An Introduction to International Criminal Law and Procedure

Half-title
Title
Copyright
Contents
Preface to the Second Edition
Table of Cases
Table of Treaties and other International Instruments
Table of Abbreviations
Book titles and their abbreviations as used in the text
Part A Introduction
1 Introduction: What is International Criminal Law?
1.1 International criminal law
1.1.1 Crimes within the jurisdiction of an international court or tribunal
1.2 Other concepts of international criminal law
1.2.1 Transnational criminal law
1.2.2 International criminal law as a set of rules to protect the values of the international order
1.2.3 Involvement of a State
1.2.4 Crimes created by international law
1.3 Sources of international criminal law
1.3.1 Treaties
1.3.2 Customary international law
1.3.3 General principles of law and subsidiary means of determining the law
1.4 International criminal law and other areas of law
1.4.1 International criminal law and human rights law
1.4.2 International criminal law and international humanitarian law
1.4.3 International criminal law and State responsibility
1.5 A body of criminal law
1.5.1 Nullum crimen sine lege
1.5.2 Nulla poena sine lege
Further reading
2 The Objectives of International Criminal Law
2.1 Introduction
2.2 The aims of international criminal justice
2.2.1 Retribution
2.2.2 Deterrence
2.2.3 Incapacitation
2.2.4 Rehabilitation
2.2.5 Denunciation/education
2.3 Broader goals
2.3.1 Justice for victims
2.3.2 Recording history
2.3.3 Post-conflict reconciliation
2.3.4 Further asserted benefits of international trials
2.4 Other critiques of criminal accountability
Further reading
Part B Prosecutions in National Courts
3 Jurisdiction
3.1 Introduction
3.2 The forms of jurisdiction
3.2.1 Legislative jurisdiction
3.2.2 Adjudicative jurisdiction
3.2.3 Executive jurisdiction
3.3 Conceptual matters
3.3.1 The question of proof
3.3.2 Treaties and jurisdiction
3.4 The ‘traditional’ heads of jurisdiction
3.4.1 The territoriality principle
3.4.2 The nationality principle
3.4.3 The passive personality principle
3.4.4 The protective principle
3.5 Universal jurisdiction
3.5.1 Introduction
3.5.2 Approaches to universal jurisdiction
3.5.3 The rise of universal jurisdiction
3.5.4 The decline of universal jurisdiction?
The Yerodia case
Limiting universality
Other practice
3.5.5 Universal jurisdiction’s practical problems
3.5.6 Policy-based/political criticisms of universal jurisdiction
Further reading
4 National Prosecutions of International Crimes
4.1 Introduction
4.2 National prosecutions
4.3 State obligations to prosecute or extradite
4.3.1 Treaty obligations
4.3.2 Human rights law obligations
4.3.3 Customary obligations and ius cogens arguments
4.4 Domestic criminal law and criminal jurisdiction
4.4.1 Domestic legislation
4.4.2 The ICC as a catalyst for domestic legislation
4.4.3 Impact of domestic and international case law
4.5 Statutory limitations
4.6 The Non-retroactivity principle
4.7 Ne bis in idem or double jeopardy
4.7.1 Application between States
4.7.2 Application vis-à-vis international criminal jurisdictions
4.8 Practical obstacles to national prosecutions
Further reading
5 State Cooperation with Respect to National Proceedings
5.1 Introduction
5.2 International agreements
5.3 Some basic features
5.3.1 Traditional assistance and ‘mutual recognition’
5.3.2 Double criminality, rule of specialty and statutory limitations
5.3.3 Ne bis in idem or double jeopardy
5.3.4 Human rights and legal cooperation
5.4 Extradition
5.4.1 Extradition agreements and the European Arrest Warrant
5.4.2 Extradition procedures
5.4.3 Extraditable and non-extraditable offences
5.4.4 Non-extradition of nationals
5.4.5 Death penalty, life imprisonment and other human rights grounds
5.4.6 Re-extradition
5.4.7 Abduction, rendition or expulsion
5.5 Mutual legal assistance
