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INTERNATIONAL CRIMINAL LAW

MID TERM PROJECT

SOURCES OF INTERNATIONAL CRIMINAL LAW

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,


RANCHI, JHARKHAND

SUBMITTED BY: - SUBMITTED TO:

KAMENDRA RAY MR. MAINAN RAY

VIIITHSEMESTER FACULTY OF LAW

B.A.LL.B. (HONS.) NUSRL RANCHI

ROLL NO. 328


ABSTRACT

International criminal law, though not quite as broadly codified or as widely ratified by States
as international human rights obligations, is relevant to the study and protection of international
human rights because it, generally, is aimed at punishing acts which affect fundamental human
rights, namely: life, liberty, and security. The codification of international criminal law can
also make sense in light of the fact that this body of law aims to punish actions which may have
been carried out as part of a broader State policy—meaning they are perhaps unlikely to be
punished at the domestic level for as long as the responsible administration retains power—
and/or which may threaten the sovereignty of another State—meaning the international
community has an added interest in their prosecution.

Although States’ international human rights obligations would also require investigation and
prosecution of such crimes, the international criminal law conventions and tribunals may be
seen as particularly necessary with regard to States that refuse to comply with these obligations
and/or are not (or were not at the relevant time) party to a binding mechanism for the
adjudication of international human rights violations (namely, the Inter-American, European or
African systems).

Like criminal law generally, international criminal law prohibits certain actions by individuals
and establishes the sanctions applicable when an individual commits those actions. In this
regard, criminal law (whether domestic or international) differs from human rights law and
international law generally, in that those held accountable are individuals, rather than
governments.

International criminal law can be distinguished from domestic criminal law in that the former
penalizes crimes which are particularly egregious and capable of producing wide-scale harm
(such as crimes against humanity or genocide) and those crimes that can be thought of as
‘international’ in that they involve actions traditionally carried out by States or their agents
(war crimes, acts of aggression) or are of a trans-national, or multi-jurisdictional, nature
(terrorism, drug trafficking, piracy, slave trade).
INTRODUCTION

International Criminal Law is a body of international rules designed both to prohibit certain
categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression,
terrorism) and to make those persons who engage in such conduct criminally liable. They
consequently either authorize states, or impose upon them the obligation, to prosecute and
punish such criminal conducts. ICL also regulates international proceedings before
international courts and tribunals, for prosecuting and trying persons accused of such crimes.

International criminal law is the part of public international law that deals with the criminal
responsibility of individuals for international crimes. There is no generally accepted definition
of international crimes. A distinction can be made between international crimes which are
based on international customary law and therefore apply universally and crimes resulting from
specific treaties which criminalize certain conduct and require the contracting states to
implement legislation for the criminal prosecution of this conduct in their domestic legal
system. The international core crimes, i.e., crimes over which international tribunals have been
given jurisdiction under international law, are: genocide, war crimes, crimes against humanity,
and aggression. International criminal law finds its origin in both international law and criminal
law and closely relates to other areas of international law. The most important areas are human
rights law and international humanitarian law as well as the law on state responsibility.

The purpose of international criminal law is to establish the criminal responsibility of


individuals for international crimes. Public international law is traditionally focused on the
rights and obligations of states, and thus is not particularly well suited to this task. It has
adapted through a long and slow historical process, drawing upon multiple sources.

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’1. This is probably the most renowned phrase from the judgement of the International
Military Tribunal at Nuremberg. In more than six decades which have passed since the
International Military Tribunal judgement was handed down, the recognition and the
understanding of the concept of individual responsibility under international criminal law has
been significantly reinforced and developed. Particularly, since the establishment of the
International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal

1
International Military Tribunal. Judgement: The Law of the Charter, available at
http://avalon.law.yale.edu/imt/judlawch.asp, 05.05.2017.
for Rwanda, the International Criminal Court as well as other hybrid courts or internationalised
domestic courts and tribunals such as the Special Court for Sierra Leone, the Extraordinary
Chambers of Cambodia, Kosovo Regulation 64 panels, East Timor Special Panels for Serious
Crimes, the Bosnia War Crimes Chamber, the Special Tribunal for Lebanon, the Iraqi High
Tribunal and the Serbian War Crimes Chamber.
The concept of individual responsibility under international criminal law has a much higher
profile today, than ever before in the history. The rules of international law concerning
international crimes and individual responsibility have not always appeared sufficiently clear.
Unlike national law, international law is not the ‘product of statute for the simple reason that
there is yet no world authority empowered to enact statutes of universal application.
International law is the product of treaties, conventions judicial decisions and customs which
have received international acceptance or acquiescence’2.

