting judges who heard the prosecution and passed
the judgments were biased against the accused.20 Additionally, it’s also pointed out that it was
the Allied Powers that had the full power to design and structure the applicable ‘charters’ and
that the law was intentionally designed to guarantee convictions of the officials of the Axis
countries. The criticism, that in the view of the author carries the most weight is the fact that both
Allied and Axis powers were equally guilty of committing war crimes, but while the crimes
committed by the Axis armies were punished via the establishment of the tribunals, the atrocities
committed by the Allies went unpunished and rather unaddressed.

Addressing the first concern raised by many, there were several aspects of the Nuremberg IMT
that were imperfect. To note but a few factors that justify this statement, a heavy reliance was
placed on affidavit evidence21; there was a huge disparity (in terms of resources) between the
prosecution and the defense. Although it can be argued that applying the standards prevalent
during the era that Nuremberg happened, the proceedings were quite fairly run, it cannot be
denied that the presence of neutral judges, or the presence of a few judges from Germany, could
have enhanced the legitimacy of the proceedings significantly22. On the subject of the second
critique that the law was framed in such a manner so as to guarantee convictions of the accused,
it in fact cannot be denied that the law was made retrospectively with the acts committed by the
Nazis being at the back of the head of every single Allied power. The crimes in the charter were
defined retrospectively indeed, but it would be rather absurd for the Nazis to claim that they truly
thought that their actions were not of a criminal nature – specially so considering the fact that the
Allied forces had signed the Moscow Declaration in 1943 – followed by four more treaties
during the Moscow conference of 1945. If one factors in the treaties signed during that time,
wherein the acts of the Axis powers were openly condemned by the Allies and support was
rallied to the causes of the Chinese, and the French among other nations affected by the
aggression displayed by the Axis powers, the second critique loses most of its venom. However,
the third prong of this argument is probably the strongest of the lot. Although several people
claim that the Allies did not commit mass crimes of the same magnitude and significance as the

20 Richard H. Minear, Victor’s Justice: The Tokyo War Crimes Trial (Princeton, 1971) pp. 74–124
21 M. Lipmann, Nuremberg and American Justice, 5 NOTRE DAME J.L. ETHICS & PUB. POLICY 951 (1991)
22 Arthur Goodhart, ‘Questions and Answers Concerning the Nuremberg Trials’ (1947) 1 International Law
Quarterly 525, 527

Holocaust, it is undeniable that there were several perpetrators amongst their ranks as well. It is
indeed well documented that the Americans, French, British and Soviet forces committed large
scale atrocities in the European theatre of the second world war – particularly inhuman treatment
of the prisoners of war, and the rape of German women – among many other atrocities that do
not receive the same kind of attention that the crimes of the German and Japanese forces do.23
Although the defense was restricted from bringing up the crimes committed by the Allied forces,
the famous German judge Kranzbuler, representing Grand Admiral Karl Donitz of the
Kriegsmarine raised the issue of ‘tu quoque’ as being an issue of importance as Chester Nimitz,
the US Chief of the Pacific Navy had admitted that the practice of the allied ships was the same
as those charged against the navies of Germany under Donitz’s command.24 Although the judges
at the tribunal did not accept this claim, it did have the rather interesting effect of claims related
to tu quoque not being factored in during the sentencing process.

An interesting point to note is the fact that now when we remember the Nuremberg trials, we like
to think of them as being the mode through which justice was brought upon the German officers
for their contributions and participations in the atrocities committed during the Holocaust.25
However, there is a distorted historical legacy here, because when the IMT was formed, the
prosecution saw aggression, and not the Holocaust, as being the primary cause for the trial being
conducted.26 This is supported by one judgment stating that aggression was the ‘supreme
international crime’.27


Before venturing into an analytical assessment of the IMTFE and its achievements and
criticisms, its important to mention that the majority judgment rendered by the Tokyo Tribunal
was in agreement and in synchronization with the opinion held by the Nuremberg IMT on all but

(Polity Press, 2017); Studs Terkel, THE GOOD WAR: AN ORAL HISTORY OF WORLD WAR II (Pantheon Books, 1997
2nd edn.)
24 Case No. 18 Trial of Major War Criminals at Nuremberg (London, 1948) <.available at:>
25 Mark Osiel, MASS ATROCITY, COLLECTIVE MEMORY AND THE LAW, (New Brunswick, 1997) at 225–6
26 Ibid
27 Supra note 11 at p. 186

one aspect – the Tokyo tribunal dealt with command responsibility as well, discussing it in some
detail and finding it to be applicable to both military as well as civilian defendants28.

Since the Tokyo IMT agreed with the Nuremberg IMT on the facets of law, similar critiques can
be considered applicable to both of them, although it has to be said that the Tokyo IMT’s
judgments were more ‘extreme’. Indeed, no other critique of the Nuremberg IMT would be more
applicable to Tokyo than the fact that it was nothing but Victor’s Justice29. This is best displayed
in the view of the majority wherein it found all accused guilty based on the existence of an ‘all-
inclusive criminal conspiracy that involved all the accused’30. The manner in which the accused

were convicted and sentenced, and the reasoning employed suggest that they were merely

puzzles waiting to be fit into a preconceived thesis.

There were several other flaws in the process adopted during the trial as well. Unlike the
Nuremberg IMT wherein the tu quoque argument was not accepted by the judges – here, it was
not just accepted and given credence (due to the US’ deployment of atom bombs), it was also

raised by one of the judges themselves! Additionally, evidence and documents relating to the

existence of a Japanese chemical and biological weapons unit which experimented on humans
was hidden from the tribunal by the United States – wherein politics triumphed over justice as

they had promised them immunity from the trial in return for information regarding the
experiments31. However, one must keep several factors in mind while assessing the Tokyo

tribunal. There was disagreement and delay due to the fact that it was composed of a more varied

bench than Nuremberg, and additional problems surfaced due to translational issues. However, a
major blimp on the Tokyo tribunal’s functionality was the fact that the Emperor was not indicted
– and not even mentioned during the proceedings by either the prosecution or the defence.

Nevertheless, The Nuremberg and Tokyo tribunals contributed significantly to the development

of international criminal law, then in its infancy. For several decades, these tribunals stood as the

only examples of international war crimes tribunals, but they ultimately served as models for a

new series of international criminal tribunals that were established beginning in the 1990s.

