Abstract
The notion of “crimes under international law” implies that the conduct in question is criminalized for the protection of international legal interests. With respect to “crimes under international law in the strict sense,” or “core crimes,” international law directly inflicts criminal responsibility, and prosecution may be conducted at the international level. Although international conventional law obligates states to prosecute other crimes under international law, such prosecution can be carried out only through national legal orders. These crimes are named “crimes under international law in the broad sense.” The judicial activities of various international criminal courts since the 1990s gave rise to the complex structures of international criminal law. Especially in the aspect of substantive law, general principles of criminal responsibility that are applicable to the regulation of core crimes have considerably been diversified, depending on the modes of enforcement.
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Notes
- 1.
These crimes are also called “treaty crimes”. See Ambos (2014), pp. 222–228; Milanović (2011), p. 28; Cryer (2005), p. 3. Otherwise, they are called “transnational crimes” where criminal activities in question “have actual or potential trans-boundary effects” (Boister 2018, p. 17). The term “crimes under international law” is not used in a unified manner among commentators. For instance, Werle defines, “[c]rimes under international law are any crimes that involve individual responsibility directly under international law” (Werle and Jessberger 2020, p. 35). O’Keefe also suggests that the term, “crimes under international law” or “crimes against international law,” be reserved for those giving rise to individual criminal responsibility under international law (O’Keefe 2015, p. 61). On the other hand, the term “crimes under international law” as including serious international crimes other than those directly entailing international criminal responsibility is commonly used in the United Nations General Assembly. See Clark (1988), pp. 50–51.
- 2.
Weil (1983), pp. 413–442.
- 3.
- 4.
Ambos argues on “a supranational ius puniendi” from the “collective-individualistic” perspective. “[F]rom the collective perspective, a supranational punitive power is necessary and justified for the defence of the normative (value-based) international order where community interests prevail over unilateral or bilateral state interests. … From the individualistic perspective I argue that there exists a world society composed of world citizens whose law—the ‘world citizen law’ (‘Weltbürgerrecht’)—is derived from universal, indivisible, and interculturally recognized human rights based upon a Kantian concept of human dignity, that is, as something intrinsic, deontological, and non-negotiable (replaceable) to the human existence, as an end in itself, as the basis of the individuality and the mutual recognition (interpersonal relationship) of the members of a society” (Ambos 2013, p. 58). Thus, the prosecution and punishment of serious human rights violations under international criminal law “cannot, by definition, depend on state consent” (ibid., p. 60).
- 5.
- 6.
- 7.
- 8.
See Sect. 6.2.6.1 of Part II. Strictly speaking, the obligation to prosecute under the four Geneva Conventions is conditional and defers to the principle of aut dedere aut judicare.
- 9.
See Heller (2017), pp. 366–368.
- 10.
Regarding this point, Bassiouni cautions that “the rhetoric of universality may turn out to be a cloak for hegemonic tendencies by states with the power to decide what is and what is not a universal interest binding on all states” (Bassiouni 2008a, p. 30).
- 11.
See Sect. 5.2 of Part II.
- 12.
Werle and Jessberger (2020), pp. 37, 65–67.
- 13.
Cassese et al. (2013), pp. 20–21.
- 14.
See for details, Bassiouni (2008b), p. 122.
- 15.
Article 1, Draft Code of Crimes Against the Peace and Security of Mankind, Yearbook of the International Law Commission, 1996, Vol. II, Part Two [hereinafter Draft Code of Crimes], p. 17.
- 16.
Article 19, ibid., pp. 50–53.
- 17.
As to the problem of defining terrorism in international law, see Sect. 5.2.2 of Part II.
- 18.
As Schabas states, “[r]ecognition of universal jurisdiction for these crimes [piracy, slave trade, and traffic in children and women] was largely predicated on the ground that they were often committed in terra nullius, where no State could exercise territorial jurisdiction” (Schabas 2011, p. 64).
- 19.
Article 21 of the Convention stipulates as follows: “The Signatory Powers likewise undertake to enact or to propose to their legislatures, if their criminal laws are inadequate, the measures necessary for checking in time of war individual acts of pillage and ill-treatment in respect to the sick and wounded in the fleet, as well as for punishing, as an unjustifiable adoption of naval or military marks, the unauthorized use of the distinctive marks mentioned in Article 5 by vessels not protected by the present Convention.”
- 20.
Article 29 of the Convention stipulates as follows: “The Governments of the High Contracting Parties shall also propose to their legislatures should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the present Convention.” This provision succeeded Article 28 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1906.
- 21.
- 22.
For instance, Colby (1923–1924), pp. 44–46.
- 23.
Report of Robert Jackson, United States Representative to the International Conference on Military Trials: London, 1945 (Washington: GPO, 1949) [hereinafter Jackson Report], p. ix.
- 24.
Ibid.
- 25.
See Sect. 3.1 of Part I.
- 26.
See Sect. 6.2.6.1 of Part II.
- 27.
The ICTY and ICTR both closed in the 2010s and their essential functions have subsequently been carried out by the International Residual Mechanism for Criminal Tribunals (IRMCT) as a “small, temporary and efficient structure” (U.N. Doc., S/RES/2256 (2015), para. 16).
- 28.
Pangalangan (2016), pp. 972–974.
- 29.
Especially, as many states insisted to apply extradition laws with regard to the surrender of alleged perpetrators (Gupta 2000, pp. 10–11), it can be said that conditions for extradition such as double criminality did actually matter. See Sect. 6.3.1 of Part II for details on extradition procedures.
- 30.
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc., S/25704, para. 34. The same kind of discussion is also indicated in Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, IT-01-47-AR72, 16 July 2003 (Appeals Chamber), para. 51. The ICTY states elsewhere that it is not precluded, from the viewpoint of the principle of legality, to apply conventions that concerned states had ratified (Judgment, Dario Kordić & Mario Čerkez, IT-95-14/2-A, 17 December 2004 [hereinafter Kordić & Čerkez (AC)], paras 41–44; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Duško Tadić a/k/a “Dule,” IT-94-1-AR72, 2 October 1995 (Appeals Chamber) [hereinafter Tadić, Decision on the Defence Motion], para. 143). However, in light of the fact that UN member states were obligated to cooperate with the ad hoc international criminal tribunals, such an extension of the material jurisdiction of the tribunals was questionable.
- 31.
Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), U.N. Doc., S/1995/134 (13 February 1995), para. 12.
- 32.
Judgment, Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, 2 September 1998 [hereinafter Akayesu], paras 604–605, 611–617. With respect to the discussion on the material jurisdiction of the ICTR, see also Mettraux (2005), pp. 10–12.
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Sato, H. (2021). Introduction. In: Multilayered Structures of International Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-030-83845-4_1
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