International Criminal Law
International criminal law (ICL) combines elements of Public International Law – predominantly international humanitarian law (IHL), with some human rights law and refugee law – with domestic criminal law to determine the scope of international crimes and the jurisdiction to prosecute. Those crimes generally encompassed by international criminal law are war crimes and crimes against humanity.
ICL encompasses those offenses against international customary rules (as well as those rules codified in treaty form, reflective of customary rules) intended to protect values of the international community. The earliest crimes within ICL were war crimes, with the codification of IHL in the 19th century. These categories of crime, when conducted during the course of an international armed conflict, occur beyond the boundaries of a State and are truly international in nature. It was not until the mid-20th century that the concepts of crimes against humanity and crimes of genocide formally materialized.
ICL is predominantly exercised through ad hoc tribunals established in the wake of armed conflict and the permanent International Criminal Court (ICC). Each judicial system’s mandate delineates its jurisdiction relating to the types of crimes to be heard, the time frame to be covered, and the individuals eligible to be brought before the court. Ad hoc tribunals include the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague, and the International Criminal Tribunal for Rwanda (ICTR) in Arusha. These are not permanent structures and deal only with those crimes committed over the course of their respective conflicts. The ICC, on the other hand, is a permanent court created to hear cases from any conflict brought before it by its member states or on recommendation of the UN Security Council.
A delicate balance must be struck between humanitarian action and the exercise of international criminal jurisdiction. Humanitarian actors must be perceived as neutral parties, especially in a non-international armed conflict as the government determines whether to grant permission for an organization’s assistance and access. In 2009, the ICC issued an arrest warrant for Omar Al-Bashir, then-president of Sudan, on charges of war crimes and crimes against humanity. Sudan summarily expelled ten humanitarian organizations from the country, in protest of the court’s warrant. The government claimed that the organizations were cooperating with the court and attempting to politically destabilize the country. The incident stresses the importance of the perceived neutrality of humanitarian actors.
There is no universally agreed upon definition of war crimes; however, it is agreed that they must be conducted during the course of an armed conflict. Generally speaking, war crimes are violations of the laws and customs of war that give rise to individual criminal responsibility. Types of war crimes can be found in the Geneva Conventions and the Rome Statute of the International Criminal Court. In an international armed conflict, articles 11 and 85 of Additional Protocol I state what actions are considered grave breaches against persons or property protected by the Geneva Conventions. In a non-international armed conflict, war crimes consist of violations of customary IHL and of the 4 prohibited acts outlined in common article 3 of the Geneva Conventions.
For those individuals before the ICC, the Rome Statute expands upon what is considered a war crime; it lists 26 serious violations of conduct in an international armed conflict and 12 serious violations of conduct in a non-international armed conflict. The Rome Statute rules for non-international armed conflict include prohibitions on activity such as the military conscription of children under the age of 15, and the performance of medical and scientific experiments on persons in the power of another party. Whereas common article 3 is limited to the following acts: violence to life and person, mutilation, cruel treatment and torture; hostage taking; outrages upon personal dignity; and extrajudicial or arbitrary passing of sentences and execution.
Crimes against Humanity
Although they are similar to war crimes in typology, crimes against humanity differ in scope. These crimes may be committed outside of an armed conflict, during times of relative peace. The actions must constitute an attack on human dignity such as murder; extermination; torture; rape; political, racial, or religious persecution and be committed as part of a widespread or systematic practice of atrocities against the population. Syrian President Bashar al-Assad has been accused of crimes against humanity for his suppression of the civilian population in the months prior to the 2012-armed conflict. Those same actions constituting crimes against humanity are classified as war crimes if conducted after the situation had been recognized as an armed conflict.
The crime of genocide is universally defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It is defined in both the convention and in customary law as the “intent to destroy, in whole or part, a national, ethnical, racial or religious group”.1 Unlike other international crimes, genocide requires a particular state of mind and intention in addition to the act for it to be prosecuted. It includes not only killing members of the group, but also causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.2 It is important to note that genocide is not limited to destruction of an entire class (in whole); it includes destruction of an entire class in a particular area (in part). The 1995 massacre at Srebrenica targeted all Bosniak men in the town. Although focused on one particular area and not the wider Bosniak population, both the International Court of Justice and the ICTY consider the massacre genocide.
Crime of Aggression
The crime of aggression was first conceptualized for the 1945-46 Nuremburg Trials but, as a result of the Kampala amendments to the Rome Statute in 2010, only gained inclusion in the ICC’s jurisdiction recently. The crime of aggression was ignored through the latter half of the 20th century, in part due to its overlap with already well-established laws. Under the UN Charter, States may only intervene in other States when authorized with UN Security Council consent under Chapter VII, or when acting in self-defense. The ICC’s definition of the crime of aggression does not stray far from the 1945 definition and complements the UN Charter regulations. It is the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.3 Acts of aggression include the invasion of another State as well as the orchestration of such an invasion to be carried out by others. Liechtenstein, in May 2012, was the first Member State to ratify the amendment. As of August 2012, it remains the only State to ratify.
1Convention on the Prevention and Prosecution of the Crime of Genocide, 1948
2Convention on the Prevention and Prosecution of the Crime of Genocide, 1948
3Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Article 8 bis, 11 June 2010.