OBJECTIVE

 What is International criminal law?


The International Criminal Law is the substantial and procedural law on the prosecution of
international crimes.
 What is an international crime?
According to (Hostages case), US Military Tribunal, Nuremberg, 1948 “An international crime
is such act universally recognized as criminal, which is considered a grave matter of
international concern and for some valid reason cannot be left within the exclusive jurisdiction
of the State that would have control over it under ordinary circumstances.”
 Which elements must be proven in order to convict a person for an international
crime?
▪ Jurisdiction
▪ Immunities
 What else distinguishes international crimes from ordinary crimes?
▪ The context of the crimes
▪ The persons that are targeted for prosecution
 Where can international crimes be prosecuted?
▪ National courts

2
United States of America v. Josef Altstoetter et al, Trials of War Criminals before the Nuremberg Military
Tribunals under Control Council Law No. 10, Vol. III, pp. 974–975.
▪ International courts
 Which international criminal courts have existed?
IMT, IMTFE, ICTY, ICTR, ICC
 How has the concept of international criminal law changed international law?
▪ The subjects of international law
▪ State sovereignty
▪ The responsibility of individuals
According to the Nuremberg Trial: “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.”
What are the principle of legality in international criminal law?
The ICTY in the Celebici case: “The principle of legality aims at preventing the prosecution
and punishment of an individual for acts which he reasonably believed to be lawful at the time
of their commission.”
From the Nuremberg Trial: “In such circumstances the attacker must know that he is doing
wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were
allowed to go unpunished.” & “They must have known that they were acting in defiance of all
international law when in complete deliberation they carried out their designs of invasion and
aggression. On this view of the case alone it would appear that the maxim [of the legality
principle] has no application to the present facts.”
 Which are the alternative responses to prosecution of international crimes?
▪ Prosecution
▪ De facto amnesties (“Let’s not talk about it”)
▪ De jure amnesties (”You will not be punished”)
▪ Truth and reconciliation commissions (“Tell us the truth and we will forgive”)
 How do we know and understand the fundamental legal framework in which
international criminal law develops?
SOURCES OF INTERNATIONAL CRIMINAL LAW

The sources of international criminal law


 National law
 National legislation
 National jurisprudence
 International law
 Treaties defining international crimes
 Treaties creating international tribunals
 Customary international law
 General principles of law
 Jurisprudence of international tribunals
 Teachings of highly qualified publicists
The most authoritative conventional provision on the sources of international law in general is
still Article 38(1) of the ICJ Statute. That is because the Statute constitutes an integral part of
the UN Charter and the ICJ is the principal judicial organ of the United Nations. That provision
reads as follows: The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:

 international conventions, whether general or particular, establishing rules expressly


recognized by the contesting States;
 international custom, as evidence of a general practice accepted as law;
 the general principles of law recognized by civilized nations;
 Subject to the provision of Article 59,3 judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of the rules of law.4
International criminal law is a subset of international law. So its sources are like, those of
international law. The Nuremberg and Tokyo trials signalled the birth of present-day
international criminal law, i.e., the prosecution of individuals for international crimes before
international tribunals.

3
Article 59 of the Statute reads: ‘‘the decision of the Court has no binding force except between the parties and
in respect of that particular dispute.’’
4
Paragraph 2 of Art.38, which reads ‘‘this provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto’’, does not reflect sources of international law.
In the early nineties of the previous century international criminal law received a major
stimulus with the establishment of the International Criminal Tribunal for the former
Yugoslavia and the International Criminal Tribunal for Rwanda by the United Nations Security
Council. Also the creation of various internationalized or mixed criminal courts and the
proposals of the International Law Commission, which resulted in the creation of the
International Criminal Court in 2002, contributed to the rapid development of international
criminal law during the last two decades. It is not clear whether Article 38 was, at the time of
its formulation, designed to provide an exhaustive list of sources to be applied by the Court, but
today it is hardly considered a complete statement of the sources of international law.5
There may, however, be a question as to what is meant by sources, a term not included in the
Article itself. The essential thing is that Article 38 is of vital importance because it provides a
reasonably clear and precise statement of the most significant sources to be applied, directly by
the International Court of Justice and indirectly by other organs that may decide international
disputes. Article 38 has therefore been accepted as authoritative by the Court and by the States
themselves.