5.6 Transfer of proceedings
5.7 Enforcement of penalties
Further reading
Part C International Prosecutions
6 The History of International Criminal Prosecutions: Nuremberg and Tokyo
6.1 Introduction
6.2 The commission on the responsibility of the authors of the war
6.3 The Nuremberg International Military Tribunal
6.3.1 The creation of the Tribunal
6.3.2 The Tribunal and the trial
6.3.3 Assessment of the Nuremberg IMT
6.4 The Tokyo International Military Tribunal
6.4.1 The creation of the Tribunal
6.4.2 The Tribunal and the trial
6.4.3 Assessment of the Tribunal
6.5 Control Council Law No. 10 trials and military commissions in the Pacific sphere
Further reading
7 The ad hoc International Criminal Tribunals
7.1 Introduction
7.2 The International Criminal Tribunal for Yugoslavia
7.2.1 The creation of the ICTY
7.2.2 The structure of the ICTY
7.2.3 The jurisdiction of the ICTY and its relationship to national courts
7.2.4 Milestones in the practice of the ICTY
Beginnings and the Tadic case
The time of trials
Moving towards completion
7.2.5 Appraisal of the ICTY
7.3 The International Criminal Tribunal for Rwanda
7.3.1 The creation of the ICTR
7.3.2 The structure of the ICTR
7.3.3 The jurisdiction of the ICTR and its relationship to national courts
7.3.4 The practice of the ICTR
Teething troubles
Moving forwards
The completion strategy
7.3.5 Appraisal of the ICTR
Further reading
8 The International Criminal Court
8.1 Introduction
8.2 The creation of the ICC
8.2.1 The 1998 Rome Conference
The problem of travaux préparatoires
Working methods during the negotiations
8.2.2 Preparations for the Court
8.3 Structure and composition of the ICC
8.4 Crimes within the jurisdiction of the ICC
8.4.1 Other crimes
8.5 Applicable law
8.6 Complementarity and other grounds of inadmissibility
8.6.1 The complementarity principle
8.6.2 National proceedings relating to the ‘case’
8.6.3 Unwillingness to carry out proceedings genuinely
8.6.4 Inability to carry out proceedings genuinely
8.6.5 Voluntary relinquishment of jurisdiction and uncontested admissibility
8.6.6 Amnesties and truth and reconciliation commissions
8.6.7 Other grounds for inadmissibility
Ne bis in idem
‘Not of sufficient gravity’
8.6.8 Challenges to admissibility
8.6.9 The Rome Statute as an incentive to national legislation
8.7 Initiation of proceedings (the ‘trigger mechanisms’)
8.7.1 States Parties
8.7.2 Security Council
8.7.3 Prosecutor’s power to initiate an investigation
8.7.4 ‘Self-referrals’
8.8 Jurisdiction: personal, territorial and temporal
8.8.1 Article 124
8.8.2 ‘Ad hoc’ acceptance of jurisdiction
8.8.3 Persons over 18
8.8.4 Temporal jurisdiction
8.9 Deferral of investigation or prosecution: Article 16
8.10 Enforcement of the ICC’s decisions
8.11 Opposition to the ICC
8.11.1 Opposition to jurisdiction over nationals of non-party States
8.11.2 Other arguments against the Statute
8.11.3 Challenges to the ICC
Security Council resolutions
Non-surrender agreements
Other challenges to the Court
8.12 Appraisal
Further reading
9 Other Courts with International Elements
9.1 Introduction
9.2 Courts established by agreement between the United Nations and a State
9.2.1 Special Court for Sierra Leone
9.2.2 Cambodia: Extraordinary Chambers
9.2.3 Special Tribunal for Lebanon
9.3 Courts established by the United Nations or other international administration
9.3.1 Kosovo and East Timor: Special Panels
9.3.2 Bosnia and Herzegovina: the War Crimes Chamber
9.4 Courts established by a State with international support
9.4.1 Iraq: the Iraqi High Tribunal
9.4.2 Serbia: the War Crimes Chamber
9.5 Lockerbie: an ad hoc solution for a particular incident
9.6 Relationship with the ICC
9.7 Appraisal
Further reading
Part D Substantive Law of International Crimes
10 Genocide
10.1 Introduction
10.1.1 Overview
10.1.2 Historical development
