General Characteristics of International Criminal Law
•ICL provides for:
•definition of crimes under international law
•criminal responsibility of individuals directly under international law
•forms of criminal responsibility: individual criminal responsibility, command (superior)
responsibility
•grounds for excluding criminal responsibility (Arguments serving as Defenses: 1. Necessity and
Duress, 2. Self-Defense, 3. Mistakes; Defenses not Admitted 1. Tu quoque 2. Superior Orders 3.
Official Capacity/Immunity.
•

Dimensions of Enforcement of ICL
•International (or ‘hybrid’) v. Domestic Courts
•During Armed Conflict v. In Peacetime
•Civil v. Criminal Processes
•Civilian Courts v. Military Justice
•Domestic v. Extraterritorial Jurisdiction
• (Universal Jurisdiction)
•

Nuremberg Tribunal: “Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the provisions of
international law be enforced. ”
Nuremberg.jpg

Crimes under International Law
•War crimes:
•serious violation of international humanitarian law committed in the course of an international or
internal armed conflict (whether against enemy civilians or combatants) which entails the
individual criminal responsibility of the person breaching that law (see the ICTY, Tadić case
(Interlocutory Appeal), at para. 94).
•War crimes comprise, for instance, indiscriminate attacks against civilians, ill-treatment or
torture of prisoners of war or of detained enemy combatants, rape of civilians, use of unlawful
methods or means of warfare, etc.
•

The ICC Statute
•Article 8 of the ICC Statute consolidates much of Hague &
•Geneva law:
•
•Grave and other Breaches of the Geneva Conventions
•
•violations of Common Article 3 & parts of AP I and II
•
•‘Means & Methods’ Violations
•
•Much overlap, but IAC provisions are more extensive (Weapons crimes such as poison weapons, dum
dum bullets, etc.)

–
–
–GCs I & II Art. 50, 51: “Grave breaches … shall be those involving any of the following acts, if
committed against persons or property protected by the Convention:
•willful killing,
•torture or inhumane treatment, including biological experiments,
•willfully causing great suffering or serious injury to body or health, and
•extensive destruction and appropriation of property not justified by military necessity and
carried out unlawfully and wantonly.”
–GC III Adds:
•“compelling a prisoner of war to serve in the forces of the hostile party, or
•willfully depriving a prisoner of war of the rights of fair and regular trial prescribed by this
Convention.”
–GC IV Adds:
•“unlawful deportation or transfer or unlawful confinement of a protecting person,
•compelling a protected person to serve in the forces of a hostile Power, or
•willfully depriving a protected person of fair and regular trial, [and]
•taking of hostages…”
–Victim must be a “protected person” and impacted property must be “protected.”
Grave breaches of GCs:

Protected persons
•Art. 13, 24, 25, 26 GC I: Wounded and sick members of the armed forces and medical personnel.
•Art. 13, 36, 37 GC II: Wounded, sick and shipwrecked members of the armed forces and medical,
religious, etc. personnel.
•Art. 4, GC III: Prisoners of war “who have fallen into the power of the enemy.”
•Art. 4, 20 GC IV: “[T]hose who, at a given moment and in any manner whatsoever, find themselves,
in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals. … Nationals of a neutral State who find themselves in the territory
of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected
persons while the State of which they are nationals has normal diplomatic representation in the
State in whose hands they are.”
–Catch all: applies where one of the other three Conventions does not apply.
•

Prosecutor v. Tadic
•Were Bosnian Muslim civilians “in the hands of a Party to the conflict or Occupying Power of which
they are not nationals” when they were detained and abused by Bosnian Serb forces?
•“While previous wars were primarily between well-established States, in modern inter-ethnic armed
conflicts such as that in the former Yugoslavia, new States are often created during the conflict
and ethnicity, rather than nationality may become the grounds for allegiance. … Under these
conditions, the requirement of nationality is even less adequate to define protected persons.”
Appeals Judgement, para. 166 (15 July 1999).
•“[T]he Bosnian Serbs … arguably had the same nationality as the victims…. However, … the Bosnian
Serb forces acted as de facto organs of another state, namely, the [Federal Republic of
Yugoslavia].” Id. at para. 167.
•

ICTY progressive development of ICL (JCE etc.)

Non-International Armed Conflict
•CA 3 and AP II are silent as to individual criminal responsibility. Implications?
•Jurisprudence has extended individual criminal responsibility to non-international armed
conflicts.
•Violation of nullum crimen sine lege?
–“customary international law imposes criminal liability for serious violations of common Article 3
… and for breaching certain fundamental principles and rules regarding means and methods of combat
in civil strife.” (Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, para. 134 (2 Oct. 1995).