28 R. John Pritchard, ‘An Overview of the Historical Importance of the Tokyo War Trial’ in Chihiro Hosoya, Yasuaki
Onuma, Nisuke Ando and Richard Minear (eds.), THE TOKYO TRIAL: AN INTERNATIONAL SYMPOSIUM (Tokyo,
1986) at 442-7
29 Richard Minear, VICTOR’S JUSTICE: THE TOKYO WAR CRIMES TRIAL (Princeton, 1971)
30 John Piccigallo, THE JAPANESE ON TRIAL (Austin, 1979) 212
(Cambridge, 1992) at 48-50


The creation of ICTY has contributed immensely to giving international institutions in the field
of ICL a solid grounding – it has directly contributed to the establishment of the ICTR
functioning as its direct precedent; and acting as a slightly less direct precedent to the conception
of the International Criminal Court (ICC)32. It has created an atmosphere of accountability. One

of the main achievements that the ICTY has to its credit is that it has proved that international
prosecutions are possible even when there is an absence of a complete defeat of one side in a
conflict. However, the Tribunal has had issues while trying to contain the size of trials against
high-ranking defendants; and further, has had problems keeping in check the disruptive activities
of a number of defendants.33 Additionally, the Tribunal has spent a significant amount of time
and resources in an honest attempt to bring about corrective justice to its victims – even despite
coming under fire by victims’ rights advocates. In a nutshell, the impact of ICTY on
international law cannot be doubted34. However, the Tribunal has been at the center of several
accusations by legal scholars and jurists – one of them being the fact that the ICTY is too quick
to adjudicate that aspects of the law are customary35, and of having an expansionist agenda
regarding its own authority. But it must still be noted that most of its decisions are well reasoned
which is evidenced by the fact that States hasn’t criticized them.36 Although it might be
questioned whether the tribunal’s judgments on custom have been irreproachable, but it is

unclear that they have violated the nullum crimen sine lege ( a person cannot or should not face

32 Ralph Zacklin, The Failings of Ad-Hoc International Tribunals, (2004) 2 JICJ 541
33 Göran Sluiter, Compromising the Authority of International Criminal Justice: How Vojislav Šešelj Runs His Trial
(2007) 5 JICJ 529; Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and
Contumacious Counsel in War Crimes Trials (2006–2007) 39 Case Western Reserve Journal of International Law
155; Robert Cryer, Prosecuting the Leaders: Promises, Politics and Practicalities (2009) 1 Göttingen Journal of
International Law 45, at 72–4
34 Robert Cryer, Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals
on the ICRC Customary Study (2006) 11 Journal of Conflict and Security Law 239
35 Guénaël Mettraux, INTERNATIONAL CRIMES AND THE AD HOC TRIBUNALS (Oxford, 2005) 13–18
36 Gregory Lombardi, Legitimacy and the Expanding Power of the ICTY (2002–2003) 37 New England Law Review

criminal punishment except for an act that was criminalized by law before he/she performed the
act. )

principle.37 However, the chances of an iconic judgment are less than they were before – since
most of the groundbreaking cases have already been decided.

On the other hand, the ICTY has been accused of various mishaps against international law and
justice. Some accusations are clearly not very well founded and can be dismissed easily – such as
the claim that it has been biased towards or against one of the sides involved in the Yugoslav
wars. Some of the major criticisms leveled against the ICTY have been that the tribunal and its
proceedings have been too expensive and bureaucratic, its proceedings have been characterized
by delay38, the same violate the rights of defendants39 and that they are far removed from the
populations of Former Yugoslavia.40 In a nutshell, the essence of the criticism is that it has been
created as a ruse and as an ineffective alternative to taking more effective steps to prevent crimes
in Former Yugoslavia. None of the criticisms leveled against the ICTY can be dismissed outright
as each of them carries a certain amount of weight. The ICTY is indeed expensive, as it has cost
a total exceeding $1.5 billion from 1993 to 2009. The trials have taken quite a long time to reach
completion, though these delays have been justified by the ICTY as being necessary for ensuring
fair trials for the defendants. Speaking of fairness, certain decisions of the Tribunal have been
controversial in this regard. Most notable is how the tribunal has used anonymous witnesses.
Although it is understood that a certain amount of witness protection issues will crop up in any
crime of an international nature, the practice that the Trial Chamber adopted of providing
complete anonymity has proved quite controversial – and it has not been helped by the fact that
one such protected witness ended up providing a false testimony.41 The critique of being distant
from the relevant population has been highly distorted and subverted by local actors within
Former Yugoslavia. The Tribunal did commit the mistake of ignoring any such efforts initially
but has since tried to make amends by running several outreach programmes in the affected

37 Mohamed Shahabuddeen, ‘Does the Principle of Legality Stand in the Way of Progressive Development of the
Law?’ (2004) 2 JICJ 1007
38 Patrick L. Robinson, Ensuring Fair and Expeditious Trials at the ICTY (2000) 11 EJIL 569
39 Ibid
40 Laurel E. Fletcher and Harvey Weinstein, A World Unto Itself: The Application of International Criminal Justice
in former Yugoslavia in Eric Stover and Harvey Weinstein (eds.), MY NEIGHBOUR, MY ENEMY: JUSTICE AND
41 Tadic´ ICTY Trial Chamber. II (7.5.1997) paras. 553–4

areas. Further, it must be understood that the security conditions at that point of time would have
made it incredibly hard for the ICTY to properly function if it were to be situated in Former
Yugolsavia. It is rather absurd to suggest that ICTY was established instead of effective
measures as if it were not for the ICTY; the perpetrators of several atrocities would not have
been brought to justice. It established a medium for the international community to come
together and take note of brutal and atrocious crimes and provide a framework to deal with it.


Although the ICTR has been at the receiving end of a significant amount of criticism42, it has
also achieved a lot of success – notably the number of high level suspects that it has obtained and
tried. It has taken note of the actions of both civilian and military leaders responsible for the
genocide that took place. This is probably one point where it scores higher than the ICTY. The
Akayesu case was a watershed moment – which established not just the existence, but the
severity and scale of the crisis of 1994, something that people initially denied or downplayed.43
Perhaps the largest advance the tribunal has made has been the way it has treated sexual offences
and developed international criminal law relating to it44 and for elucidating on the responsibility
of those that control mass media for incitement to commit genocide.45

The proceedings at the ICTR have also taken an extremely long time to reach completion, and
have been delayed several times. A portion of it may be attributed to the difficulties involved
while translating Kinyarwanda to English and French – about which the tribunal was fairly
candid during the Akayesu trial. These problems have been further exacerbated by the location of
the tribunal in cities that lack a strong infrastructure. Additionally, the trials have also been
plagued by several repeated changes in defense counsel requested by the defendants. The
tribunal has also come under scrutiny for the manner in which it has treated victims and the kind
of protection, or the lack of it, that it has provided to its witnesses. The ICTR has come under the