10.1.3 Relationship to crimes against humanity
10.1.4 The nature of genocide
10.2 The protected groups
10.2.1 National, ethnical, racial and religious groups
10.2.2 Identification of the group and its members
10.3 Material elements
10.3.1 The prohibited acts
Killing
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
Forcibly transferring children of the group to another group
10.3.2 The ‘contextual element’
10.4 Mental elements
10.4.1 ‘to destroy’
10.4.2 ‘in whole or in part’
10.4.3 ‘as such’
10.4.4 Intent
Proof of special intent
Intent; not knowledge
10.5 Other modes of participation
Further reading
11 Crimes Against Humanity
11.1 Introduction
11.1.1 Overview
11.1.2 Historical development
11.1.3 Relationship to other crimes
11.2 Common elements (the contextual threshold)
11.2.1 Aspects not required
No nexus to armed conflict
No requirement of discriminatory animus
11.2.2 Widespread or systematic attack
Widespread or systematic
Attack
‘Attack directed’ and the controversy concerning the policy element
The divide in the authorities
Interpretation of the authorities
11.2.3 ‘Any civilian population’
11.2.4 The link between the accused and the attack
11.2.5 Mental element
11.3 Prohibited acts
11.3.1 The list of prohibited acts
11.3.2 Murder
11.3.3 Extermination
11.3.4 Enslavement
11.3.5 Deportation or forcible transfer
11.3.6 Imprisonment
11.3.7 Torture
11.3.8 Rape and other forms of sexual violence
Rape
Sexual slavery
Enforced prostitution
Forced pregnancy
Enforced sterilization
Other sexual violence
11.3.9 Persecution
Severe deprivation of fundamental rights
Gravity or severity
Discriminatory grounds
Connection to other acts
Civilian population?
Mental element
Relationship to other crimes
Examples of persecutory acts
11.3.10 Enforced disappearance
11.3.11 Apartheid
11.3.12 Other inhumane acts
Further reading
12 War Crimes
12.1 Introduction
12.1.1 Overview
12.1.2 A brief history of humanitarian law
12.1.3 Key principles of humanitarian law
12.1.4 The challenge of regulating warfare
12.1.5 The relationship between war crimes and IHL
12.1.6 A brief history of the law of war crimes
12.1.7 War crimes in internal armed conflicts
12.2 Common issues
12.2.1 Armed conflict
12.2.2 Distinguishing between international and internal conflicts
Wars of national liberation
UN forces
Proxy forces
12.2.3 Distinguishing internal conflict from riots and disturbances
12.2.4 Nexus between conduct and conflict
12.2.5 The perpetrator
12.2.6 The victim or object of the crime
12.2.7 The ‘jurisdictional’ threshold in the ICC Statute
12.3 Specific offences
12.3.1 The lists of war crimes in the Statutes of the Tribunals and the ICC
12.3.2 Crimes against non-combatants
Violence and mistreatment
Other legal interests of protected persons
12.3.3 Attacks on prohibited targets (principle of distinction)
12.3.4 Attacks inflicting excessive civilian damage
The principle of proportionality
First side of the equation: harm to civilians, civilian objects and the environment
Second side of the equation: military advantage
Comparing the two sides of the equation: the proportionality test
The mental element
12.3.5 War crimes against property
12.3.6 Prohibited means of warfare (weapons)
12.3.7 Prohibited methods of warfare
12.3.8 War crime provisions protecting other values
Transfer of population into occupied territory
Child soldiers
Further reading
13 Aggression
13.1 Introduction
13.1.1 Overview
13.1.2 Historical development
The International Criminal Court negotiations
13.1.3 Relationship to other crimes
13.2 Material elements
13.2.1 Perpetrators
13.2.2 Planning, preparation, initiation or waging
13.2.3 Act of aggression
I. International law regarding the use of force by a State
Self-defence
Authorization under Chapter VII
Humanitarian intervention
II. ICC definition
13.3 Mental elements
13.4 Prosecution of aggression in the ICC