Nexus to Armed Conflict
•Conduct must have a nexus to the armed conflict to constitute a war crime:
–Tadić: closely related to the armed conflict as a whole.
–Kayishima: “a direct link between crimes committed against these victims and the hostilities.”
–Kunarac: the conflict “played a substantial part in the perpetrator’s ability to commit [the
charged crime], his decision to commit it, the manner in which it was committed or the purpose for
which it was committed.”
–Kunarac: it is enough if “the perpetrator acted in furtherance of or under the guise of the armed
conflict.”
–ICC: the conduct “took place in the context of and was associated with” an armed conflict.
•If no nexus:
–The act may be another international crime (e.g., a crime against humanity, genocide) .
–The act may be a domestic crime (e.g., murder, rape).
•

•War Crimes = serious violations of  international humanitarian law (IHL), which were criminalized
•not all violations of IHL are war crimes
•Diagreement about how IHL may apply to peacekeepers, few definite answers – implications?
•Need to look to a wide range of sources- including international criminal law, human rights law,
SOFAs, Secretary-General‘s Bulletin (for UN peaceekeping) etc. (Ryszard Piotrowicz, Application of
IHL to UN peacekeepers‘)
•
•

•Crimes against humanity (CAH):
•particularly odious offences constituting a serious attack on human dignity or a grave humiliation
or degradation of one or more human beings (for instance, murder, forcible transfer of population,
torture, rape and other forms of sexual violence, persecution, enforced disappearance of persons).
•
•CAH versus war crimes: CAH not concerned with isolated or sporadic breaches. CAH:
• (i) may occur either in time of peace or of armed conflict, and
• (ii) constitute part of a widespread or systematic practice of atrocities (or attacks) committed
against the civilian population.
• (Report of the Commission of Inquiry for Darfur)
•
•

Objective (material element) “only the attack, not the individual acts of the accused, must be
‘widespread or systematic.’
widespread an = cumulative effect of a series of inhumane acts or the singular effect of an
inhumane act of extraordinary magnitude.’”
systematic”, it “requires an organised nature of the acts and the improbability of their random
occurrence.” “first identify the population which is the object of the attack and, in light of the
means, methods, resources and reset of the attack upon the population, ascertain whether the attack
was indeed widespread or systematic.” “The consequences of the attack upon the targeted population,
the number of victims, the nature of the acts, the possible participation of officials or
authorities or any identifiable patterns of crimes, could be taken into account to determine
whether the attack satisfies either or both requirements of a ‘widespread’
subjective element or mens rea : intent or recklessness and and knowledge that the offence is part
of a widespread or systematic practice plan.”

•Genocide:
•“crime of crimes” versus “no hierarchical gradation of crimes ”?
•all of the crimes specified in the ICTR Statute are “serious violations of international
humanitarian law”, capable of attracting the same sentence.” (the ICTR, Kayishema and Ruyindana, at
para. 367.)
•
•intent  motive  OR not?

ICJ Genocide case: BiH reactions (Sarajevo)

Intersection of HR and IHL (ICL)
Who owes HR obligations?
•HR “are designed to reconcile the effectiveness of state power with the protection against that
same state power.” (Tomuschat)
•Torture as a violation of human rights:
•See e.g. UDHR, ICCPR, ECHR, American Convention on Human Rights, etc.
•Torture as a crime under international law:
•See e.g. Statutes of ICTY, ICTY, ICC
•Compare with e.g. Trafficking in Human Beings (THB) – HR
• violations, crime or  both? Challenge not to confuse what might
• seem desirable, with what actually is.
•

The ICTY Treatment of Torture
•
•Delalic et al and Furundzija cases: “the definition of torture in the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 reflects a consensus that is
representative of customary international law.“
•Article 1(1) of the Torture Convention reads as follows: “For the purposes of this Convention, the
terms ‘torture’ means any act by which severe pain and suffering …is intentionally inflicted upon a
person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third party has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discriminations of any
kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity…”.
•
•Compare with the following judgment
•
•
•

The ICTY treatment of Torture
•Kunarac et al case:  the definition of torture under international humanitarian law does not
comprise the same elements as the definition used in human rights law.  In particular, “the
presence of a State official or of any other authority-wielding person in the torture process is
not necessary for the offence to be regarded as torture under international humanitarian
law”.(Prosecutor v. Kunarac et al, at para. 496.)