Some legal Maxim in International Criminal Law

Nullum crimen sine lege scripta: the basis of a criminal charge should be either in the national
law of a State, or in a statute of an international criminal court or tribunal. In both instances, the
matter should be subject to a rule of positive law in written form. This excludes incriminations
based exclusively on (unwritten) customary law.
Nullum crimen sine lege certa: the elements of crimes must be precisely defined by a rule. This
forbids the criminal judge to resort to analogy. To this end, the Assembly of States Parties to
the Rome Statute of 1998 has adopted the Elements of Crimes, to be applied by the ICC.
Nullum crimen sine lege previa: a crime must be forbidden by law at the time of its
commission. Retrospective application of new criminal laws is forbidden, unless they were
more favourable to the accused (lex mitius).
Nulla poena sine lege: the penalties for specific crimes should also be provided by a legal rule
in advance. It is hard to strictly respect this requirement in international criminal proceedings.
The scale of prison sentences for the crimes within the competence of international criminal
tribunals have so far not been provided in their Statutes.

5 Martin Dixon: Textbook on International Law (1993), pp. 19–20.

6 Martin Dixon: Textbook on International Law (1993), pp. 31–32.


The general principle of all criminal law-nullum crimen nulla poena sine lege—was already
mentioned. Many call it the principle of legality (in its narrow sense).12 The said principle is an
achievement from the 1789 French Declaration of the Rights of Man and of the Citizen and is
embodied in the constitutions of a great many of States as being one of the guarantees of the
rights of individuals.13 Even if, strictly speaking, it is not a peremptory norm of general
international law (jus cogens), it is better to observe it than to undermine its importance in any
criminal proceedings.
Hence, in criminal law, either municipal or international, written sources have the preference
over unwritten ones. This means that in international criminal law, customary rules cannot have
the same importance as in the international legal order of sovereign States in which a near
totality of rules of general international law is of customary character.

International criminal judges do not have such a large power. As stated, they are strictly
forbidden to resort to analogy, or to apply new rules of positive criminal law retrospectively to
the accused, or even to create new rules of ‘‘customary law’’ and, by that, cure the
imperfections in public international law.

TREATY:
ICL has many treaty sources. These range from the Genocide Convention and the grave
breaches provisions of the four 1949 Geneva Conventions to relevant human rights treaties and
treaties that are not as widely ratified as the Geneva Conventions, including the:6

▪ Rome statute of the International Criminal Court


▪ 1977 Additional Protocol II to the Geneva Convention
▪ Convention for the protection of human Rights and Fundamental Freedom (European
Convention on Human Rights);
▪ Pact on Security, Stability and Development in the Great Lakes Region (2006) and its
Protocol on the Prevention and the Punishment of the Crime of Genocide, War Crimes and
Crimes against Humanity and all forms of Discrimination (Great Lakes Pact and Protocol);
▪ Convention: against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

6
International Court of Justice, Statute of the International Court of Justice, (established in the UN Charter
(1945) entered into force (1946).
Depending on the jurisdiction, in-force treaties that have been ratified (or acceded to) by the
relevant state can be a direct source of applicable law. In jurisdictions where treaties cannot be
a direct source of law, they often can serve as aids to interpretation of other applicable law.
At the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR
(International Criminal Tribunal for Rwanda), treaty law is less important than custom as a
direct source (although some of the crimes in their Statutes are copied verbatim from treaties,
for example, the Genocide Convention).
The Statute of the ICTR inherently adopts the position that treaties can be used as a source for
international criminal law, since it criminalised violations of the Additional Protocol II to the
Geneva Conventions, the whole of which was not considered to reflect customary international
law at the time.
The ICTY has laid down clear rules for when treaties can be a direct source of international
criminal law (at least at that court), holding that treaties can be applied that:

▪ Were unquestionably binding on the parties to the conflict at the time of the alleged offence
and
▪ Were not in conflict with or derogating from peremptory norms of international law.
However, the ICTY Appeals Chamber was careful to note that although treaties can be applied
as a direct source of ICL, “in practice the International Tribunal always ascertains that the
relevant provision is also declaratory of custom”. This ruling is specific to the ICTY, and will
not necessarily apply in other international criminal courts (e.g., it does not apply at the ICC) or
in national jurisdictions.

