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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.

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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.

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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.

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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.

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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.

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This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

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This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

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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.

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This chapter addresses the prosecution of crimes in international criminal courts according to international—not national—criminal law. International law has long recognised that certain conduct, for example piracy and slavery, are crimes against international law which may be tried by international bodies or by any State. This principle has been expanded to cover more substantive crimes. International mechanisms for criminal accountability may be established where national courts have failed or are unable to try offenders due to a lack of political will, insufficient resources, deficiencies in national law, and/or ongoing conflict. The establishment and jurisdiction of the existing international criminal tribunals, including the International Criminal Court, are considered.

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.

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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.

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This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.

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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.

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.

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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

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.

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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.