42 Todd Howland and William Calathes, The UN’s International Criminal Tribunal: Is it Justice or Jingoism for
Rwanda? A Call for Transformation (1998) 39 Virginia Journal of International Law 135
43 Gerard Prunier, THE RWANDA CRISIS: HISTORY OF A GENOCIDE (Hurst and Co. 1995) at p. 345
44 Kelly Askin, ‘Gender Crimes at the ICTR: Positive Developments’ (2005) 3 JICJ 1007; Annual Report of the
ICTR 2002, S/2002/733, para. 75; Annual Report of the ICTR 2004, S/2004/601, paras. 59–61
45 Nahimana, Barayagwiza and Ngeze, ICTR T.Ch. 3.12.2003, (and on Appeal) ICTR Appeals Chamber

same criticisms as ICTY, having been touted as too expensive; or as an ineffective alternative to
supporting Rwandan justice efforts. One of the central criticisms has been that the ICTR has
been slow to investigate and try the RPF for the genocide in 2004. This may be due to lack of
state cooperation or as a prosecutor has put, due to it being less severe than the genocide
undertaken by the Hutus46, it still remains a valid criticism on the legacy that ICTR is seeking to


The ICC has finally taken several strides towards establishing a solid foundation for an
institutional framework for the enforcement of International Criminal Law. In the first few years
since its creation, it has sought to create a harmonious working equation between the Prosecutor
and Chambers, and has also looked at creating unique procedures for victims’ rights.

One of the foremost challenges that the ICC will have to deal with is that it must figure out a way
to deal with cases quickly and fairly. The first case that the ICC dealt with, Lubanga, cropped up
several problems relating to the disclosure of evidence and protection of witnesses that
participated at the trial, bringing to notice the need and importance of having judges who have
had experience in dealing with the myriad challenges of a criminal trial.47 The dependence of the
Court on the international community to ensure cooperation of reluctant States and while
implementing arrest warrants has caused a fair amount of delay. Even when such warrants have
been issues, enforcement of the same causes problems. The future success of the ICC will
depend in part on the extent to which States are ready to take ownership. Their cooperation will
be required not only via strict and willing compliance with the obligations owed to the Court, but
also by taking multilateral measures such as enlarging the mandate of Security Council
peacekeeping missions and helping provide proactive assistance with evidence and improving
their intelligence-gathering capabilities.

It is inevitable that cases brought to the ICC will be done so when conflicts are still ongoing. In
this regard, several critics have suggested that the needs of justice, in particular situations, should
be subordinated either temporarily or indefinitely to the needs of a peace process. In the case of

47 Judge Iain Bonomy, The Reality of Conducting a War Crimes Trial (2007) 5 JICJ 348

Uganda, the opening of the investigation and subsequent refusal to withdraw warrants issued
against the leaders of LRA was criticized by several scholars as acting as an impediment to the
peace process and efforts aimed towards persuading LRA members to defect.48 Several other
interests have brought forth this demand that in the event peace and justice contrast, peace should
triumph and decisions should be taken in the same vein.49 Although it can be suggested that
maintaining peace and sanctity is not the function of the ICC, it’s central function is to ensure
that violations of International Criminal Law are punished. The discretion provided to the
Prosecutor will often be the center of criticism as there will always be someone who chooses


a. Nullum crimen sine lege

The principle nullum crimen sine lege (that is, ‘no crime without a law’) prevents retroactive
application of the law. This is especially important given the 1966 UN International Covenant on
Civil and Political Rights (ICCPR), Article 15 of which requires that: No one shall be held guilty
on account of any act or omission which did not constitute a criminal offence, under national or
international law, at the time it was committed.50 Therefore, the existence of a particular crime
depends on the existence of legislation stating that the particular act is an offence, and for a
specific penalty to be imposed for that offence, the legislation in force at the time of its
commission must include that particular penalty as one of the possible sanctions for that crime.
The purpose of this principle is to ensure that legislation is specific and predictable so that
individuals may reasonably foresee the legal consequences of their actions.

The principle of legality is associated with the principle of non-retroactivity, the principle of
specificity, and the prohibition of analogy. The principle of non-retroactivity states that the law
proscribing a given act must have existed before the act in question occurred. As such, this
principle prohibits the retroactive application of the law. The principle of specificity requires that
the definition of the proscribed act be sufficiently precise, while the prohibition of analogy

48 Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the
International Criminal Court’ (2005) 99 AJIL 403, 416–21
49 Christopher Gosnell, ‘The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan?’
(2008) 6 JICJ 841
50 Article 15, International Covenant on the Civil and Political Rights 1966

requires the definition to be strictly construed.

Both the Nuremberg Tribunal and the ICTY have recognized this principle under the
international criminal law framework, holding that “the maxim nullum crimen sine lege is not a
limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to
punish those who in defiance of treaties and assurances have attacked neighboring States
without warning is obviously untrue, for in such circumstances the attacker must know that he is
doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong was
allowed to go unpunished.”51

The ICTY further held that a criminal conviction should never be based upon a norm which an
accused could not reasonably have been aware of at the time of his acts, and this norm must
make it sufficiently clear what act or omission could engage his criminal responsibility.52 During
the drafting stages of the Statute of the International Criminal Tribunal for Yugoslavia (ICTY
Statute), in his Report of the Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (UN Doc. S/25704), the UN Secretary-General acknowledged the principle,
addressing the criticisms that had followed Nuremberg regarding the retroactivity and lack of
clarity of the laws applied. He had observed that the application of the principle of nullum
crimen sine lege requires that the international tribunal should apply rules of international
humanitarian law which are beyond any doubt part of customary law so that the problem of
adherence of some but not all states to specific conventions does not arise. This would appear to
be particularly important in the context of an international tribunal prosecuting persons
responsible for serious violations of international humanitarian law.53

Article 22 of the ICC Statute provides for the principle as well, which is primarily evident from
its language:

1. A person shall not be criminally responsible under this Statute unless the conduct in question
constitutes, at the time it takes place, a crime within the jurisdiction of the Court

51 Bineet Kedia, Nullum Crimen Sine Lege in International Criminal Law: Myth or Fact?, INTL J OF INTL LAW
<available at:>
52 Prosecutor v. Vasiljevic, IT-98-32, ICTY Trial Chamber (29 Nov. 2002) ¶193
53 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (UN Doc. S/25704),

2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In
the case of ambiguity, the definition shall be interpreted in favour of the person being
investigated, prosecuted or convicted.

b. Nulla poena sine lege

The principle of nulla poena sine lege (that is, ‘no penalty without a law’) implies that there can
be no punishment for an act that was not a crime at the time that it was committed and thus calls
for defined penalties for crimes. In theory, this is not problematic; in practice, however, it has
caused some problems in how international criminal sentences have been approached.54 Article
24 of the ICTY Statute and Article 23 of that for the International Criminal Tribunal for Rwanda
(ICTR) attempt to address this issue by spelling out the framework within which punishment
may be prescribed:55

