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The bulk of criminal law is established and enforced under the national law of individual states, but an increasingly important body of international criminal law has also emerged. It began with a few international procedures developed by states to coordinate the enforcement of their national criminal law and has grown as international law itself has come to proscribe certain acts as crimes.
Since the end of the Thirty Year’s War in 1648, the international system has been based on state sovereignty, including each state’s jurisdiction over its own territory and citizens. A basic system of international law, defining the rights and obligations of states, was needed to recognize and validate this sovereignty, but this decentralized system has no legislature. Instead, international law must arise from one of three primary sources: treaties, customary international law, or general principles of law. Treaties make binding law for those states that agree to accept them. Rules of customary international law develop when the actions of states, their general and consistent practices, demonstrate their implied consent to those rules. General principles of law, especially when common to the laws of many nations, can also be applied at the international level. Judicial decisions and scholarly writings are recognized as secondary sources of international law, and are especially useful as indicators of changes in customary international law. International crimes, and the other substantive aspects of international criminal law, emerge from these same sources.
The traditional focus of international law has been upon the rights and obligations of states, but international criminal law regulates and punishes the conduct of individuals. Many of the crimes now defined by international law involve violations of the human rights of individuals. These too are now recognized under international law.
International criminal law, as the term is used today, includes those aspects of substantive international law that deal with defining and punishing international crimes, as well as the various mechanisms and procedures used by states to facilitate international cooperation in the investigation and enforcement of national criminal law.
Defining International Crimes
Traditionally, international law has defined very few crimes, proscribing only acts generally viewed as a serious threat to the interests of the international community as a whole or to its most fundamental values. For centuries piracy has been recognized as an international crime under customary international law. Slave trading joined the list at the end of the nineteenth century when that practice was outlawed by treaty. As technological advances, along with increasing trade and globalization, have made the world seem smaller, more such crimes have gained recognition.
The basic jurisdiction of any sovereign state includes the right to define and punish crimes. The U.S. Constitution provides (Art. I, sec. 8, col. 10) that Congress shall have power ‘‘to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations.’’ Under this provision, Congress may identify and declare criminal under U.S. law, acts that are criminal under international law. Normally this is done by legislation. The domestic law of the United States is part of the fabric of international criminal law insofar as that national law provides for the recognition and punishment of international offenses. It has generally been the practice of the United States to recognize and punish international crimes only when they are embodied in U.S.treaties and implemented by federal legislation.
Some of the key categories of international crimes are briefly discussed below, but this list is far from exhaustive.
Throughout history, the world community has sought to prevent war and eliminate aggression. In the Middle Ages, theories on ‘‘just’’ and ‘‘unjust’’ war were formulated. After World War I, efforts to curb war resulted in the establishment of the League of Nations. The Treaty of Versailles of 1919 called for the prosecutions of Kaiser Wilhelm II for waging unjust war, but efforts to carry out this provision were fruitless. The Kellogg-Briand Pact of 1928 provided for the formal renunciation of war as an instrument of national policy. This renunciation became the basis of the London Charter of 8 August 1945, which established in Nuremberg the International Military Tribunal for the prosecution of the major Nazi war criminals, and of the 1946 charter for the International Military Tribunal for the Far East, establishing a similar tribunal in Tokyo. These charters, the indictments and judgments of the tribunals, and the 1947 United Nations resolutions embodying the ‘‘Nuremberg Principles,’’ are among the legal sources for considering aggression a ‘‘crime against peace.’’ In 1946, the United Nations charter prohibited ‘‘aggression,’’ but did not define it.
No real consensus on the meaning of ‘‘aggression’’ was reached until the United Nations’ ‘‘Definition of Aggression’’ was agreed upon on 14 December 1974. The definition states that ‘‘[a]ggression is the use of armed force against the sovereignty, territorial integrity, or political independence of another state, or in any manner inconsistent with the charter of the United Nations.’’ The definition also enumerates (not exhaustively, however) seven specific examples of aggression and sets forth their legal and political consequences. Thus far, no definition of aggression has been embodied in an international convention, although the issue has been much discussed in the multilateral negotiations. The Statute of the International Criminal Court (ICC), as adopted in Rome in 1998, lists aggression as a crime within the jurisdiction of the ICC, but delays any prosecution for aggression until such time as the parties to the statute can agree upon and adopt a definition of the crime.