13.4.1 Jurisdiction of the ICC
13.4.2 Conditions for the exercise of the ICC’s jurisdiction
13.4.3 Implications of the prosecution of aggression before the ICC
Further reading
14 Transnational Crimes, Terrorism and Torture
14.1 Introduction
14.1.1 Overview
14.1.2 International suppression Conventions
14.2 Terrorism
14.2.1 Introduction
14.2.2 Development of international cooperation against terrorism
Global counter-terrorism agreements
Regional counter-terrorism agreements
Security Council Resolutions
14.2.3 The definition of terrorism
Material elements
Mental elements
14.2.4 Prosecution and other national measures
14.2.5 Terrorism as an international crime
Terrorism as a war crime
Terrorism as a crime against humanity
14.3 Torture
14.3.1 Introduction
14.3.2 UN Convention against Torture
Material elements
Mental elements
14.3.3 Prosecution and other national measures
14.3.4 Torture as an international crime
Further reading
Transnational crimes
Terrorism
Torture
Part E Principles and Procedures of International Prosecutions
15 General Principles of Liability
15.1 Introduction
15.2 Perpetration/commission
15.3 Joint criminal enterprise
15.3.1. Actus reus
15.3.2 Mens rea
15.3.3 The nature of joint criminal enterprise liability
15.4 Aiding and abetting
15.5 Ordering, instigating, soliciting, inducing and inciting
15.5.1 Ordering
15.5.2 Instigating, soliciting, inducing and inciting
15.6 Planning, preparation, attempt and conspiracy
15.6.1 Planning and preparing
15.6.2 Attempt
15.6.3 Conspiracy
15.7 Mental elements
15.8 Command/superior responsibility
15.8.1 Superior/subordinate relationship
15.8.2 Mental element
15.8.3 Failure to take measures
15.8.4 Causation
15.8.5 The nature of superior responsibility
Further reading
16 Defences/Grounds for Excluding Criminal Responsibility
16.1 Introduction
16.1.1 The types of defences
16.2 The ICC Statute and defences
16.3 Mental incapacity
16.4 Intoxication
16.4.1 Voluntary and involuntary intoxication
16.4.2 Destruction of capacity
16.4.3 A complete defence
16.5 Self-defence, defence of others and of property
16.5.1 Imminent, unlawful use of force
16.5.2 Reasonable and proportionate response
16.6 Duress and necessity
16.6.1 Imminent threat beyond the control of the accused
16.6.2 Necessary and reasonable actions
16.6.3 Causation
16.6.4 Mental element
16.7 Mistake of fact and law
16.7.1 Mistake of fact
16.7.2 Mistake of law
16.8 Superior orders
16.8.1 Obligation to obey
16.8.2 Knowledge of unlawfulness
16.8.3 Manifest illegality
16.8.4 Genocide and crimes against humanity
16.8.5 The relationship of superior orders to other defences
16.9 Other ‘defences’
16.9.1 Consent
16.9.2 Reprisals
16.9.3 Military necessity
Further reading
17 Procedures of International Criminal Investigations and Prosecutions
17.1 International criminal procedures
17.1.1 Introduction
17.1.2 Different legal traditions
17.1.3 International criminal tribunals and courts
17.1.4 International and domestic procedural law
17.2 International criminal proceedings and human rights
17.2.1 International human rights standards
17.2.2 Independence and impartiality
17.2.3 Presumption of innocence
17.2.4 Public, fair and expeditious proceedings
17.3 Actors in the proceedings and their roles
17.3.1 Judges
17.3.2 Prosecutor
17.3.3 Defendant and defence counsel
17.3.4 Victims and witnesses
17.3.5 States, international organizations and others
17.4 Jurisdiction and admissibility procedures
17.5 Commencement and discontinuance of a criminal investigation
17.6 The criminal investigation
17.7 Coercive measures
17.7.1 Coercive measures in general
17.7.2 Deprivation or restriction of liberty and surrender of suspects
17.7.3 Legality of the arrest and violations of procedural rights
17.8 Prosecution and indictment
17.8.1 Decision whether to prosecute
17.8.2 Amendments to and withdrawal of the indictment