The penalty imposed by the Trial chamber shall be limited to imprisonment. In determining the
terms of imprisonment, the Trial chambers shall have recourse to the general practice regarding
prison sentences in their respective national courts. Article 23 of the ICC Statute also addresses
the principle when it states that ‘[a] person convicted by the court may be punished only in
accordance with this Statute’. Customary international law does not prevent the use of the death
penalty for international crimes, as affirmed by the Norwegian courts.56 This presents problems,
given the many international agreements that are aimed at abolishing the use of the death


The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and aggression
(which can be considered highly debatable considering the conundrum that the international
community seems to be caught up in when it comes to defining the concept of aggression),
which are commonly considered highly serious offences that concern the international

54 J Hall, Nulla Poena Sine Lege (1937) <available at:>
55 Shahram Dana, Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International
Criminal Law Sentencing, 99 J. OF CRIM. LAW & CRIMINOLOGY 857-928 <available at:>
56 Trial of Kriminalassistent Karl-Hans Herman Klinge (1946) 3 LRTWC 1 (SC of Norway) at p. 3
57 Guillaume Endo, Nullum Crimen Nulla Poena Sine Lege Principle and the ICTY and ICTR (2002) 15 PLC 205-
220 <available at:>

community.58 Unlike the Tribunals, the ICC has specifically defined the crimes under its
jurisdiction, which are listed in Articles 5 – 8 as well as in the 2002 Elements of Crimes. Article
22(2) stipulates that the definition of a crime requires strict construction, and that it should never
be extended by analogy, with the accused getting a favorable interpretation in instances of

By virtue of Article 13, the ICC can exercise jurisdiction through three different means
commonly referred to as ‘trigger mechanisms’:

(a) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with
Article 15.

A State that ratifies the Statute automatically accepts jurisdiction; under Article 124, a State can
make a reservation for seven years to reject jurisdiction. This provision seems to be in conflict
with Article 120, which provides that no reservations may be made to the Statute.60 These are
reservations whose purpose and contents, as well as duration in time, are predetermined by the
Treaty. The fact remains, however, that, on account of their object and scope, they cannot but be
regarded as reservations proper.61

The Court is able to hear cases only involving individuals over the age of 18 at the time of
commission of the crime of which they are accused62, while the principle of non-retroactivity is
also applied. Only crimes committed after 1 July 2002 (the date of entry into force of the Statute)

58 Article 5(1) of the Rome Statute
59 Article 22(2) of the Rome Statute
60 Ryan Goodman, Human Rights Treaties, Invalid Reservations, and State Consent, (2002) 96(3) AJIL 531-560
61 Antonio Cassese, International Criminal Law (Oxford University Press, 1999) at 146
62 Article 26 of the Rome Statute

are admissible63. Yet there is no statute of limitation imposed on the crimes over which the Court
can exercise jurisdiction.64

While international criminal law covers a wide range of crimes that are international in nature,
this chapter will be looking at the four crimes that have come to be regarded as the core
international crimes: aggression; crimes against humanity; war crimes; and genocide. It must be
noted, however, that these are not the only international crimes. Other international crimes
include piracy, terrorism, and drug trafficking. However, unlike the four crimes discussed in this
chapter, national laws and mechanisms as opposed to the international criminal law framework
deal with these other crimes more effectively.

a. Aggression

Aggression is one of the most controversial core crimes in international criminal law. Numerous
problems surround the actualization of the crime despite attempts, failed and realized, to include
provisions in international documents, treaties, and court jurisdictions. Arguably the biggest
concern is the lack of a definitive definition.

The crime of aggression has previously been known as the ‘crime against peace’. Attempts at the
prosecution of this crime date back to Nuremberg. At that time, ‘aggression’ was defined under
Article 6(a) of the Statute of the Nuremberg IMT (the Nuremberg Statute) as the “Planning,
preparation, initiation or waging of a war of aggression, or a war in violation of treaties,
agreements or assurances, or participation in a common plan or conspiracy for the
accomplishing of any of the foregoing.”

There were problems with Nuremberg, as well as the International Military Tribunal for the Far
East (IMTFE), known as the Tokyo War Crimes Tribunal or Tokyo IMT, trying the crime of
aggression. The Nuremberg IMT had previously declared the crime of aggression to be part of
customary law and proceeded on that basis, without a clear definition.65

The next attempt at a definition was made by the UN General Assembly in Article 1 of the 1974
United Nations General Assembly Resolution 3314 (XXIX): Aggression is the use of armed

63 Article 11 of the Rome Statute
64 Article 29 of the Rome Statute
65 Tokyo IMT Judgment No. 60-153, Transcript 48

force by a State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations, as set out in
this Definition. This defines aggression generally and does not define the crime of aggression in
the strictest terms.66 Given the UN Security Council’s power to determine acts of aggression
committed by States, the implication of the approach that has developed in terms of aggression
has made this area more of a political matter than a judicial one.67

The Statute’s approach to aggression is rather vague and unhelpful in addressing the definitional
gap, as its Article 5(2) reads that the Court “shall exercise jurisdiction over the crime of
aggression once a provision is adopted in accordance with Articles 121 and 123 defining the
crime and setting out the conditions under which the Court shall exercise jurisdiction with
respect to this crime. Such a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.”

b. Crimes Against Humanity

‘Crimes against humanity’ are not as clearly provided for in international law as genocide and
war crimes. This is a category of crime that has developed more recently and has been limited in
applicability as international criminal law emerged.

Crimes against humanity are offences against general principles of law which, in certain
circumstances, become the concern of the international community, namely, if it has
repercussions reaching across international frontiers, or if it passes ‘in magnitude or savagery
any limits of what is tolerable by modern civilizations.68

Most important to note is that crimes against humanity apply only to civilians and do not cover
combatants, acts against whom fall under other international crimes. It is important to note that
this definition is context-specific to a degree, since the requirement that the act occur ‘before or

66 Robert Cryer, Aggression at the Court of Appeal (2005) 10 (2) J. CONF. & SEC. L. 209, 224
67 M Cherif Bassiouni, Former Yugoslavia – Investigating Violations of International Humanitarian Law and
Establishing an International Criminal Tribunal <available at:>
68 Egon Schwelb, Crimes Against Humanity (1946) 23 BYBIL 178, 195

during the war’ limited its coverage by the Nuremberg IMT.69 However, this was the first
provision regarding the crime, at the time being hailed as a ‘revolution in ICL’.70 However,
despite this step in the right direction, there was felt a clear need to have a specialized
convention, since it was believed that other definitions of crimes against humanity did not
manage to encompass the entirety of it within their definitions.71