Extradition
Extradition is the formal surrender by a State (the requested State) of a person present in its
territory to another State (the requesting State) that seeks the person either in order to prosecute
him or her or to enforce a sentence already handed down by its courts. Extradition is the oldest
form of international cooperation in criminal matters and is recognized as an effective
instrument of international cooperation in law enforcement. As a means of cooperation that
directly affects the freedom of individuals, extradition is seen as also the most complex
mechanism and the one that raises the most challenges, in particular between States with
different legal traditions. Extradition procedure: overview and comparative aspects
The way the extradition process depends mainly on the national law of the requested State. The
procedure therefore varies from one country to another, to a greater or lesser extent, according
to each country’s legal tradition. Common-law countries share similarities in their procedures,
but these differ from those of civil-law countries, for example. This results in many differences
in the positive law and procedural law of each country, these differences may obstruct efficient
extradition. The timeline below shows the main stages of the extradition procedure.

Treaties as a source of law in international criminal proceedings


In the international legal order of sovereign States, treaties are the main source of what is
called ‘‘particular international law’’. National criminal judges in their capacity of State organs
are obliged to apply treaties in force for their respective country. This obligation relates
especially to treaties in the domains of human rights, including the guarantees of a fair trial,
immunities of some foreign persons and international judicial co-operation including
extradition.
Unlike national courts, international criminal tribunals are not organs of any particular State
and they are not bound to apply treaties. The principle pacta sunt servanda is not applicable
there as such, unless a tribunal itself was established by a treaty. In these cases, such as the
London Agreement of 1945 or the Rome Statute of 1998, conventional instruments are
constitutional acts of these bodies, much in the same manner as the UN Charter is for the
United Nations Organization. In relation to this subject matter, one should distinguish the
violation of some treaties as consisting of particular crimes from the respect of treaties as one
of the sources of law to be applied by international judges. According to Article 227 of the
1919 Versailles Peace Treaty, the Allied and Associated Powers publicly accused the former
German Emperor William II ‘‘for a supreme offence against international morality and sanctity
of treaties’’.
In Article 6 of the London Agreement, it was again provided, among the Crimes against
Peace, waging war ‘‘in violation of international treaties, agreements and assurances’’. Exactly
the same crime under the same heading was set forth in Article 5 of the Charter of the
International Military Tribunal for the Far East. Because the prosecution of aggression is not in
the competence of any of the current international tribunals, the violation of treaties does not
figure as a specific crime in their respective statutes. As a potential source of law for
international criminal judges, treaties can be viewed from a different aspect. The question is
whether an accused can be punished for the violation of 34 However, if a State has assumed the
obligation by a treaty to prosecute criminal acts, such as, e.g. genocide, or the obligation
concerning non-applicability of the statute of limitations to war crimes and crimes against
humanity, national judges cannot give effect to these legal commitments before the adoption of
the necessary national legislation.

CUSTOMARY LAW:

Custom is generally understood as consisting of:

▪ State practice and


▪ opinio juris.
The state practice must be consistent, uniform and general among the relevant states, although
it does not have to be universal. Opinio juris can be defined as a general belief or acceptance
among states that a certain practice is required by law. This sense of legal obligation, coupled
with state practice, differentiates custom from acts of courtesy, fairness or mere usage Treaties
only bind states that are parties to them, whereas general customary law binds all states and
“local” custom binds as few as two states only. Much of the content of substantive ICL exists in
customary law, whether or not the same rules simultaneously exist in treaty law. However, it is
generally more difficult to determine the content of custom than that of treaty law.
Custom can originate in treaties, and treaties can constitute evidence of custom. Treaties can
also be an aid to interpreting custom. The same rule can exist simultaneously in treaty law and
custom; the definition of genocide and the grave breaches provisions of the Geneva
Conventions are examples. Treaties sometimes codify customary law existing at the time. The
Rome Statute of the ICC does so to a certain degree, but some of its provisions are more
restrictive than custom, while others are less restrictive than custom. Likewise, some elements
of the definition of crimes in the ICTY and ICTR Statutes go beyond what was customary law
at the time.
The ICTY Tadid case provides an excellent example of how the ICTY Appeals Chamber
surveyed a broad range of sources to determine that Article 3 of the ICTY Statute, which
provides the ICTY with jurisdiction over the laws and customs of war, applied to both internal
and international conflicts under customary international law. In making this determination, the
appeals chamber reviewed many sources, including: a report of the Secretary-General of the
UN, statements from UN Security Council meetings, the object and purpose of Article 3 and of
the creation of the ICTY, a historical review of cases before the ICJ, a historical review of
previous conflicts, public statements of politicians, instructions from generals to soldiers found
in an army manifestos/instructions and publications from rebel groups. The chamber considered
that reliance should be placed primarily on official pronouncements of States, military manuals
and judicial decisions.
* Note that The ICTY and ICTR Statutes are not treaties, but are resolutions of the UN Security
Council adopted under the enforcement provisions of Chapter VII of the UN Charter. However,
the binding power of the resolutions stems from Article 25 of the UN Charter, a treaty.