Note the discussion we had at the beginning of the lecture, ICL versus HR law. Not only different
subject, different respon.,  but also different definitional criteria.

Intersection of HR and IHL (ICL)
•No superseding of definitions – rather coexistence “inasmuch as they operate in different contexts
and purposes, providing protection to the individuals in different circumstances. ”
• (UN Economic and Social Council)
•

To a great extent, the developments in the area are the result of the interplay between different
sources of law and the practice of different actors at various levels

Criminal liability
•
•Direct liability: committing, ordering, instigating
•Joint Criminal Enterprise: interpreted as implicitly present in ‘committing’ : an individual who
knowingly and voluntarily joins a criminal enterprise can be held liable for all crimes committed
by the enterprise.
•Command (Superior) responsibility
•Accomplice liability: aiding and abetting
•Conspiracy: to commit genocide
•
•

Joint Criminal Enterprise (JCE)
•
•JCE= ‘Just Convict Everyone’?
•JCE= ‘discounted convictions’?
•JCE= viable model for addressing collective
• criminality?
•
•Over 64% of the indictiments submitted in the
• ICTY between 2001-2004 relied on JCE.

•Origings and development of the concept
•Three categories of JCE:
• I. the basic category: common purpose and common intention
• II. systemic category: so-called concentration camp cases or detention camps (members of military
or administrative units)
• III. extended category: acts beyond the common plan but still constitute a natural and
foreseeable consequence‚ of the realization of JCE
•

•General requirements of actus reus (physical elements):
•plurality of persons were involved in the commission of a crime;
•there was a common plan, design or purpose which amounts to or involves the commission of a crime;
no need for a formal agreement among participants (implied ag. suffices);
•the accused participated in the common design involving the perpetration of the crime.
•

JCE II no need for any implicit or explicit agreement, system of ill-treatment is itself a common
purpose.

•Mens rea (mental elements):
•JCE I: accused and the physical perpetrator shared the intent to commit the crime that is the
object of the JCE; accused‘s participation is voluntary, for crimes for which a specific intent is
required, the accused must possess that intent, e.g. for crimes of persecution the accused must
share the common discriminatory intent of JCE;
•JCE II: the intent to further the criminal purpose of the system of ill-treatment; personal
knowledge of the criminal nature of the system of ill-treatment; specific intent for
specific-intent crimes (e.g. genocide, persecution); a position of authority may be relevant
evidence for establishing the accused’s awareness of the system.
•
•

•JCE III: the intent to participate in the JCE; intent to futher the criminal purpose of the JCE;
crimes which fall beyond the JCE: natural and foreesable and the accused nevertheless willingly
took a risk.
•Practical examples and analysis

Squaring the circle p 16 Ambos

•ICTY, ICTR, SCSL (S. Milosevic, Ch. Taylor)
•ICC?
•Supreme Iraqi Criminal Tribunal (S. Hussein in ‘Dujail case’)
•Special Panels for Serious Crimes in East Timor
•Extraordinary Chambers in the Courts of Cambodia
•War Crimes Chamber of Court of Bosnia and Herzegovina (transfer of cases from the ICTY but also
inititation of own investigations and prosecutions)
•See also similarity of terminology in some Guantanamo Indictments  (the US jurisdiction)
Use of JCE – different contexts

Command Responsibility
•500 BC Sun Tzu
•1439 Ordinance of Orleans by Charles VII of France
• (captains and lieutenants held “responsible for the abuses, ills, and offenses committed by
members of his company”; “as soon as he receives any complaint concerning any such misdeed or
abuse, he bring the offender to justice”)
•1474 Peter Hagenbach brought to trial by the Archduke of Austria (duty to prevent a murder due to
his position as a knight)
•European military codes and articles of war
•US General Order No. 100 (“1863 Lieber Code”)
• Art. 44. All wanton violence committed against persons in the invaded country, all destruction of
property not commanded by the authorized officer, all robbery, all pillage or sacking, even after
taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are
prohibited under the penalty of death, or such other severe punishment as may seem adequate for the
gravity of the offense.
A soldier, officer or private, in the act of committing such violence, and disobeying a superior
ordering him to abstain from it, may be lawfully killed on the spot by such superior.
• Art. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or
kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly
convicted, whether he belongs to the Army of the United States, or is an enemy captured after
having committed his misdeed.