In 1948, only a few years after the Nazi Holocaust ended, the United Nations General Assembly adopted the text of the Genocide Convention. That text enshrined what was then a new international consensus defining and condemning the crime of genocide. The convention has since achieved very broad international acceptance. According to this definition, genocide occurs when any of five enumerated acts are ‘‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’’ The enumerated acts include killing members of the group, imposing birth control measures upon them, forcibly transferring children from the group, causing them serious bodily or mental harm, or inflicting on the group conditions deliberately calculated to bring about its physical destruction.
In ratifying the Genocide Convention, the parties ‘‘confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’’ (Article I). The parties also agree to enact the domestic legislation necessary to provide effective penalties for those committing genocide. This provision anticipates and establishes a decentralized control scheme under which the crimes defined by treaty are subject to enforcement under the national criminal law of states. At the same time, the Genocide Convention also refers to the possibility that those charged with genocide might be tried by ‘‘such international penal tribunal as may have jurisdiction’’ (Article VI). This set the stage for efforts to create a permanent International Criminal Court.
The humanitarian law of armed conflict is an outgrowth of centuries of warfare, in the course of which the rules and customs governing the conduct of hostilities have evolved. Its development has been stimulated by military experts who recognize that violence and destruction, in excess of that required by actual military necessity, is not only immoral but also counterproductive to the attainment of the political objectives for which military force is used. The term ‘‘war crimes’’ refers to a broad category of acts prohibited during armed conflict that have come to be recognized as crimes under international law. Most war crimes are defined by treaty, although some are outlawed principally by unwritten customary international law. In some cases, even where there is a treaty prohibiting a specific war crime, the treaty’s effectiveness is limited by the fact that many states have failed to sign and ratify it.
The most universally accepted source of rules on the regulation of war is the four Geneva Conventions of 12 August 1949, and their two additional protocols of 1977. Almost every country in the world, including the United States, is a party to the Geneva Conventions. These agreements codify many of the principal rules of international law relating to war crimes. In the national law of the United States, these rules have been incorporated into the Uniform Code of Military Justice. The Geneva conventions obligate each party to prevent and suppress acts contrary to their provisions. They directly incorporate an element of criminal law when they identify and define ‘‘grave breaches’’ of their terms. The parties agree (1) to enact legislation under their domestic law to criminalize these grave breaches; (2) to search for those believed to have committed them; and (3) either to prosecute them or to extradite them to another party that will do so. The enforcement regime applicable to these grave breaches became the model for other treaties establishing international crimes such as the Convention Against Torture.
Persons protected under the Geneva Conventions include wounded, sick, and shipwrecked persons, medical and religious personnel, prisoners of war, and civilians. For the most part, its protections apply to these persons only when they are in the hands of a foreign power. Specific prohibited conduct constituting war crimes includes torture, inhuman treatment, the taking of hostages, the destruction of protected property, physical mutilation, the performing of medical experiments, and refusal to release protected yet detained civilians or military personnel after cessation of active hostilities.
Crimes Against Humanity
The concept of crimes against humanity was only recently developed, emerging in the early part of the twentieth century, well after the notion of war crimes was developed in the nineteenth century. The Charter of the Nuremberg Tribunal was the first multilateral legal instrument that expressly provided for the prosecution of crimes against humanity as an offense separate from war crimes. The legal concept of crimes against humanity was developed in large part to remedy the argument that international law did not apply to criminal acts directed by a government against its own civilian population, a matter that was traditionally seen as falling exclusively within the sovereignty of a state. The fundamental element in the definition of crimes against humanity is widespread or systematic atrocities committed against civilians, for example, enslavement.
States have often objected to extending international law so far into the domestic sphere of activity, and they have proposed, at various times, a number of additional conditions limiting the application of this concept. The 1945 Nuremberg Charter, for example, authorized prosecution for crimes against humanity only if the alleged crimes were committed in execution of or in connection with a crime against peace or a war crime. It is now generally recognized that crimes against humanity can be committed in time of war or in time of peace, and even if there is no armed conflict as such. Nonetheless, states are still reluctant to endow international institutions with the authority to investigate and or prosecute crimes other than those committed in connection with international armed conflict.