The ICTY Martid case also provides an illustration of how the ICTY has approached an
analysis of customary international law. The accused was charged with ordering shelling
attacks that killed and wounded civilians. The crime fell under Article 3 of the ICTY Statute
even though it was not specifically mentioned in the article. The ICTY trial chamber therefore
had to determine whether the alleged actions constituted a crime under customary international
law.

In its analysis of customary international law, the ICTY, inter alia, analysed whether customary
international law included a prohibition on reprisals against the civilian population or
individual civilians. It reviewed the text of various instruments, including UN General
Assembly resolutions and treaties, including AP I and AP II. 7 Judicial decisions (both
international and national) and learned writings can also be used to establish the content of
custom, although careful consideration has to be given to whether they correctly state
customary law.

GENERAL PRINCIPLES OF LAW

Where no rule in custom or treaty law could be found, the ICTY has on occasion—and usually
with some circumspection—considered general principles of law in search of an applicable
International Criminal Law rule. Where a principle “is found to have been accepted generally
as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule
of international law would seem to be fully justified”.

Not every nation’s practices need to be reviewed—only enough to show that most nations
within the various systems of law (e.g., common law and civil law) recognise a principle of
law. Where a principle “is found to have been accepted generally as a fundamental rule of
justice by most nations in their municipal law, its declaration as a rule of international law

7
Martid, Case No. IT-95-11-R61, Decision on the Review of the Indictment Under Rule 61, 8 March 1996,16 –
17, 19
would seem to be fully justified”8. Where national approaches are too divergent, such a finding
is precluded.
For example: in a joint separate opinion to the appeals judgment of the ICTY’s Erdemovid case
two judges surveyed the statutory laws and jurisprudence of twenty-seven nations before
determining there was no “consistent concrete rule which answers the question of whether or
not duress is a defence to the killing of innocent persons”.

It is clear that general principles of law recognized by civilized nations may be a source of
international law, it is far less clear what general principles of criminal law have been
recognized by the major legal systems of the world. Identifying them is an exercise in
comparative law. The task is complicated by the fact that general principles of criminal law
have developed in national systems which vary a great deal. In addition to the differences
between the two best-known models, i.e. common law and civil law, there are also legal
systems reflecting Islamic law and many other variations. International criminal law has had
very little time to develop independently of that diverse array of national legal systems, as most
of that development has come during the past 20 years. In general, there is a lack of clarity and
consensus about the relationship between general principles of law, general principles of
international law, general principles of criminal law, and general principles of international
criminal law.

General principles of law recognized by civilized nations are, as noted above, a source of
international law, whereas general principles of international law are, at least arguably, ‘the
principles inherent in the international legal system’. What Cassese refers to as ‘general
principles of criminal law recognized by the community of nations’ is presumably a subset of
the general principles of law mentioned above which can be identified by comparative analysis,
but it seems clear that there is as yet no consensus on a complete set of such principles. The
general principles of international criminal law will therefore need to be built and agreed upon
over time. The ‘general principles of criminal law’ set out in the Rome Statute of the
International Criminal Court were the subject of diplomatic negotiations and will provide the
basis for further development of relevant general principles in the future.