The next major contribution to the development of crimes against humanity occurred with the
establishment of the ICTY and ICTR. Both Statutes provided for the crime, listed inhumane acts,
and stipulated the situations under which these crimes could be committed, although each has a
different context for applicability. The ICTY may prosecute under Article 5 if the crime was
‘committed in armed conflict, whether international or internal in character, and directed against
any civilian population’, while the ICTR has jurisdiction under Article 3 over crimes that were
undertaken as part of a widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religious grounds.72 What is pertinent here is that ‘culture’
wasn’t considered appropriate classificatory grounds for the purposes of crimes against
humanity. However, the ICC Statute adopts a more modernized and clarified definition of crimes
against humanity, encompassing those perpetrations committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack.73
Although the elements to crimes against humanity are numerous, with each crime having its
own specific actus reus element, there are certain general elements that can be deemed to be
common to all of the crimes against humanity. It must be remembered that a full analytical
review of such elements would be something that is beyond the scope of this module, however,
the following sections will cover parts that are sufficient to establish a definite legal

69 The Nuremberg Statute dealt with crimes against humanity in Article 6(c), choosing to define it as murder,
extermination, enslavement, deportation, and other inhumane acts committed, against any civilian population,
before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country
where perpetrated.
70 Egon Schwelb, Crimes Against Humanity (1946) 23 BYBIL 178
71 M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention (1994) 31 COLUMBIA J
TRANSNATL LAW 457, at 494
72 Article 3, ICTR Statute
73 Darryl Robinson, Crimes Against Humanity, (1999) 93 AJIL 57

Element I – Nexus to Armed Conflict

As mentioned earlier, the ICTY Statute requires linkage between the crime and an armed
conflict. However, it needs to be emphasized that there is no customary law basis for this
requirement. However, the ICTY Tribunals have opined on this matter, stating obiter that it is a
settled rule of customary international law that crimes against humanity do not require a
connection to international armed conflict. Indeed, as the Prosecutor points out, customary
international law may not require a connection between crimes against humanity and any conflict
at all. Thus, by requiring that crimes against humanity be committed in either internal or
international armed conflict, the Security Council may have defined the crime in Article 5 more
narrowly than necessary under international law.74 Hence, since the judgment at Nuremberg, the
concept has taken on a certain autonomy as there is no longer any need to determine a link with a
crime against the peace or a war crime.75

Element II – Discrimination

The ICTR discriminatory clause contained in Article 3 did not follow most of the precedents and
authorities at the time. In addition, the ICTY, in Tadić, held that the discrimination requirement
was not applicable to crimes against humanity, stating “ordinary meaning of Article 5 makes it
clear that this provision does not require all crimes against humanity to have been perpetrated
with a discriminatory intent. Such intent is only made necessary for one sub-category of those
crimes, namely ‘persecutions’ provided for in Article 5 (h)”.76 It seems from the case law and
practice that the requirement of discrimination is applicable only to the ICTR, based on Article 3
of the ICTR Statute.77 It is apparent that the aim of those drafting the Statute was to make all
crimes against humanity punishable, including those which, while fulfilling all the conditions
required by the notion of such crimes, may not have been perpetrated on political, racial or
religious grounds as specified in paragraph (h) of Article 5.78

74 Prosecutor v. Tadic, Decision on Jurisdiction, IT-94-1-AR72, ICTY Appeals Chamber (2 Oct. 1995)

75 Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61, IT-94-2-R61, ICTY Trial Chamber (20 Oct.


76 Prosecutor v. Tadic, IT-94-1-AR72, ICTY Appeals Chamber (15 July 1999)

77 Fausto Pocar, The International Criminal Tribunal for Rwanda, in THE MAX PLANCK ENCYCLOPEDIA OF PUBLIC

INTERNATIONAL LAW (MPEPIL) (Oxford University Press) <available at:>

78 Prosecutor v. Tadic, IT-94-1-AR72, ICTY Appeals Chamber (15 July 1999)

Element III – Civilian Population

The use of the term ‘any civilian population’ follows the rationale of crimes against humanity—

to protect civilians regardless of nationality or affiliation to victims. The case law seems to
suggest that the inclusion of the word ‘any’ makes it clear that crimes against humanity can be

committed against civilians of the same nationality as the perpetrator or those who are stateless,
as well as those of a different nationality.79 The term ‘civilian population’ on the other hand

seems to include, as suggested by the Commentary to the two Additional Protocols of 1977 to

the Geneva Conventions of 1949, all persons who are civilians as opposed to members of the
armed forces and other legitimate combatants.80 The phrase can include a certain element of non-

civilians since it was held that the targeted population must be of a predominantly civilian
nature.81 Additionally, the presence of certain non-civilians in its midst does not change the
character of the population.82 In Kordic, it was also ascertained that that individuals who at one

time performed acts of resistance might in certain circumstances be victims of a crime against
humanity.83 The concept of population is interpreted such that there is a need for more than one
individual to be targeted. Thus there is a collective notion behind the use of population.84 The
Trial Chamber in the Martic case noted that one could not allow the term ‘civilian’ for the

purposes of a crime against humanity to include all persons who were not actively participating

in combat, including those who were hors de combat, at the time of the crimes, as this would blur
the necessary distinction between combatants and non-combatants.85

The Tadic Trials Chamber also held that “the requirement in Article 5 of the Statute that the
prohibited acts must be directed against a civilian ‘population’ does not mean that the entire

population of a given State or territory must be victimised by these acts in order for the acts to
constitute a crime against humanity. Instead, the ‘population’ element is intended to imply

crimes of a collective nature and thus exclude single or isolated acts which, although possibly

constituting war crimes or crimes against national penal legislation, do not rise to the level of

crimes against humanity...Thus the emphasis is not on the individual victim but rather on the

79 Prosecutor v. Tadic, IT-94-1-T, ICTY Trials Chamber (7 May 1997)
80 Prosecutor v Kunarac, IT-96-23, ICTY Trial Chamber (22 Feb. 2001) at ¶425
81 Prosecutor v Kunarac, IT-96-23, ICTY Trial Chamber (22 Feb. 2001) at ¶426
82 Prosecutor v Kordic, IT-95-14, ICTY Trial Chamber (26 Feb 2001) at ¶180
83 Ibid
84 Prosecutor v. Tadic, IT-94-1-T, ICTY Trials Chamber (7 May 1997) at ¶644
85 Prosecutor v. Martic, IT-95-11-T, ICTY Trial Chamber at ¶¶55-56

collective, the individual being victimised not because of his individual attributes but rather
because of his membership of a targeted civilian population.”86
Element IV – Widespread or Systematic