The United Nations has adopted (or at least considered) a number of variations on the definition of crimes against humanity. Among these are a General Assembly resolution endorsing the standards of the Nuremberg Charter, the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, and the Statutes of the two ad hoc international criminal tribunals established by the United Nations in the 1990s. Negotiations leading to the 1998 adoption of the Statute of the International Criminal Court (ICC) produced consensus on a very narrowly defined core concept of crimes against humanity to be applied by that institution.
The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by, or with the consent or acquiescence of, a public official in order to achieve certain purposes. The most common purposes are to obtain information or a confession, punishment, intimidation, coercion, or discrimination/persecution. This definition of torture does not include pain or suffering arising only from, inherent in, or incidental to lawful penal sanctions.
The Torture Convention has achieved very broad acceptance by states. It establishes an enforcement regime similar to that of the 1949 Geneva Conventions, in which the parties agree to make torture punishable under their domestic law and also agree to take the steps necessary to prosecute those offenders within their jurisdiction.
The convention’s definition of torture is extremely narrow. It excludes acts of torture committed by individuals in a personal capacity, except in cases where there is some government, or official, complicity. The concept of torture as an international crime is correspondingly constrained.
The international community has adopted a number of treaties designed to control the illicit production, manufacture, trade, and use of drugs. The 1961 Single Convention on Narcotic Drugs, as amended by its 1972 Protocol, established the International Narcotics Control Board to regulate the production and sale of narcotics, cannabis, and coca leaves. The 1971 Convention on Psychotropic Substances extended this regime to chemical drugs. The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances defines internationally recognized drug trafficking offenses and requires the parties to criminalize them under their domestic law. The United States has signed all three of these conventions and incorporated their provisions into law.
Terrorism and Threats to Civil Aviation
Terrorism is an extremely dangerous form of criminal activity that needs suppression at both national and international levels. Unfortunately states have found it impossible, thus far, to agree on a general definition of terrorism as an international crime. The 1999 International Convention for the Suppression of the Financing of Terrorism came closer than ever before to this goal when it defined the offense of providing or collecting funds to be used to carry out terrorist acts. The European Convention on the Suppression of Terrorism, a regional initiative, incorporates a functional definition of terrorism among its parties and creates a relatively strong regional enforcement regime.
There has been broad international acceptance of effective international criminal standards relating to at least two forms of terrorism. The principal treaties on threats to civilian aviation define aircraft hijacking and a number of related crimes and require the parties to suppress them under their national law. This system has become a cornerstone of international civil aviation. Similarly, the International Convention against the Taking of Hostages outlaws this form of terrorism.
Bribery of Foreign Public Officials
The bribery of foreign public officials, first outlawed by the United States in the Foreign Corrupt Practices Act of 1977, is gaining recognition as a crime under international law. The 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions has been signed by thirty-four countries and entered into effect in February 1999. This treaty sets a general standard to be met by its parties in outlawing such bribes, but does not explicitly require states to impose sanctions on corporations as opposed to individuals. It has also been criticized for its failure to establish any uniform penalties for bribery, and for its failure to ban the tax deductibility of bribes paid to foreign officials. Another concern is that only a small number of states have ratified the treaty so far.
Other International Crimes
Other crimes defined by international conventions include counterfeiting, the theft of cultural property or archeological treasures, the crime of apartheid, and the threat or use of force against internationally protected persons such as diplomats.
International criminal law also consists of procedures for cooperation between states in the execution of their national criminal law.
Under international law, one state cannot exercise its jurisdiction on the territory of another without the agreement of that state. This means that when suspects or evidence relating to a criminal trial in one country are found on the territory of another, cooperation between them is often indispensable. The most common, and most important, of these cooperative procedures are extradition and mutual legal assistance in cases of criminal law. Other important procedures include the transfer of prisoners, the seizure and forfeiture of the illicit proceedings of crime, the recognition of foreign penal judgments, and the transfer of penal proceedings.
Extradition is by far the most important of these cooperative procedures. When a person charged with a criminal violation of the law in one state is physically present on the territory of another, it is via the extradition procedure that the former may request the surrender of the accused from the latter. There is no general obligation of states to extradite under international law, and treaties, bilateral or multilateral, provide the basis for extradition in almost all cases. Extradition treaties establish the reciprocal agreement of the states-parties to extradite, set out the procedures for requesting extradition, and outline the conditions under which it may be granted or refused.
