This chapter deals with international criminal procedure, focusing on the International Criminal Court (ICC). It first introduces international criminal procedure and the various parties involved in the process (judges, prosecutors, suspects or accused persons, and witnesses and victims). It then examines the pre-trial phase of proceedings, including criminal investigation, the decision to prosecute, and the role of the document specifying the charges (called an ‘indictment’ by some courts and national systems). Next, the chapter provides an overview of the trial phase and examines the role of guilty pleas, evidence (and its pre-trial disclosure), and the conduct of trial proceedings.
12
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the relation between international law and criminal jurisdiction by states and examines the main heads of jurisdiction applied by states. It then analyzes the content of the relevant international rules dealing with domestic criminal jurisdiction for the repression of international crimes.
Chapter
This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
International criminal law (ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) and to make those persons who engage in such conduct criminally liable. These rules consequently either authorize states, or impose upon them the obligation to prosecute and punish such criminal conducts. This chapter discusses the main features of ICL; the sources of ICL; and the notion of international crimes.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of the notion of war crimes. It then covers the criminalization of the serious violation of a rule of international humanitarian law; the objective and subjective elements of war crimes; the nexus with armed conflict; and war crimes in the International Criminal Court Statute.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
Terrorism, as in the case of torture and aggression, is often treated as outside the ‘core crimes’ bracket of deserving international criminal adjudication. Many states believe that terrorism is better investigated and prosecuted at the state level by individual or joint enforcement and judicial action. This view is strengthened by the feeling that the concept of terrorism is still controversial at the international level because it is widely held that there is no agreement yet on what some states deem to be a necessary exception to the crime. This chapter examines the reasons why the traditional wisdom is that a generally agreed definition on terrorism as an international crime is lacking. It argues instead that many factors point to the existence of such agreed definition, at least for terrorism in time of peace. The legal ingredients of terrorism as an international crime are therefore analyzed.
Chapter
This chapter discusses the definition of crimes against humanity, its underlying offences, and some of the historical and theoretical issues surrounding the offence. It first outlines the evolution of the legal definition of crimes against humanity, which occurred through the statutes of international criminal tribunals. It then deals with the ‘contextual element’ of the offence; considers the prohibited acts that may form the conduct underlying a crime against humanity, with the exception of the complex crime of persecution; and examines the crime of persecution. Finally, it re-considers the question why there should be a separate category of crimes against humanity.
Chapter
This chapter focuses on the crime of aggression. It first traces the historical development crime of aggression. It then addresses the question of who can be considered a perpetrator of the crime; outlines the manner in which the crime can be committed; examines the controversial question of how ‘aggression’ is to be defined for the purposes of the offence; and distinguishes between aggression and lawful uses of military force in international law. The remainder of the chapter discusses some controversial cases of the use of force and whether they might constitute aggression; outlines the mental element required; explains the applicable law before the International Criminal Court (ICC); and explores the possibility of prosecuting acts of aggression before national courts.
Chapter
This chapter discusses the law of war crimes. It begins by introducing the basic principles of the law of armed conflict (LOAC): distinction and proportionality. It then distinguishes between international and non-international armed conflicts; outlines the contextual element and mental element required for war crimes; provides an overview of the prohibited acts that may form the conduct underlying a war crime; and examines select war crimes in more detail. The chapter concludes with a table comparing the range of offences applicable under the International Criminal Court (ICC) Statute to NIACs and IACs. It also provides a hypothetical scenario to which the law can be applied.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the two major theories that are currently in use in international criminal law to address group criminality: joint criminal enterprise; and co-perpetration by control over the crime. Under these theories, each participant will be treated as a principal, provided that he played a sufficiently important role in the commission of the crime. Gradations of culpability may be taken into account at the sentencing stage. In addition, although joint criminal enterprise focuses on shared intention and co-perpetration focuses on shared action, the application of either theory will yield the same result in most cases. Indirect perpetration is then analyzed.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
The term ‘genocide’ refers to the intention to destroy entire groups, whether national, racial, religious, cultural, and so on. Genocide acquired autonomous significance as a specific crime in 1948, when the UN General Assembly adopted the Genocide Convention, whose substantive rules may largely be considered as declaratory of customary international law. This chapter analyzes the main features of the Genocide Convention and examines the legal ingredients of the crime of genocide, as also clarified in international and national case law. It discusses developments in the case law on genocide; objective and subjective elements of genocide; protected groups; two problematic aspects of genocide; genocide and crimes against humanity; and Article 6 of the International Criminal Court Statute and customary international law.