Widespread or systematic comprises two distinct elements, because it is regarded as being
disjunctive rather than conjunctive. In Akayesu, It was said that ‘the act can be part of a
widespread or systematic attack and need not be a part of both’. They also went on to ascribe
definitions to both these concepts, stating that the concept of ‘widespread’ may be defined as
massive, frequent, large scale action, carried out collectively with considerable seriousness and
directed against a multiplicity of victims. The concept of ‘systematic’ on the other hand was
defined as thoroughly organized and following a regular pattern on the basis of a common policy
involving substantial public or private resources. There is no requirement that this policy must be
adopted formally as the policy of a state. There must however be some kind of preconceived plan
or policy. In Blaskic, the ICTY Trial Chamber defined ‘systematic’ in terms of ‘the existence of
a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the
broad sense of the word, that is, to destroy, persecute or weaken a community; the perpetration
of a criminal act on a very large scale against a group of civilians or the repeated and
continuous commission of inhumane acts linked to one another; the preparation and use of
significant public or private resources, whether military or other, and the implication of high-
level political and/or military authorities in the definition and establishment of the methodical
plan. The plan, however, need not necessarily be declared expressly or even stated clearly and
precisely. It may be surmised from the occurrence of a series of events.’87 However, this standard
has been touted as being too stringent to be met, with the Tribunal itself adopting a lower
threshold in Kunarac.88

86 Prosecutor v. Tadic, IT-94-1-T, ICTY Trials Chamber (7 May 1997) at ¶647
87 Prosecutor v Blaskic, IT-95-14-T, ICTY Trial Chamber, at
88 Prosecutor v Kunarac, IT-96-23, ICTY Trial Chamber (22 Feb. 2001) at ¶428

Element V – Policy Requirement

The policy requirement has been interpreted quite loosely. In Kunarac, the ICTY Appeals
Chamber held that while proof that the attack was directed against a civilian population and
proof that it was widespread or systematic were legal elements of the crime, it was not necessary
to show that they were the result of the existence of a policy or plan. The existence of a policy or
plan could be evidentially relevant, but it was not a legal element of the crime.

Although they need not be related to a policy established at a State level, in the conventional
sense of the term, they cannot be the work of isolated individuals alone.89 Although the act need
not be committed at the same time and place as the attack or share all of the features of the
attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the
discriminatory attack.90 The distinctive element seems to be the fact that the attacks cannot be
‘random’ in their targeting to qualify as a crime against humanity.91

Element VI – Mens Rea

A person can be found guilty of a crime against humanity only in circumstances in which they
were aware of the context in which their conduct took place. The acts of the accused must
comprise part of a pattern of widespread or systematic crimes directed against a civilian
population and that the accused must have known that his acts fit into such a pattern.92 However,
the accused need not necessarily share the purpose or goals behind the broader attack. There is
no requirement that the enumerated acts other than persecution be committed with discriminatory
intent.93 It should be pointed out that the purpose of the attack by the accused does not need to
have the same aim as the general attack; all that is required is knowledge of the context.94 Thus
to convict an accused of crimes against humanity, it must be proved that the crimes were related
to the attack on a civilian population (occurring during an armed conflict) and that the accused
knew that his crimes were so related. This is a vital element of what distinguishes a crime against

89 Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61, IT-94-2-R61, ICTY Trial Chamber (20 Oct.
90 Prosecutor v. Semanza, ICTR-97-20-T, ICTR Trial Chamber (15 May 2003)
91 Prosecutor v Blaskic, IT-95-14-A, ICTY Appeals Chamber (29 Jul. 2004) at ¶101
92 Prosecutor v. Tadic, IT-94-1-AR72, Appeals Chamber (15 July 1999) at ¶248
93 Prosecutor v. Semanza, ICTR-97-20-T, ICTR Trial Chamber (15 May 2003) at ¶322
94 William Schabas, State Policy as an Element of International Crimes, (2008) 98 J OF CRIM. LAW & CRIMINOLOGY
953, at 967

humanity from a general criminal act.95 Indeed, to convict a person of this most serious
international crime, if the person was truly unaware of this essential and central element, would
violate the principle actus non facit reum nisi mens sit rea.96

One of the most important developments of the ICC is the clear and concise manner in which the
term ‘crimes against humanity’ is laid out in the ICC Statute, Article 7 of which states that there
needs to be an act ‘committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack’. From the wording of the ICC Statute, it is
clear that there is no need for an act to be linked to an armed conflict. Further, the Statute makes
no reference to the issue of discrimination.

Many of the same acts may constitute both war crimes and crimes against humanity, but what is
distinctive about the latter is that they do not need to take place during an armed conflict.
However, to constitute crimes against humanity the acts in question have to be committed as part
of a widespread or systematic activity, and to be committed against any civilian population, thus
any reference to nationality is irrelevant. However, it is important to maintain a clear distinction
between civilian and non-civilian in this context.

c. Genocide

There is no single definition of genocide, but several instruments have been adopted to help to
define the crime. In UN General Assembly Resolution 96(1), ‘genocide’ is characterized as ‘[a]
denial of the right of existence of entire human groups, as homicide is the denial of the right to
live of individual human beings’. Under the Genocide Convention, however, genocide has been
defined as “any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;

95Darryl Robinson, Crimes Against Humanity, (1999) 93 AJIL at 52
96 Ibid

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group...”97

However, genocide has been earmarked as one of the most serious offences singled out for
special condemnation and opprobrium98, considering the ramifications of such a crime, with
some tribunals even referring to it as the ‘crime of crimes’.99 Of course, any act of genocide by
definition will constitute also a crime against humanity, although the reverse is clearly not the
case, owing to the historical inter-linkage between the two crimes.100 However, the drafters of
the Genocide Convention did not wish to limit the potential scope of the crime of genocide by
identifying it with crimes against humanity and the corresponding requirement of a war nexus,
and it certainly seems that genocide has since taken on a theoretical life of its own.101 The crime
of genocide is unique because of its element of dolus specialis (special intent) which requires
that the crime be committed with the intent ‘to destroy in whole or in part, a national ethnic,
racial or religious group as such.102 However, pre-mediation is not a legal ingredient of the crime
of genocide, since the possibility of a lone individual seeking to destroy a group is not eliminated
through the definition.103

Within the definition provided by the Genocide Convention, ICTY and ICTR Statutes, and the
ICC Statute, the act of ‘genocide’ is committed against an exhaustive list of protected groups,
limited to ‘national, ethnical, racial or religious groups’.