These treaties define a range of extraditable offenses. To form the basis of a request for extradition, an offense must generally be punishable under the laws of both countries. This is known as the principle of double-criminality. Among the more controversial provisions commonly found in these treaties is the traditional rule that no person should be extradited for a political offense. This rule severely complicated efforts by the United Kingdom to extradite accused terrorists from the United States until a 1985 US-UK Supplementary Extradition Treaty clarified that such offenses were not to be regarded as offenses of a political nature.
States choose their extradition partners carefully, and need not enter into such treaties with a country if they lack faith in its judicial system. In Europe, a multilateral extradition treaty has been successful in creating a regional regime of extradition. Supplementing bilateral and multilateral extradition treaties are provisions appearing in various multilateral treaties on subjects such as hijacking and the drug traffic, which may also serve as the legal basis for the extradition process. These generally incorporate the obligation to extradite or prosecute, as discussed elsewhere in this research paper.
In one prominent 1992 case, the U.S. Drug Enforcement Administration (DEA) attempted to circumvent extradition procedures by kidnapping a suspect in Mexico and bringing him directly to trial in the United States. Mexico strongly objected, arguing that this act violated Mexican sovereignty as well as the U.S.-Mexico extradition treaty. Lawyers for the accused, a Mexican national named Hector AlvarezMachain, argued that his abduction violated the extradition treaty and that, as a result, he could not be legally tried in the United States. The U.S. Supreme Court, in a very controversial opinion (United States v. Alvarez-Machain, 504 U.S. 655 (1992)), ruled 6–3 that the fact of his forcible abduction did not prohibit his trial in a United States court for violations of this country’s criminal laws. The decision was based in part on their finding that ‘‘the Treaty says nothing about either country refraining from forcibly abducting people from the other’s territory or the consequences if an abduction occurs.’’ Mexico, and a number of other countries, reacted by expressing their desire to include an explicit ban on forcible abduction in their extradition treaties. In response, the U.S. government announced that, in the future, it would not be the policy of the U.S. to carry out such forcible abductions in lieu of extradition.
Mutual Legal Assistance
Technically extradition is a form of mutual legal assistance, but the term generally refers to mechanisms for the securing of evidence from a foreign state. This was traditionally done by means of letters rogatory (requests by the court of one country for evidence to be taken by the court of another country), which left cooperation within the discretion of the requested state. To remedy this problem, the United States has entered into several bilateral conventions that make the execution of such requests by the treaty partners a matter of course.
Defining international crimes is only a first step in using criminal law to protect the values and interests of the international community. To be effective, international criminal law must be enforced. There are essentially two ways that this can be done: indirectly, under the jurisdiction and national criminal law of states, or directly, by international courts created for this purpose.
Enforcement presupposes jurisdiction to enforce. International law recognizes that states may prosecute for crimes committed on their territory (territoriality principle), by their nationals (nationality principle), or against their nationals ( passive personality principle). Normally a state must have some such link as the basis for its exercise of jurisdiction over a crime. Universal jurisdiction is a special exception to this rule, applicable only to those, such as pirates, whose criminal acts render them hostes humani generis, the enemies of all humankind. Under the principle of universal jurisdiction, such a person may be tried not only by states linked to the crime but also by any other state. This extraordinary jurisdiction helps to remedy the inability of the decentralized international system to enforce even its most fundamental laws. It applies today to international crimes such as genocide and torture and may eventually apply to all serious international crimes.
The traditional approach calls for international crimes to be enforced and sanctioned under the national law of a state, even when the international crimes themselves are defined by a multilateral treaty. The parties to the 1949 Geneva Conventions, the Torture Convention, and a number of other international criminal law treaties are thus obliged either to prosecute offenders under national criminal law or to extradite them to a state that is willing to prosecute. The advantage of this approach is that it does not require the creation of new international institutions. Another advantage, at least from the point of view of some governments, is that it does not compromise the sovereignty or other interests of states.