Chapter
This chapter discusses the basic principles of national jurisdiction to prosecute crimes. Despite the growth of international courts and tribunals, no international criminal court has jurisdiction over all international crimes wherever committed. Thus, in practice, international criminal law will largely rely on prosecutions conducted before national courts, making the extent of national criminal jurisdiction a topic of vital importance. The chapter begins by introducing the different forms of jurisdiction and some basic distinctions. It then provides an overview of the theory of national prescriptive jurisdiction based on ‘links’ or ‘nexus’ between the crime and the prescribing State; outlines the principle of ‘universal jurisdiction to prescribe’ and its controversies; and looks to treaty-based systems of ‘quasi-universal’ jurisdiction over international crimes.
Chapter
This chapter examines the commission of crimes. It distinguishes between principals and accessories. It considers a range of ways of being involved in crimes, called ‘modes of participation in crimes’, such as aiding and abetting, ordering or inciting crimes, or being responsible for crimes as a superior. Further, two special doctrines of ‘commission’ have grown up before international tribunals to describe the involvement of leaders as principals in international crimes. These are called joint criminal enterprise and co-perpetration, respectively. Finally, the chapter considers what happens when the one set of facts might satisfy the elements of several different international crimes, giving rise to issues of concurrence of crimes.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the notions of omission liability and superior responsibility. International criminal liability may arise not only as a result of a positive act but also from an omission; that is, the failure to take the required action. Omission is only criminalized when the law imposes a clear obligation to act and the person fails to do what is legally required. The post-Second World War tribunals recognized that both action and omission to act in accordance with a legal duty could fulfil the physical element (actus reus) of a crime. Additionally, the doctrine of superior responsibility (also referred to as command responsibility, since it originally developed in a military context) emerged in its modern form as a discrete and important type of omission liability in the post-war case law. Pursuant to this doctrine, a superior who omits to prevent or punish his subordinate’s criminal acts may be held criminally responsible.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of the two main features that characterize international crime. It then explains the objective structure of international crime, which divides these crimes into conduct; consequences; and circumstances. This is followed by discussions of the mental element of international criminal law; intent; special intent (dolus specialis) recklessness or indirect intent, knowledge, culpable or gross negligence, the mental element in the International Criminal Court Statute, and judicial determination of the mental element.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the main models that have been established to regulate issues of concurrent jurisdiction of international and national criminal courts over certain international crimes. It compares the Nuremberg scheme and the International Criminal Court (ICC) scheme. It considers the primacy of international criminal courts with respect to national jurisdictions, and the complementarity of the ICC. It also discusses the main models of states’ judicial cooperation with international criminal courts adopted so far.
Chapter
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.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the process toward the eventual adoption of a Statute for a permanent International Criminal Court (ICC) and the adoption of Statutes of various ad hoc international criminal courts. The process can be conceptualized in terms of several distinct phases: abortive early attempts (1919–45); the establishment of the Nuremberg and Tokyo Tribunals in the aftermath of the Second World War (1945–7); the post-Cold War ‘new world order’ and the establishment by the UN Security Council of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (1993–4); the drafting and adoption of the ICC Statute (1994–8); and the establishment of ad hoc hybrid criminal courts.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses the obstacles that may hamper or jeopardize criminal proceedings for international crimes. These include rules granting amnesty for broad categories of crimes; statutes of limitation; the prohibition of double jeopardy (the principle of ne bis idem), whereby a person may not be brought to trial twice for the same offence; and international rules on personal immunities.
Chapter
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
The right of defendants to appeal against conviction or sentence is normally regarded as a fundamental human right. At present this right is laid down in numerous international treaties on human rights, as well as in the Statutes of international courts. The notion and purpose of appellate proceedings vary in national systems. Subject to a number of specifications and exceptions, in civil law countries, that is countries of Romano-Germanic legal tradition, these proceedings amount largely to a retrial by a court of appeal. In contrast, in most common law countries appellate proceedings do not lead to a retrial. Appeals courts, which do not have any jury, do not review facts, but decide on the basis of the trial record. In international criminal proceedings neither the common law system nor the civil law model have been upheld. Rather, a mixed system has been accepted, which is discussed in this chapter.
12