17.8.3 The indictment
17.8.4 The charge and its relationship to the judgment
17.8.5 Concurrence of offences – alternative and cumulative charges
17.9 Pre-trial proceedings – preparations for trial
17.9.1 First appearance and confirmation of charges
17.9.2 Preparations for trial
17.9.3 Disclosure of evidence
17.10 Evidentiary rules
17.11 Admission of guilt, guilty pleas, plea bargaining
17.12 Trial and judgment
17.13 Appeals proceedings
17.13.1 Appeal against judgment and sentence
17.13.2 Grounds of appeal and standard of review
17.13.3 Interlocutory appeals
17.14 Revision
17.15 Offences against the administration of justice
17.16 Some observations
Further reading
18 Victims in the International Criminal Process
18.1 Introduction
18.2 Definition of victims
18.3 Protection of victims and witnesses
18.4 Victim participation in ICC criminal proceedings
18.4.1 Purposes of participation
18.4.2 Conditions for participation and legal representation
18.4.3 Participation in different stages of the process
18.5 Reparations to victims
18.6 An assessment
Further reading
19 Sentencing and Penalties
19.1 International punishment of crimes
19.2 Purposes of sentencing
19.3 Sentencing practice
19.3.1 Aggravating and mitigating circumstances
19.3.2 Cumulative or joint sentences
19.4 Sentencing procedures
19.5 Pardon, early release and review of sentence
19.6 Enforcement
Further reading
Penalties and sentencing
Enforcement of penalties
Part F Relationship Between National and International Systems
20 State Cooperation with the International Courts and Tribunals
20.1 Characteristics of the cooperation regimes
20.2 Obligation to cooperate
20.2.1 States
20.2.2 Conflicting international obligations of States
20.2.3 Individuals
20.3 Non-States Parties and international organizations
20.4 Non-compliance
20.5 Cooperation and the ICC complementarity principle
20.6 Authority to seek cooperation and defence rights
20.7 Arrest and surrender
20.8 Other forms of legal assistance
20.8.1 Grounds for refusal
20.8.2 National security objections
20.8.3 On-site investigations
20.8.4 Assistance regarding coercive measures
20.9 Domestic implementation
20.10 An assessment
Further reading
21 Immunities
21.1 Introduction
21.1.1 Overview
21.1.2 Functional and personal immunity
21.1.3 Examples of immunities
21.1.4 Underlying rationales and values
21.2 Functional immunity and national courts
21.2.1 The Pinochet precedent
21.2.2 The scope of the exception to functional immunities
Authorities indicating no functional immunities for core crimes
An open question?
21.3 Functional immunity and international courts
21.4 Personal immunity and national courts
21.4.1 State practice and jurisprudence
21.4.2 The ICJ Yerodia decision
Which ministers enjoy personal immunity?
Are personal immunities established for private visits?
21.5 Personal immunity and international courts
21.5.1 The Taylor theory: personal immunity is irrelevant before international courts
21.5.2 Relinquishment by Security Council decision
21.5.3 Relinquishment through accession to the ICC Statute
21.5.4 Decisions by the Security Council requiring cooperation with the ICC
21.6 Conclusion
Further reading
22 Alternatives and Complements to Criminal Prosecution
22.1 Introduction
22.2 Amnesties
22.2.1 International law and amnesties
22.2.2 The International Criminal Court and amnesties
22.2.3 Domestic jurisdictions and amnesties
22.2.4 Appraisal of amnesties
22.3 Truth commissions
22.4 Lustration
22.5 Reparations and civil claims
22.6 Local justice mechanisms
Further reading
23 The Future of International Criminal Law
23.1 Introduction
23.2 International courts and tribunals
23.3 Developments in national prosecutions of international crimes
23.4 The trend towards accountability
23.5 The development of international criminal law
23.6 The path forward (or back?)
Index