8
United Nations War Crime Commission, Law Reports of Trials of War Criminals: United States v. Wilhelm
List and others, vol. VIII, 34, 49 (1949).
JUDICIAL DECISIONS:

The ICTY and ICTR refer to and generally follow their earlier jurisprudence, although they are
not always bound to do so. Trial chambers are not obligated to follow the decisions of other
trial chambers, but they must follow the decisions of the appeals chamber. The appeals
chamber may depart from its own prior decisions, but only in exceptional situations when it is
in the interests of justice to do so.9

The ICTY and ICTR have also referred to judicial decisions of national courts and other
international courts, including the ICJ, the International Military Tribunal at Nuremberg
(Nuremberg tribunal), other post-World War II courts, the European Court of Human Rights
(ECtHR). They have usually done so when looking for evidence of custom. They have
similarly considered the publications of international authorities, including scholarly writings
and reports of relevant bodies such as the International Law Commission and International
Committee of the Red Cross (ICRC).

Other international, hybrid and national courts often adopt the same approach. They do not
apply ICTY or ICTR decisions as law. But they often consider, for example, ICTY and ICTR
findings on customary law or general principles of law, what meaning the ICTY and ICTR
gave to a particular treaty provision, or the relevance and persuasiveness of ICTY and ICTR
reasoning when interpreting their own law.10

Hierarchy Between Custom And Treaty Law, And Jus Cogens

Generally, there is no hierarchy between treaty law and custom. Where a rule derived from one
source conflicts with a rule derived from the other, rules of interpretation such as lex posterior
derogat priori (a later law repeals an earlier law), lex posterior generalis non derogate prior
speciali (a later general law does not repeal an earlier special law) and lex specialis derogate
legi generali (a special law prevails over a general law) are used for resolution. As general
principles of law are used to fill gaps in treaty and customary law, it is subordinate to treaty and
customary law. Neither custom nor treaty law may conflict with jus cogens, i.e. peremptory
norms of general international law. As jus cogens reflect the fundamental principles from
which there can be no derogation, treaty law and customary law must always be interpreted

9
Georges Anderson Rutaganda, Case No. ICTR-96-3-A, Appeal Judgement, 26 May 2003,
10
Statute of the Special Court for Sierra Leone, Art. 20
consistently with norms that have attained this peremptory status. Examples of jus cogens are
the prohibition of genocide and torture.

The Sources Of International Criminal Law As Compared With The Sources Of


Domestic Law
International conventions and international custom are the most important sources of public
international law, and even more so where international criminal law is concerned. There is a
great need to ensure that individuals prosecuted and tried for international crimes enjoy a fair
degree of fundamental human rights guarantees. There is a great difference, however, between
domestic criminal law and international criminal law. In the domestic criminal law of any
advanced modern society written sources of law in the form of statutes enacted by the
legislature (statute law) have practically assumed a monopoly status as the basis for criminal
liability and punishment. Although not true in theory, it is in fact also true for the Common
Law countries, which have already codified most of their judge-made criminal law.

International criminal law presents a quite different picture. Firstly, a great deal of international
conventions now in force can be traced to earlier customary law, for example a substantial part
of the 1949 Geneva Conventions on war crimes and humanitarian law principles. Secondly,
international criminal liability can be based on customary law as such, provided the custom
applied fulfils the requirements of “a general practice accepted as law“, as laid down in Article
38 of the Statute of the International Court of Justice, cf. also Article 3 of the Statute of the
Hague International Criminal Tribunal, which grants equal standing to the laws and customs of
war as a basis for trial and conviction. Thirdly, but somewhat reluctantly, it appears that even
today criminal liability for international crimes can be based on the unwritten general
principles of law recognized by civilized nations (cf. also the formulation of Article 7.2. of the
European Convention on Human Rights) or by the community of nations (cf. the formulation of
Article 15.2. of the United Nations International Covenant on Civil and Political Rights).

Already in the Judgment of the Nuremberg International Tribunal September 30, 1946, the
application of the general principles of law proved to be a difficult issue, particularly with
relation to crimes against humanity and crimes against peace, which were based on rather poor
sources of law until the creation of the Charter of the International Military Tribunal, signed as
an annex to the London Agreement of August 8, 1945, that is after the war. It was argued on
behalf of the defendants that it is a fundamental principle of all law – international and
domestic – that there can be no conviction or punishment for crime without a pre-existent law
(nullum crimen sine lege, nulla poena sine lege). It was submitted that ex post facto
(retroactive) punishment is abhorrent to the law of all civilized nations, that no sovereign power
had made aggressive war a crime at the time when the alleged criminal acts were committed,
that no statute had defined aggressive war, that no penalty had been fixed for its commission,
and no court had been created to try and punish offenders. The Tribunal responded to these
arguments, stating:

“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation
of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those
who in defiance of treaties and assurances have attacked neighbouring states without warning is
obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and
so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go
unpunished.”
The subsequent reasons of the Tribunal are concerned with the culpability or subjective guilt
(mens rea) of the defendants, including a presumption of their knowledge of the wrongful and
unlawful conduct, considering the positions they had occupied in the German Government (res
ipsa loquitur reasoning). We note the heavy emphasis on the key argument of a principle of
justice, which here relates to morality and natural law rather than to modern human rights
guarantees for the defendants. But it would, even by these standards, hardly have fulfilled the
requirements of morality and justice if mens rea had not been established. The Tribunal
continued by defining the nature of the general principles of law:

“In interpreting the words of the pact, it must be remembered that international law is not the
product of an international legislature, and that such international agreements as the Pact of
Paris have to deal with general principles of law, and not with administrative matters of
procedure. The law of war is to be found not only in treaties, but in the customs and practices
of states which gradually obtained universal recognition, and from the general principles of
justice applied by jurists and practised by military courts. This law is not static, but by
continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do
no more than express and define for more accurate reference the principles of law already
existing.” The last part of this quotation is of great importance as a response to sharp criticisms
regarding the ex post facto element in the defence argumentation.
The Report of the U.N. Secretary-General 3 May 1993 (S-25704), having the function of
explanatory notes to the Statute of the Hague International Tribunal, contains an implicit
recognition of the Nuremberg ruling, cf. item 35: “The part of conventional humanitarian law
which has beyond doubt become part of international customary law is the law applicable in
armed conflict as embodied in:… and the Charter of the International Military Tribunal of 8
August 1945.”
The quotation above directly relates to the interactions between the two principal sources of
international law: international conventions and international custom. But, simultaneously, it
reflects the recognition by the United Nations of the Charter of the Nuremberg International
Military Tribunal as a fully valid legal source in international criminal law. The Charter, in
turn, was inter alia based on the general principles of law, which, by the Tribunal, were
regarded as already existing at the time when the alleged criminal offences were committed.
Furthermore, a few other remarks in the Report indicate that the sources of law applied by the
Nuremberg Tribunal are, at least by now, practically undisputed as a legal basis for its
judgment. By Resolution 827 (1993), the Security Council adopted the Report of the Secretary-
General and decided to establish the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991.

The Interrelationship between Conventional and Customary International Law


Although conventional and customary international criminal law are equally binding (no formal
priority rule), their legal effects are of different scope. Strictly speaking, international
conventions are only binding upon those States (and their citizens) which have ratified them.
From this point of view the 1949 Geneva Conventions are the most international of all
conventions, having been ratified by almost every country in the world. The recurrent lack of
conventional binding authority over all the States involved tends to create serious problems and
prevent necessary rules from coming into force within a reasonable period of time. Customary
law, on the other hand, applies to any State and to any citizen for that matter, irrespective of
whatever conventions the various States may have ratified, as well as to new States that are not
parties to any conventions and have not contributed to the development of customary law,
either. Customary law is very useful, in case particular States or even most of them cannot
agree on the issue yet to solve. In some instances, customary law may become a rule of jus
cogens, i.e. a fundamental rule binding on everybody, irrespective of the existence of other
sources of law. Customary law may derive from one or more conventions, but is also quite
often an unwritten source of law from the beginning, which later on may get codified in
international conventions, as have many customs of war. The conventions differ a lot from the
statutes as their counterparts in domestic law in that their coming into force does not depend on
the consent of the citizens, to whom they may apply.

In order that a custom may constitute a binding rule for the international community, but not
necessarily a rule of jus cogens, it must fulfil the requirements embodied in “a general practice
accepted as law”, to quote the wording of Article 38 of the Statute of the International Court of
Justice. The following requirements, known as the elements of customary law, must be
established beyond a reasonable doubt:

▪ The existence of State practice, as established by evidence of actual State activity,


statements whether made in the abstract or not, diplomatic correspondence, U.N. General
Assembly resolutions and so forth.
▪ Consistency of practice (constant and uniform).
▪ Generality of practice, common to a significant number of States.
▪ Opinio juris, i.e. States must recognize the practice as binding upon them as law.
As secondary elements, somewhat more ambiguous, may be mentioned the duration of practice
and the practicability (suitability) of a rule based on custom.11 The above mentioned Report of
the U.N. Secretary-General contains a concise remark on the interrelationship between
conventional and customary international law, in a few general comments he made on the
concept of international humanitarian law, which is to be applied by The Hague International
Tribunal (cf. item 33):

“This body of law exists in the form of both conventional law and customary law. While there
is international customary law which is not laid down in conventions, some of the major
conventional humanitarian law has become part of customary international law.”