The approach also has several weaknesses. It relies entirely upon states, acting pursuant to their treaty obligations, for the enforcement of international criminal law, yet it provides no mechanism for ensuring their compliance. It also fails to provide a mechanism for the resolution of conflicts between states relating to enforcement, and fails to provide fair trial or other safeguards for alleged offenders.
A unique and innovative model of enforcement was developed to try two Libyan nationals charged with planting the bomb that killed 270 people, mostly Americans and Britons, aboard Pan Am Flight 103 over Lockerbie, Scotland, in 1988. Libya refused to extradite the suspects to the United States, or to Scotland, for trial as demanded by the United Nations Security Council. After enduring years of economic sanctions, Libya finally handed them over for trial by a Scottish court sitting in the Netherlands. One suspect was convicted, the other was acquitted.
The possibility of creating an international criminal court has been discussed for centuries but, until recently, the only major precedents were the international military tribunals of Nuremberg and Tokyo of the 1940s. These tribunals pioneered the use of international criminal courts to hold individuals responsible for serious international crimes. From 1951 to 1953, the United Nations made futile efforts to foster an international criminal court. There was little or no progress on this front for the next forty years. Many governments were concerned that creating an international court with jurisdiction to try national officials for international crimes could compromise state sovereignty. The government of the United States was among those states that shared this view until reports of shocking international crimes brought the issue of international criminal courts back onto center stage.
In 1994 the International Criminal Tribunal for the Former Yugoslavia (ICTY) was created ad hoc by the U.N. Security Council, in response to the atrocities being committed in that region and, in 1995, a second such institution, the International Criminal Tribunal for Rwanda (ICTR), was created on the same model. They represented a major step forward from the Nuremberg and Tokyo precedents. The Nuremberg and Tokyo tribunals were international military tribunals created by the victorious powers of World War II. The ICTY and ICTR were created by the United Nations, and were thus international tribunals in the fullest sense. The intervening development of the international law of human rights also meant that the ICTY and ICTR would need to respect the international fair trial standards that had developed since the post–World War II era.
Each of these institutions could only prosecute for international crimes committed within a specific territory, and neither threatened the interests of states outside the regions concerned. Despite their limitations, the ad hoc tribunals functioned well enough to lay the groundwork for the creation of a permanent International Criminal Court (ICC). Their indictments and decisions did much to clarify the law governing crimes against humanity, genocide, and war crimes. They also demonstrated that international tribunals could act fairly in investigating and prosecuting international crimes.
On 17 July 1998, after three years of periodic preparatory negotiations and a five-week diplomatic conference in Rome, 120 states voted to approve the text of a treaty creating a permanent ICC with jurisdiction to prosecute for genocide, crimes against humanity, and the most serious war crimes. The ICC will officially come into existence when sixty countries have ratified this treaty. Even as the United States signed the ICC treaty in December 2000, there was substantial opposition to the treaty in the U.S. Senate, which must grant its advice and consent before the United States can ratify. The track record of the new ICC may eventually assuage these concerns.
International criminal law has long been limited by the fact that criminal lawyers and criminal law judges rarely work with international law or international cases, while international lawyers and international judges tend to have little experience with criminal law. This changed as the work of the ICTY and ICTR, and the negotiations leading to the birth of a permanent ICC, brought the world’s top specialists in international law into contact with specialists in criminal law from the various nations. The result was an unprecedented period of progress for international criminal law.
The jurisdiction of the soon-to-beestablished ICC will initially be very limited, but supporters hope that it will grow into a strong, independent, and effective institution of international justice. Critics oppose creating a stronger and more comprehensive system of international criminal law, fearing the loss of state sovereignty and national freedom of action. In light of this persistent attitude, it remains to be seen how far and how effectively the institutionalization of international criminal law will progress in the future.
The practices of state prosecutors in matters of international criminal law have developed in parallel to the development of international criminal courts. In 1999, a Spanish prosecutor’s bold attempt to extradite Chilean General Augusto Pinochet from the United Kingdom marked the beginning of a radical new willingness of national authorities to prosecute for international crimes committed on the territory of another state. It also led to a historic decision by the House of Lords affirming that even a former head of state could be prosecuted for the international crime of torture. That case is likely to inspire more such prosecutions in the future, a trend that may prove as significant for the development of international criminal law as the establishment of the permanent International Criminal Court.
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