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MARGARET M. DEGUZMAN*
INTRODUCTION ............................................................................... 19
I. A VAGUE CONCEPT PROPELS THE DEVELOPMENT OF
INTERNATIONAL CRIMINAL LAW .......................................... 23
A. The Birth of International Criminal Law at
N uremberg ................................................................. 25
B. Phase II: The Ad Hoc International Criminal
T ribunals ...................................................................... 30
C . Phase III: The ICC ...................................................... 31
D. The post-Rome Conference International Tribunals ....... 35
II. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL
36
L AW ....................................................................
A. Evidence of Expansion ............................................... 38
i. Broadening Harm s .................................................. 38
ii. Decreasing Culpability ........................................... 44
B. Predicting Continued Expansion ................................. 48
i. The Broad Goals of International Criminal Courts .... 48
ii. Identities and Incentives of International Judges
and Prosecutors ...................................................... 50
III. THE CONSEQUENCES OF EXPANSION .................................... 53
A. Expansion's Consequences for Sovereignty ................ 54
B. Increased Risk of Substantive Unfairness to
D efendants ................................................................. 61
C ON CLU SION .................................................................................. 65
INTRODUCTION
1. Some commentators argue that the Nuremberg tribunal was not truly international
since it was established by agreement among a limited number of nations. See, e.g., Makau
Mutua, From Nuremberg to the Rvanda Tribunal: Justice or Retribution? 6 BUFF. HUM.
RTS. L. REV. 77, 79-80 (2000) (quoting Kenneth Anderson, Nuremberg Sensibility: Telbrd
Taylor's Memoir of the Nuremberg Trials, 7 HARV. HUM. RTs. J. 281, 289 (1994))
(describing Nuremberg tribunal as "'fundamentally an expression of a peculiarly American
legal sensibility"' and as an "orchestrated and highly manipulated forum"); Jonathan
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Turley, Transformative Justice and the Ethos of Nuremberg, 33 Loy. L.A. L. Riv. 655, 658
(2000) ("Nuremberg can easily be viewed as an American proceeding due to its heavy
reliance on American prosecutors and trial process rules."). However, the tribunal was
international in the sense that it asserted the authority to interpret and apply international
law, including the newly minted crimes against peace and crimes against humanity.
2. The Rome Statute, which has been ratified by 121 state parties and signed by
another sixteen, exemplifies this widespread acceptance of international tribunal
adjudication of serious crimes. See Rome Statute of the International Criminal Court, pmbl,
U.N. Doc. A/CONF. 183/9 (July 17, 1998) [hereinafter Rome Statute] ("Determined ... to
establish an independent permanent International Criminal Court ... with jurisdiction over
the most serious crimes of concern to the international community as a whole."); see also
About the Court: ICC at a Glance, INTERNATIONAL CRIMINAL COURT, http://www.icc-
cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/ (listing state parties); Rome Statute
of the InternationalCriminal Court, UNITED NATIONS TREATY COLLECTION, http://treaties.un
.org/Pages/ViewDetails.aspx?src TREATY&mtdsg-no XVIII-10&chapter--18&lang en
(providing current status of signatories).
3. See, e.g., Pablo Castillo Diaz, The ICC in Northern Uganda: Peace First,Justice
Later, 2 EYES ON THE ICC 17 (2005) ("It is widely acknowledged that the moral
commitment to protect the most fundamental human rights at a global scale trumps state
sovereignty and the legal pillars that sustained classic international law.").
4. See Committee on International Human Rights Law and Practice, International
Law Association, FinalReport on the Exercise of UniversalJurisdictionin Respect of Gross
Human Rights Offences, 2 (2000) ("Under the principle of universal jurisdiction a state is
entitled or even required to bring proceedings in respect of certain serious crimes,
irrespective of the location of the crime, and irrespective of the nationality of the perpetrator
or the victim."); Kenneth C. Randall, Universal Jurisdiction under International Law, 66
TEX. L. Riv. 785, 790-91 (1988) (asserting that "all states have the right to assume
universal jurisdiction over ... war crimes, hijacking and sabotage of aircraft, the taking of
hostages, crimes against internationally protected persons, apartheid, and torture");
Velasquez Rodriguez Case, Judgment, Inter-Am. Ct. H.R. (ser. C). No. 1, 19 (June 26,
1987) (discussing Inter-American Commission on Human Rights recommendation to
Government of Honduras to investigate, prosecute and punish those responsible for
violations of right to life and right to personal liberty).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
Rwanda").
9. Rome Statute, supra note 2, art. 17.
10. See Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the
InternationalCriminal Court, 33 MICH. J. INT'L L. 265, 283 (2012) [hereinafter deGuzman,
Choosing to Prosecute].
11. Margaret M. deGuzman, Gravity and the Legitimacy o/ the InternationalCriminal
Court, 32 FORDHAM INT'L L.J. 1400 (2009).
