ICL PPoint

INTERNATIONAL
CRIMINAL LAW
Dr Russell Bucha
University of Sheffield
n
Two Issues:
● 1. Substantive crime
● 2. Enforcement mechanisms
s
Substantive Crimes
Concept
● Direct individual criminal responsibility as opposed to state responsibility
● Protection of fundamental interests of the international society
● What are these interests? International peace and security, which includes humanity.
● Aims: Retribution, deterrence and rehabilitation
● ICL has a long history in international law: piracy, slavery

Sources of International Criminal Law
● International treaties (Geneva Conventions; Genocide

convention
● Customary international la
● General principles of international la
● Statutes of international criminal tribunals

)
Recognised crimes
● Genocid
● War Crime
● Crimes against Humanit
● Aggression
● Terrorism? (Lebanon tribunal

● Torture?
e
Genocide
• Response to WW II atrocities
• Genos = genealogy/cide = to kill
• Crime of crimes
• Genocide Convention 1948:
• State responsibility (The Gambia v Myanmar)

• Obligation to criminalise under national law, and to prevent and punish
• GC provides a working definition: acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such
Genocide: Actus Reus
• Article 6 ICC Statute: genocidal acts include

a) Killing members of the group;  
 
(b) Causing serious bodily or mental harm to members of the
group;  
 
(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;  
 
(d) Imposing measures intended to prevent births within the group;  
 
(e) Forcibly transferring children of the group to another group
Protected Groups
● Physical destruction of the group, rather than the conditions

for its enjoyment eg cultural genocide, forced migratio
● Must be: ‘national, ethnical racial or religious group
● Other groups?
● Gay
● ‘Non-Serbs’
● ‘Substantial part’ of a protected group suffices (Krstic)

?
Mens Rea
● Double intent (Jelisic, ICTY):
● i) intent to commit the specific act and

● ii) intent to destroy a group
● This is what distinguishes genocide from mass

murder

Crimes against Humanity

● Article 7 ICC Statute
● A ‘crime against humanity means any of the following acts when committed as part of a widespread
or systematic attack directed against any civilian population, with knowledge of the attack:
● (a) Murder
● (b) Extermination
● (c) Enslavement
● (d) Deportation or forcible transfer of population
● (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law
● (f) Torture
● (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity
● (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
Crimes against Humanity: Actus Reus
● Must be one of the prohibited acts listed in Art 7
● Within or beyond armed conflict i.e. peacetim
● Attack must be against the civilian population i.e. not

combatant
● The attack must be part of a

● widespread attack (massive, large scale – Akayesu) or
● systematic attack (organised violence – Blaskic)
s
War Crimes
● Article 8 ICC Statut
● International armed conflict:

(1) Grave breaches of the Geneva Convention
(2) Other serious violations of laws and customs of war accepted in
international la
● Non international armed conflict:

(1) Serious violations of common Article 3 Geneva Conventions
(2) Other serious violations of laws and customs of non international
conflict accepted in international law
w
Aggression
● War of aggression/crime against peace - WWI
● GA Res on the definition of Aggression (1974): war of aggression is

a crime. It enumerates acts of aggressio
● ICC and Kampala conference 201
● July 2018 – crime of aggression came into force

0
Art 8bis ICC Statute
● Generic definition
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
:
Enforcement Mechanisms
WW I and II
● Treaty of Versailles 191
● Created military tribunals to try leaders/Kaiser for
violations of the laws of wa
● 1945 – International Military Tribunals for Nuremberg

and for the Far East to establish individual criminal
responsibility
9
Tribunals
● National courts
● ICTY 1993 (SC Res 808)
● ICTR 1994 (SC Res 955)
● Sierra Leone 2002 (SC Res 1315)
● Cambodia 2003
● Lebanon 2008 (SC Res 1715)

Strengths and Weaknesses

● Strengths
● Internationalized justice
● Primacy
● Procedural fairness
● Weaknesses
● Cooperation with implicated actors
● Victor’s justice
● Selectivity