The ICTR ruled out the possibility of extending the category of protected groups in Akayesu,
holding that it deliberated the question of whether it “should be limited to only the four groups
expressly mentioned and whether they should not also include any group which is stable and
permanent like the said four groups”. The Chamber deemed it particularly important to respect

97 Article 2, The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide
98 Prosecutor v. Krstic, IT-98-33-A, ICTY Trial Chamber (19 Apr 2004) at ¶36
99 Prosecutor v. Kambanda, ICTR-97-23-S, ICTR Trial Chamber (4 Sept. 1998) at ¶16
100 Re Altstotter & Others, (1947) 14 ANNUAL DIGEST 278; Prosecutor v Kayishema and Ruzindana, ICTR-95-I-T,
ICTR Trial Chamber (21 May 1999) at ¶89
101 Nina Jorgense, The Definition of Genocide: Joining the Dots in the Light of Recent Practice (2000) 1 INT CRIM L
REV 285 at 287-88
102 Prosecutor v. Kambanda, ICTR-97-23-S, ICTR Trial Chamber (4 Sept 1998) at ¶16
103 Prosecutor v. Jelsic, IT-95-01-T, ICTY Trial Chamber (14 Dec. 1999) at ¶100

the intention of the drafters of the Genocide Convention, which according to the travaux
préparatoires, was patently to ensure the protection of any stable and permanent group.104

Whose opinion counts when considering whether the victims are part of a particular protected
group? It seems that the opinion of the perpetrator of the crimes can be accepted, as well as that
of others. This arguably makes the classification of these groups excessively broad, because self-
identification is possible, which may be different from the perpetrators’ intention. Both self-
identification and identification by others were deemed to be appropriate criteria for ascertaining
this aspect.105 Although, this does come with a qualifier, since the court interpreted from a
reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as
political and economic groups, have been excluded from the protected groups, because they are
considered to be ‘mobile groups’ which one joins through individual, political commitment. That
would seem to suggest a contrario that the Convention was presumably intended to cover
relatively stable and permanent groups.106

The first element of the crime of genocide, is ‘killing’. This element requires the death of
another, and even causing the death of one member of a protected group suffices to meet this
requirement.107 Genocide is not actually limited to death, because other acts can also result in
genocide. The Eichmann case provides particular clarity on this, as it states that the concept of
genocide is much broader than mere killing, and includes acts of “enslavement, starvation,
deportation and persecution of people...and by the detention in ghettos, transit camps and
concentration camps in conditions which were designed to cause their degradation, deprivation
of their rights as human beings and to suppress them and cause them inhumane suffering and
torture.”108 The ICTR further extended this notion to include sexual violence and rape, which
was , adopted by the 2002 ICC Elements of Crimes and Rules of Procedure. However, there is no
requirement that this harm, as well as any mental harm, needs to be permanent.109

A difference between Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part and the other elements provided for is the

104 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber (2 Sept. 1998)
105 Prosecutor v. Kayishema, ICTR-95-I-T, ICTR Trial Chamber (21 May 1999) at ¶98
106 Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber (6 Dec. 1999) ¶56
107 Claus Kreß, The crime of genocide under international law (2006) 6 INT CRIM L REV 461, 480, ‘
108 Attorney General of Jerusalem v. Eichmann (1968) 36 ILR 5 (DC) 340
109 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber (2 Sept. 1998) at ¶731

requirement that the ‘conduct must be extended beyond one member of the protected group’110
The expression deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part, should be construed as the methods of destruction by
which the perpetrator does not immediately kill the members of the group, but which, ultimately,
seek their physical destruction.111 It does not suffice to deport a group or a part of a group. A
clear distinction must be drawn between physical destruction and mere dissolution of a group.
The expulsion of a group or part of a group does not in itself suffice for genocide.112

Furthermore, the measures intended to prevent births within the group, should be construed as
sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and
prohibition of marriages. In patriarchal societies, where membership of a group is determined by
the identity of the father, an example of a measure intended to prevent births within a group is
the case where, during rape, a woman of the said group is deliberately impregnated by a man of
another group, with the intent to have her give birth to a child who will consequently not belong
to its mother’s group.113

One should not confuse this element of the crime of genocide with the forced impregnation
crime, which is used to change the ethnic composition of a particular group (as included in
Article 7(2)(f) of the ICC Statute), since it is conceptually different from forced impregnation
intended to affect the ethnic composition of a group.114

The specific crime of ‘forcibly transferring children of the group to another group’ within
Genocide is often considered as being similar to cultural genocide. However, the Genocide
Convention does not explicitly mention cultural genocide and the ICTY has held that cultural
genocide is not part of customary international law.115 The ICC Elements of Crime 2002 state
that “the term ‘forcibly’ is not restricted to physical force, but may include threat of force or
coercion, such as that caused by fear of violence, duress, detention, psychological oppression or
abuse of power, against such person or persons or another person, or by taking advantage of a
coercive environment.”

110 Claus Kreß, The crime of genocide under international law (2006) 6 INT CRIM L REV 461, 481
111 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber (2 Sept. 1998) at ¶505
112 Prosecutor v. Stakic, IT-97-24-T, ICTY Trial Chamber (31 Jul 2003) at ¶519
113 Prosecutor v. Stakic, IT-97-24-T, ICTY Trial Chamber (31 Jul 2003) at ¶507
114 Payam Akhavan, The Crime of Genocide in the ICTR Jurisprudence (2005) 3 JICJ 989 at 1005
115 Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber (2 Aug 2001) at ¶580

There is also the requirement of contextuality of the act, and the ICC has taken a different stance
from that of the tribunal jurisprudence. Unlike in Jelsić, which provides that a single act of an
individual may fall under the scope of genocide, the ICC is much more restrictive, requiring,
under Article 6(a)(4) of the ICC Elements of Crimes, that: “the conduct took place in the context
of a manifest pattern of similar conduct directed against that group or was conduct that could
itself effect such destruction.”116

An important observation to make regarding genocide and the other core crimes is that rank or
position in society has no effect on the individual guilt of a person, provided that they have the
necessary intent.117 It is pertinent to remember that genocide is distinct from other crimes
inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the

specific intention, required as a constitutive element of the crime, which demands that the
perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of
genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such’.118 In order to establish whether there is this specific intent to destroy a particular

group, one can deduce from circumstantial evidence that the intention existed. This is most often
the case, because it is generally difficult to prove from direct evidence that there was such an
intention.119 Furthermore, as the ICTR has established, in cases in which an individual should
have been aware of a situation, intent can be deduced.120 The ICTR has also opined that for the

crime of genocide to occur, the mens rea must be formed prior to the commission of the
genocidal acts. The individual acts themselves, however, do not require premeditation; the only
consideration is that the act should be done in furtherance of the genocidal intent,121 along with a
clear distinction between collective and individual intent of the crime.122

Through inclusion of ‘in part’ in the definition, the intention does not need to be the complete
destruction or elimination of the particular group. This can be seen through the historical

116 Also see: Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber (2 Aug 2001) at ¶224
118 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber (2 Sept. 1998) at ¶498
119 Paul Behrens, Assessment of International Criminal Evidence: The Case of the Unpredictable Genocidaire
<available at:>
120 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber (2 Sept. 1998) at ¶730
121 Prosecutor v. Kayishema, ICTR-95-I-T, ICTR Trial Chamber (21 May 1999) at ¶91
122 Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber (2 Aug 2001) at ¶549

example of the Nazi regime’s attempt to destroy the Jewish population in Europe, as opposed to
the world, as well as the attempt, in Rwanda alone, to destroy the Tutsis.123 There is also
evidence that the number of people who are destroyed, or whom attempts are made to destroy,
should make up a substantial part of that group.124

d. War Crimes

War crimes are the violations of the laws and customs of war, otherwise known as ‘international
humanitarian law’125. War crimes have come under the jurisdiction of all modern attempts at
international justice, including the Nuremberg and Tokyo IMTs, the ICTY and ICTR, the SCSL,
and the ICC, as well as domestic trials. It is important to note that war crimes in international law
are broader than those in the Tribunals’ jurisprudence, because not all of the crimes were
included in their jurisdiction. War crimes are governed both by treaties regulating international
humanitarian law and customary international law.

