This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).
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13. International criminal law
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24. International Criminal Law
Robert Cryer
This chapter examines the material and mental aspects of four offences that are directly criminalized by international law: genocide, crimes against humanity, war crimes, and aggression. The discussions also cover some of the general principles of liability and defences that are of particular relevance to international crimes. Firstly, joint criminal enterprise, co-perpetration, command responsibility, and the defence of obedience to superior orders are considered. The chapter then looks at international and national prosecution of international crimes, including the Nuremberg and Tokyo Trials, the International Criminal Tribunals for former Yugoslavia and Rwanda, and the International Criminal Court. As prosecution is not the only, or predominant, response to international crimes, the chapter concludes with a discussion of alternatives and complements to prosecution, such as amnesties, and truth and reconciliation commissions.
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7. Torture and aggression
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses two classes of international crimes — torture and aggression — that have repeatedly drawn international attention and condemnation but have not been adjudicated as stand-alone crimes. It begins by considering the different reasons for the treatment — in practice, if not always in theory — of these two crimes as outside the ‘core crimes’ involving the most heinous offences: war crimes, crimes against humanity, and genocide. This is followed by discussions of torture as a discrete crime; torture as a war crime and a crime against humanity; the emergence of the notion of the crime of aggression and its falling into lethargy; the elements of the crime of aggression; the need to disentangle criminal liability of individuals from state responsibility; and whether conspiracy to wage aggression is criminalized.
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13. The right to life
This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.
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19. Social harm
This chapter evaluates the idea of ‘social harm’, considering whether we should think of it as being separate from, or related to, what we have previously thought of as ‘criminology’. It begins by examining what social harm is, and the many criticisms that its proponents make of traditional interpretations of ‘crime’ and ‘criminology’. The social harm approach, a perspective that has become increasingly prominent over the past two decades, argues that state-generated, legal definitions of ‘crime’ are much too narrow, as they do not reflect significant (though not always illegal) social, physical, emotional, psychological, cultural, and financial and economic harms that can be inflicted by social structures, multinational bodies, and the state. So far, much of the work in this area has focused on broader theoretical and conceptual issues, but social harm perspectives have also informed important studies of a wide range of social occurrences and events. These have ranged from studies of the harm caused by corporations, human trafficking, genocide, austerity measures, intimate partner violence, and penal harm.
Book
Douglas Guilfoyle
International Criminal Law provides an introduction to a fascinating subject area. Structured in four parts, the first part of the work looks at the foundations of international criminal law. Part II considers issues surrounding the prosecuting of international crimes. It analyses areas such as jurisdiction, evidence, procedure, and appeals. Part III is about core international crimes and it examines topics such as war crimes, genocide, crimes against humanity, and aggression. The final part looks at defendants in international criminal trials. Finally, consideration is given to issues such as legal defences and immunities under international law.
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10. Genocide
This chapter focuses on the crime of genocide. The prohibition against genocide is now found in treaty and customary law, and is universally accepted as being an international crime ‘whether committed in time of peace or in time of war’. Genocide requires that a prohibited act is committed against a member of one of the protected groups, being a ‘national, ethnical, racial, or religious group’. The chapter first considers the definition of the protected groups. It then outlines the legal definitions of the prohibited acts; considers whether there is a ‘contextual element’ required as part of the crime of genocide; and examines the mental element of the crime of genocide and the role of the ‘special intent’ requirement.
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30. International criminal justice
This chapter discusses the development of international criminal law and institutions, international criminal courts and tribunals, and international criminal justice in national courts. These developments respond to but also reflect repeated failures to prevent serious violations of human rights and international humanitarian law. The work of the International Criminal Court, specialized criminal tribunals and ‘hybrid’ tribunals is outlined.
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19. Understanding state crime
Penny Green and Tony Ward
This chapter discusses the concept of state crime and proposes a distinction between ‘core state crimes’ of organized murder, rape, theft, etc., and more ambiguous criminal activity. Focusing mainly on core state crimes, it reviews some of the main approaches to explaining state violence and corruption. It then explores the methods used by social scientists to study state crime. While ethnographic fieldwork is the central method of research, it is complemented by a range of other sources of quantitative and qualitative data. These include, for example, the analysis of social media content and satellite imagery.
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26. International Criminal Law
Robert Cryer
This chapter first discusses the overlaps between human rights and international criminal law, focusing on four international crimes: genocide, crimes against humanity, war crimes, and aggression. It then considers prosecutions and non-prosecutorial options, concluding with an analysis of the pros and cons of using international criminal law to protect human rights.
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19. The Repression of International Crimes
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
This chapter begins with an overview of international crimes, namely, offences entailing the personal criminal liability of the individuals concerned (as opposed to the responsibility of the State) under international law. International crimes include war crimes, crimes against humanity, genocide, torture, aggression, and terrorism. The discussion then turns to the prosecution and punishment by State courts, focusing on the grounds of criminal jurisdiction and in particular universal criminal jurisdiction. It ends with an overview of the prosecution and punishment by international criminal courts and tribunals, with an emphasis on the International Criminal Court, and with an assessment of the main problems besetting international criminal proceedings.
Book
Antonio Cassese and Paola Gaeta
This third edition of Cassese’s International Criminal Law provides an account of the main substantive and procedural aspects of international criminal law. Adopting a combination of the classic common law and more theoretical approaches to the subject, it discusses: the historical evolution of international criminal law; the legal definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus aggression, torture and terrorism; the forms and modes of criminal responsibility; and the main issues related to the prosecution and punishment of international crimes at the national and international level, including amnesties, statutes of limitations and immunities. The book guides the reader through a vast array of cases and materials from a number of jurisdictions, providing analysis that brings the political and human contexts to the fore. The International Criminal Court and all the other modern international criminal courts are fully covered, both as regards their structure, functioning and proceedings, and as far as their case law is concerned.
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26. International Criminal Law
Paola Gaeta
This chapter describes the characteristics of international criminal law as a branch of international law dealing with the criminal responsibility of individuals for international crimes. It begins by setting out the beginnings and subsequent development of this specialized branch of international law, then focuses on its inherent pluralism, which results from the multiple jurisdictions in which prosecution of individuals responsible for international crimes is possible. The chapter also discusses the main aspects of the definition of the so-called ‘core’ international crimes: aggression, war crimes, crimes against humanity, and genocide. It concludes by presenting the role of national jurisdictions in the prosecution of international crimes, and some of the challenges faced by international criminal courts and tribunals in fulfilling their mandates.
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17. International criminal law
This chapter describes international criminal law. International criminal law represented a fundamental shift for international law. Historically, international law regarded accountability and responsibility almost purely through the lens of the State and contained neither substantive rules nor the requisite institutions to prosecute an individual. Today, there exist several institutions, most prominently the International Criminal Court (ICC), which have given shape both to the substance of the crimes themselves and to the method for their effective prosecution. Through international criminal law, the criminal responsibility and liability of individuals, even if acting in groups, are now addressed internationally. There is a category of indisputable ‘core crimes’ under customary international law: genocide, crimes against humanity, war crimes, and aggression. These are helpfully defined in an ICC document called the ‘Elements of Crimes’, which is intended to guide the Court in the interpretation and application of these crimes.