The Road to Rome

● 1980s USSR and Trinidad
● Terrorism and drug trafficking
● GA’s request to ILC 1989
● ILC Draft Statute 1994
● GA established Prepcom
● Rome Statute 1998
● Votes 120-7 (China, Israel, USA, Libya, Iraq, Qatar,
Yemen) 21 abstentions

The International Criminal Court

● ICC came into force after 60 ratifications in 2002
● ICC is an independent international organisation
● But see relationship to the the UN and in particular the

Security Council
Jurisdiction
● Not universal jurisdiction
● Article 12 Rome Statute
● 1. State party must have accepted jurisdiction (or the Security
Council refers under Chapt VII
● and
● 2. The individual is a national of a state party, or

● 3. The crime is committed on the territory of a state party
…
ICC: Trigger Mechanisms

● Article 13 Rome Statute delineates the ICC’s ‘triggers’
● The court may exercise jurisdiction over a crime if:
● A situation in which one or more such crimes is referred to

the Prosecutor by:
● A state party
● By the Security Council acting under Chapter VI; or
● By the Prosecutor initiating an investigation

Security Council and the ICC

● SC can refer cases to the Court under Article 13
● SC Res 1593 (2005) - Darfur
● SC can defer cases under Article 16

● SC Res. 1422 (2002) - peacekeeping

Complementarity
● ICC does not have primacy
● ICC jurisdiction is ‘complementary’ to national courts –

‘unable or unwilling’ (Article 17)
● Unable: ‘total or substantial collapse’ of the national system

● Unwilling:
i) Refusal to prosecute to shield the individual from responsibility
ii) Unjustified delay in bringing the case
iii) Biased proceedings

Case Study: Complementarity in

Colombia
● Justice and Peace Law
● Amnesty (democratically approved)
● Heavily reduced/discounted sentences
● Is Colombia ‘unwilling’? Does Art 17 require bad faith?
● Article 53 Rome Statute: if in the ‘interests of justice’ the
prosecutor can discontinue a prosecution.

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INTERNATIONAL

● Protection of fundamental interests of the international society

● Aims: Retribution, deterrence and rehabilitation

● ICL has a long history in international law: piracy, slavery

● International treaties (Geneva Conventions; Genocide

● General principles of international la

● Statutes of international criminal tribunals

● Terrorism? (Lebanon tribunal

• Genos = genealogy/cide = to kill

• Genocide Convention 1948:

• State responsibility (The Gambia v Myanmar)

• Article 6 ICC Statute: genocidal acts include

● Physical destruction of the group, rather than the conditions

● Must be: ‘national, ethnical racial or religious group

● ‘Substantial part’ of a protected group suffices (Krstic)

● Double intent (Jelisic, ICTY):

● i) intent to commit the specific act and

● This is what distinguishes genocide from mass

Crimes against Humanity

● (d) Deportation or forcible transfer of population

● Within or beyond armed conflict i.e. peacetim

● Attack must be against the civilian population i.e. not

● The attack must be part of a

● International armed conflict:

● Non international armed conflict:

● GA Res on the definition of Aggression (1974): war of aggression is

● ICC and Kampala conference 201

● July 2018 – crime of aggression came into force

Art 8bis ICC Statute

● 1945 – International Military Tribunals for Nuremberg

● ICTY 1993 (SC Res 808)

● ICTR 1994 (SC Res 955)

● Sierra Leone 2002 (SC Res 1315)

● Lebanon 2008 (SC Res 1715)

Strengths and Weaknesses

The Road to Rome

The International Criminal Court

● ICC is an independent international organisation

● But see relationship to the the UN and in particular the

● 2. The individual is a national of a state party, or

ICC: Trigger Mechanisms

● The court may exercise jurisdiction over a crime if:

● A situation in which one or more such crimes is referred to

Security Council and the ICC

● SC can defer cases under Article 16

● ICC jurisdiction is ‘complementary’ to national courts –

● Unable: ‘total or substantial collapse’ of the national system

Case Study: Complementarity in

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