Each tribunal has been granted jurisdiction over a limited set of war crimes: under Article 3 of
the ICTY Statute specifically, and under Article 2 through the notion of grave breaches of the
1949 Geneva Conventions; under Article 4 of the ICTR Statute through violations of Common
Article 3 of the Geneva Conventions and Additional Protocol II; and under Article 8 of the ICC
Statute.126 Traditionally, conflicts were considered only to occur between States, thus the natural
consequence of this was that war crimes did not apply to internal conflicts. However, when the
Geneva Conventions were being drafted, consideration was taken of the regulation of internal
conflicts, despite these being considered an internal affair of the State. This resulted in Common
Article 3, which applies to internal armed conflicts as well. Additional Protocol II expanded the
protection—but this applies only to signatory States and does not cover all violations of
international humanitarian law.127

123 Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber (2 Aug 2001) at ¶23
124 Ibid, at 12
125 Please refer to the Chapter on IHL within the module
126 Knut Dormann, War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus
on the Negotiations on the Elements of Crimes <available at:>
127 David A Elder, The Historical Background of Common Article 3 of the Geneva Convention of 1949 (1979) 11(1)
CASE WESTERN RESERVE J OF INTL LAW 37-71 <available at:>

The ICC has also incorporated war crimes for internal armed conflicts in Article 8 of its Statute,

but the list of acts that constitute war crimes is more limited than the case law of the ICTY and

ICTR. Examples of war crimes, as adjudicated by the tribunals and the ICC include: (i) crimes

against non-combatants; (ii) attacks on prohibited targets; (iii) attacks that inflict excessive

civilian damage; (iv) attacks against property; (v) prohibited means and methods of warfare; and
(vi) war crimes that attack other values—such as the drafting of child soldiers and transferring

populations into occupied territory. For a war crime to be committed, there must be armed
conflict.128 What constitutes ‘armed conflict’ is a question of fact often left to the determination
of tribunals; the official position taken by warring States is of less weight.129

There has been some indication that a level of intensity is required as opposed to a mere generic

resort to force. Also, conflict may exist even if there is no resistance by an occupied State (see

Article 2 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field—that is, the First Geneva Convention).130 For internal

armed conflicts, there is a threshold of intensity that must be met. This is important in

distinguishing between disturbances and riots, which are not governed under international

humanitarian law. In reality, it is always difficult to make this distinction and judicial attitude has
been incoherent.131 Additional Protocol II includes the requirement that one of the parties must
be a government, unlike the ICC (Article 8(2)(f) of the ICC Statute) and the ICTY (Tadić), both
of which recognize conflicts between armed groups. The ICC Statute refers to ‘protracted armed
conflict’, unlike the ICTY’s preference of ‘violence’.132 However, when the French text of the

ICC Statute is taken into consideration, it can be seen that the intention was to follow the
established jurisprudence and to use ‘protracted armed violence’.133

128 Knut Dormann, War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus
on the Negotiations on the Elements of Crimes <available at:>
129 Knut Dormann, War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus
on the Negotiations on the Elements of Crimes <available at:>
130 Ibid
131 David A Elder, The Historical Background of Common Article 3 of the Geneva Convention of 1949 (1979) 11(1)
CASE WESTERN RESERVE J OF INTL LAW 37-71 <available at:>
132 Leila N Sadat, Putting Peacetime First: Crimes Against Humanity and the Civilian Population Requirement
<available at:>
133 Ibid

For a particular crime to be considered a war crime, there needs to be a link between the criminal
act and the conflict. There is a specific logic behind this, which is expounded on in the Semanza

judgment of the ICTR. It was decided that this requirement is best understood upon appreciation

of the purpose of Common Article 3 and Additional Protocol II. The purpose of the said
provisions is the protection of people as victims of internal armed conflicts, not the protection of
people against crimes unrelated to the conflict, however reprehensible such crimes may be.134

Crimes that occur during an armed conflict, but which are unrelated to the crime—such as killing
an individual for reasons unrelated to the conflict—are not war crimes.135 The requirement of the
conflict playing a ‘substantial part’ in the act, the ‘decision to commit it, the manner’ in which it
was committed, and the ‘purpose’ of committing it are critical. However, nexus between conflict
and crime does not mean geographical nexus.136

The ICC Elements of Crime require that the accused have knowledge of the conflict, by
requiring, at Article 8(2)(a)(i), element 5, that ‘The perpetrator was aware of factual
circumstances that established the existence of an armed conflict.137

Certain international treaties protect certain groups of people from war crimes (see Articles 4 and

147 of the 1949 Geneva Convention (IV), Article 8(2)(a) of the ICC Statute, and Article 2 of the
ICTY Statute) along with Common Article 3 of the Geneva Conventions.138 However, in

Naletilic and Martinovic, the ICTY adopted a more expansive approach to this, stating
“Common Article 3 imposes that victims be persons taking no active part in the hostilities. In
view of the jurisprudence, this test extends to ‘any individual not taking part in hostilities’, and is

therefore broader than that envisioned by Geneva Convention IV, under which the status of
‘protected person’ is only accorded in defined circumstances.”139

The criterion of ‘policy or large-scale commission’ is not a usual requirement for war crimes.
Unlike crimes against humanity, a war crime can be an isolated act. The reasoning for this

134 Shane Darcy, Prosecuting the War Crime of Collective Punishment: Is it Time to Amend the Rome Statute?
135 Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict,
and the Limits of Progressive Jurisprudence (2008) 6(1) JICJ 21-37
136 Prosecutor v. Kunarac, IT-96-23-1A, ICTY Appeals Chamber (12 Jun 2002)
137 Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict,
and the Limits of Progressive Jurisprudence (2008) 6(1) JICJ 21-37
138 Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict,
and the Limits of Progressive Jurisprudence (2008) 6(1) JICJ 21-37
139 Prosecutor v. Nalettic and Martinovic, IT-98-34-T, ICTY Trial Chamber (31 Mar 2003) at ¶229

inclusion in the ICC Statute may be due to the intended nature of the ICC, which is to deal with
the highest level of individual responsibility, and also the ICC being a court of last resort.
Arguably, the inclusion of ‘in particular’ denotes the recommendatory nature of the


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