•1907 Hague Conventions (No. IV)
•
• Art. 1.  The Contracting Powers shall issue instructions to their armed land forces which shall
be in conformity with the Regulations respecting the laws and customs of war on land, annexed to
the present Convention.
•
• Art. 3.  A belligerent party which violates the provisions of the said Regulations shall, if the
case demands, be liable to pay compensation.  It shall be responsible for all acts committed by
persons forming part of its armed forces.
•
•

•In Re Yamashita (US Supreme Court upheld Philippine SC’s denial of General Yamashita’s petition
for habeas corpus):
•
• “These provisions plainly imposed on petitioner, who at the time specified was military governor
of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such
measures as were within his power and appropriate in the circumstances to protect prisoners of war
and the civilian population.  This duty of a commanding officer has heretofore been recognized, and
its breach penalized by our own military tribunals.”
•
•

•
•Originally uncodified in the GCs.
•AP I: Reaffirms duty of responsible command & codifies command responsibility
•Arts. 86-87, AP I to 1949 Geneva Conventions
•
•Art. 86:  Superior’s “Failure to act”
• a) fails to repress grave breaches of Geneva Conventions, take necessary measures to suppress all
other breaches
•
• b) knew, or had information which should have enabled him to conclude that the subordinate was
committing, or about to commit such breach
•
•

• Art. 87:  Duty of commanders with respect to “forces under their command” AND “other persons
under their control”
•
• a) prevent, suppress, report to competent authorities breaches of the Geneva Conventions and AP I
•
• b) commensurate with their level of responsibility, ensure that their subordinates are aware of
their obligations under the Conventions and AP I
•
• c) if the superior is aware that a breach of the Conventions is or will be committed, he must
initiate steps to prevent violations and initiate disciplinary or penal action against subordinate

•STATUTES of ICTY and ICTR
•Art. 7(3), ICTY:  “The fact that any of the acts referred to in articles 2 to 5 of the present
Statute was committed by a subordinate does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was about to commit such acts or had done so and
the superior failed to take the necessary and reasonable measures to prevent such acts or to punish
the perpetrators thereof.”
•
•Art. 6(3), ICTR:  “The fact that any of the acts referred to in articles 2 to 4 of the present
Statute was committed by a subordinate does not relieve his or her superior of criminal
responsibility if he or she knew or had reason to know that the subordinate was about to commit
such acts or had done so and the superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof.”
•

•‘[A] position of command is indeed a necessary precondition for the imposition of command
responsibility. However, this statement must be qualified by the recognition that the existence of
such a position cannot be determined by reference to formal status alone. Instead, the factor that
determines liability for this type of criminal responsibility is the actual possession, or
non-possession, of powers of control over the actions of subordinates’ (ICTY Trial Chamber, Delalic
and others
16 November 1998, at para. 370.)

•“depending on the circumstances, a commander with superior responsibility under article 7(3) may
be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual
commanding a small group of men” as long as they exercise effective control over their subordinates
(Prosecutor v. Kunarac et al, at para. 398.)
•
•“both those permanently under an individual’s command and those who are so only temporarily or on
an ad hoc basis can be regarded as being under the effective control of that particular
individual”. (Ibid., at para. 399.)
•

•The existence of a superior-subordinate relationship
•The superior knew or had reason to know that the criminal act was about to had been committed
•The superior failed to take the necessary and reasonable measures to prevent the criminal act or
punish the perpetrator thereof.
•
•(Delalic and others, 16 November 1998, at para. 346.)
•

•Main purpose of this doctrine is regulation of military and civilian discipline
•Form of omission liability : a lawful duty to act, fails to do so. Resposibility for own
punishable conduct (versus responsibility for acts of others)
•Formal characterization of authority relationship not required (both de facto and de iure)
•Knew (actual knowledge): direct or circumstantial evidence
•Had the reason to know (contructive knowledge) - Celebici case
•Paramiltary or self-proclaimed governments – role of de facto
•Duty to prevent or punish- independent existence of two different obligations, cannot choose
whether he will prevent or only punish, came into being at different times

•Responsibility for omission - duty to act necessary
•Duty to act provides justification for moral equivalence between: failure to prevent AND active
causation
•General duty (to act) + specific rules of conduct (Arts 86 and 87 of AP I)
•Rules initially addressed to State Parties, but CR doctrine (and offences established by GCs) have
been individualized by ICL (e.g. ICC Statute) and national implementation laws.