In his Report prior to the establishment of the Hague International Tribunal, the U.N.
Secretary-General furthermore expressed the view that the application of the principle nullum
crimen sine lege requires that the international tribunal should apply rules of international
humanitarian law which are beyond any doubt part of customary law so that the problem of
adherence of some but not all States to specific conventions does not arise. This would appear
to be particularly important in the context of an international tribunal prosecuting persons
responsible for serious violations of international humanitarian law (cf. item 34). What exactly

11 For additional reading, see e.g. Martin Dixon: Textbook on International Law (1993), pp. 24– 30; Gunnar G.
Schram: Ágrip af Thjóðarétti (1986), pp. 20–22.
constitutes the international humanitarian law to be applied by The Hague International
Tribunal will not be dealt with for the time being.

Sources of International Criminal Law against the Background of Human Rights


Conventions

A study of the human rights conventions reveals that they place international law in a position
equal to that of national law, as stated in Article 7.1. Of the European Convention on Human
Rights and in Article 15.1. Of the U.N. International Covenant on Civil and Political Rights. It
can be taken for granted that international law in this context will cover international
conventions as well as international customary law, whether written or unwritten. This also
means, comparing paragraphs 1 and 2 of the Articles above that the (unwritten) general
principles of law recognized by civilized nations or by the community of nations are not
included in paragraph 1. They are reduced to an inferior position in paragraph 2 of both
Articles. These second paragraphs are formulated as an exception to the principle stated in
paragraph 1. It runs as follows in the European Convention, Art. 7.2:

“This Article shall not prejudice the trial and punishment of a person for any act or omission
which at the time when it was committed, was criminal according to the general principles of
law recognized by civilized nations.”

The formulation of Article 15.2. Of the International Covenant on Civil and Political Rights is
practically identical except for the final words of the text, “the community of nations” instead
of “civilized nations”. The first one is obviously better chosen.

Article 7, paragraphs 1 and 2, of the European Convention and the equivalent provisions of the
U.N. Covenant, provide an unmistakable evidence that these international instruments apply to
international criminal law as well as to national criminal law, irrespective of the enforcement
model used. It is hard to say, whether this is true for these instruments in all respects. Keeping
in mind the rule of exception for the general principles of law and the risk that such rules may
not fulfil the requirement of the European Court of Human Rights that penal provisions should
be both accessible and foreseeable, it is certainly possible that the exception rule will disappear
from both instruments in the near future. This would entail that the general principles of law
would not do any more as a basis for criminal liability, even though the principle of no ex post
facto law were recognized, as it is presently in the above mentioned international instruments.
CONCLUSION

International criminal law is a relatively young area of law that has developed rapidly since the
ICTY was created in 1994. Looking ahead, it is likely that the law, practice and institutions of
international criminal law will continue to develop well into the future. No particular result,
however, is inevitable. It is possible that the ICC will evolve into a stronger, more independent
and effective institution of international justice; less beholden to states, and to the UN Security
Council, than international criminal tribunals have proved to be so far. It is also possible that
the ICC will fail to survive as a viable and credible institution. The dynamic development and
continuing uncertainty that together characterize the present state of international criminal law
present both challenges and opportunities for individuals, NGOs and states. The opportunity
lies in the chance to participate in shaping a key aspect of the future international order and
hopefully in making it better. The challenge is to do so in a principled way consistent not only
with the requirements of criminal justice, but also with agreed limits on international authority.

We understand the distinction drawn by international law between state responsibility and
individual criminal responsibility. It was recognised by legal positivists that a sovereign could
limit its authority to act by consenting to an agreement according to the principle pacta sunt
servanda. This consensual view of international law was reflected in the 1920 Statute of
the Permanent Court of International Justice, and was later preserved in Article 38(1) of the
1946 Statute of the International Court of Justice. International law operates only at the
international level and not within domestic legal systems—a perspective consistent with
positivism, which recognizes international law and municipal law as distinct and independent
systems.
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