•The commander knew
•Actual knowledge is required, i.e. knowledge ‘established through direct or circumstancial
evidence’
•Actual knowledge that the subordinates were:
• - committing or
• - about to commit crimes punished under the Statute
•
•Delalic and others, 16 November 1998, at para. 383.
•

Art 7(3) ICTY Statute and
   Art 6(3) ICTR Statute
‘Knew or had reason to know’ standard
In both cases, mens rea must be established beyond reasonable doubt
Rejection of the ‘duty to know’

•The commander had reason to know
•Requires the possession of information of a nature which at least would put him of notice of the
risk of offences by indicating the need for additional investigation in order to ascertain whether
crimes were committed or were about to be committed by subordinates-
•
•Delalic and others, 16 November 1998 at para. 383.
•

•Compare with standard in Art. 28 of the ICC Statute:
•
(i)That military commander or person either knew, or owing to the circumstances at the time, should
have known that the forces were committing or about to commit such crimes; and
•
•(ii) That military commander or person failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
•
•
•

Civilian Superior
•(b) With respect to superior and subordinate relationships not described in paragraph (a), a
superior shall be criminally responsible for crimes within the jurisdiction of the Court committed
by subordinates under his or her effective authority and control, as a result of his or her failure
to exercise control properly over such subordinates, where:
•
• (i)  The superior either knew, or consciously disregarded
• information which clearly indicated that the subordinates
• were committing or about to commit such crimes;…
•

Further Sources
•Useful Links:
•Website of the SCSL: www.sc-sl.org
•Website of the NGO Coalition on the ICC: www.iccnow.org
•Bibliography on International Criminal Law:
• Antonio Cassese, International Criminal Law (2003).
•Bibliography on the International Criminal Court:
•- Otto Triffterer (ed.), Commentary on the International Criminal Court (1999).
•- Antonio Cassese et al. (eds.), The Rome Statute of the ICC: A Commentary (2002)
•Implementation Manual: www.dfaitmaeci
•gc.ca/foreign_policy/icc/icc_implement_manual-en.asp
• Examples of implementing legislations: www.legal.coe.int/criminal/icc or
•www.iccnow.org/resourcestools/ratimptoolkit.html
•

Further Sources
•Office of the United Nations High Commissioner for Human Rights (all documents listed
•below available at http://www2.ohchr.org/english/law/ )
•(1) THE CORE INTERNATIONAL HUMAN RIGHTS INSTRUMENTS and their monitoring bodies
•
•(2) WAR CRIMES, CRIMES AGAINST HUMANITY, GENOCIDE
•Convention on the Prevention and Punishment of the Crime of Genocide
•Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity
•Principles of international co-operation in the detection, arrest, extradition and punishment of
persons guilty of war
•crimes and crimes against humanity
•Statute of the International Tribunal for the Former Yugoslavia (www.icty.org)
•Statute of the International Tribunal for Rwanda (www.icty.org)
•Rome Statute of the International Criminal Court (www.icc-cpi.int)
•
•(3) HUMANITARIAN LAW
•Geneva Convention relative to the Treatment of Prisoners of War
•Geneva Convention relative to the Protection of Civilian Persons in Time of War
•Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of
•International Armed Conflicts (Protocol I)
•Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-
•International Armed Conflicts (Protocol II
•

Further Sources
•Security Council resolutions 1325 (2000) and 1820 (2008) on Women,  Peace, and Security
(S/RES/1325 and S/RES/1820)
•Security Council resolution 1612 (2005) on Children Affected by Armed Conflict (S/RES/1612)
• Security Council resolution 1674 on Protection of Civilians (S/RES/1674)
•Information Package available at: http://peacekeepingresourcehub.unlb.org
•Country-specific information on the international humanitarian response is available on Reliefweb
at: http://www.reliefweb.int
•Standing Committee (IASC) Guidelines and References for Complex Emergencies, January 2009,
available at:
•http://www.humanitarianinfo.org/iasc/  (and click on the link “Products”)
•
•
•

Further Sources
•Charter of the United Nations
•Bulletin Observance by United Nations forces of international humanitarian law (ST/SGB/1999/13
Secretariat 6 August 1999) http://www.un.org/peace/st_sgb_1999_13.pdf
•1951 Convention relating to the Status of Refugees (available at:
•http://www.unhcr.org/protect/3c0762ea4.html )
•Guiding Principles on Internal Displacement (available at:
•http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html )
•DPKO/DFS Policy Directive on Quick Impact Projects (QIPs), 2007
•DPKO/DFS Guidelines on Joint Operational Initiatives: UN Peacekeeping Operations and the World
Bank, 2007
•

•
•
• Thank you for your attention!