12. deGuzman, Choosing to Prosecute, supra note 10.
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
13. HUGO GROTIus, DE JURE BELLI AC PADS, LIBRI TRES (1646), bk. 11, ch. XX, para.
XL.1, in 2 THE CLASSICS OF INTERNATIONAL LAW 504 (F. W. Kelsey trans., Clarendon Press
1925) (emphasis added) ("[K]ings, and those who possess rights equal to those kings, have
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
the right of demanding punishments not only on account of injuries committed against
themselves or their subjects, but also on account of injuries which do not directly affect them
but excessively violate the law of nature or of nations in regard to any persons
whatsoever."). But see FRANCISCO SUAREZ, SELECTIONS FROM THREE WORKS 817, reprinted
in 2 THE CLASSICS OF INTERNATIONAL LAW 814 (G. Williams, A. Brown & J. Waldron trans.,
Clarendon Press 1944) (quoted in Theodor Meron, Common Rights oqfMankind in Gentili,
Grotius, and Suarez, 85 AM. J. INT'L L. 110, 113 (1991) ("[T]he assertion made by some
writers, that sovereign kings have the power of avenging injuries done in any part of the
world, is entirely false, and throws into confusion all the orderly distinctions of
jurisdiction.").
14. See, e.g., Charter of the International Military Tribunal, § 1, art. 6, Aug. 8, 1945,
available at http://avalon.law.yale.edu/imt/imtconst.asp. [hereinafter Nuremberg Charter]
(limiting jurisdiction to "major war criminals"); Statute of the International Criminal
Tribunal for the Former Yugoslavia, S.C. Res. 827, art. 1, Annex, U.N. Doc. S/RES/827
(May 25, 1993) [hereinafter ICTY Statute] (granting jurisdiction over "serious violations of
international humanitarian law"); Statute of the International Criminal Tribunal for Rwanda,
S.C. Res. 955, art. 1, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR
Statute] (granting jurisdiction over "serious violations of international humanitarian law");
Statute of the Special Court for Sierra Leone, art. 1(1), Jan. 16, 2002, 2178 U.N.T.S. 138,
available at http://www.sc-sl.org/LinkClick.aspx'?fileticket uClndlMJeEw / 3d&tabid 176
[hereinafter SCSL Statute] (limiting jurisdiction to "persons who bear the greatest
responsibility for serious violations of international humanitarian law"); Law on the
Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution
of Crimes Committed During the Period of Democratic Kampuchea, art. 1, Oct. 27, 2004,
NS/RKM/1004/006 [hereinafter ECCC Statute] (establishing jurisdiction over "those who
were most responsible for the crimes and serious violations of Cambodian penal law,
international humanitarian law and custom, and international conventions recognized by
Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979");
Rome Statute, supranote 2, pmbl. (establishing jurisdiction over "the most serious crimes of
concern to the international community as a whole").
15. Cf.' Alex J. Bellamy, Mass Atrocities and Armed Conflicts: Links, Distinctions,
and Implications for the Responsibility to Prevent, THE STANLEY FOUNDATION, 2 (Feb.
2011), http://www.stanleyfoundation.org/publications/pab/bellamypab2201 l.pdf (defining
genocide and mass atrocities as mass killings involving minimum of 5,000 intentionally
killed civilians).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
16. Jan Klabbers, The Spectre of InternationalCriminal Justice: Third States and the
]CC, in INTERNATIONAL CRIMINAL LAW & THE CURRENT DEVELOPMENT OF PUBLIC
INTERNATIONAL LAW 49 (Andreas Zimmerman ed., 2003). See also ERIC K. LEONARD, THE
ONSET OF GLOBAL GOVERNANCE: INTERNATIONAL RELATIONS THEORY AND THE
INTERNATIONAL CRIMINAL COURT 188 89 (2005); Abram Chayes & Anne-Marie Slaughter,
The ICC and the Future of the Global Legal System, in THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT: NATIONAL SECURITY & INTERNATIONAL LAW 237, 240
(Sarah B. Sewall & Carl Kaysen eds., 2000) ("The existence of exclusive domestic
jurisdiction is now increasingly conditional on conformity with international rules and
principles, especially human rights norms.").
17. The United States objected to the proposal on the grounds that "crimes against
humanity" did not exist under international law. See Memorandum of Reservations
Presented by the Representatives of the United States to the Report of the Comm'n on
Responsibilities (Apr. 4, 1919), Annex II, reprinted in Commission on the Responsibility of
the Authors (f the War and on En/brcement (f Penalties: Report Presented to the
PreliminaryPeace Conerence (Mar.29, 1919), 14 AM. J. INT'L L. 95, 134 (1920).
18. But see supranote I (analyzing whether Nuremberg was truly "international").
19. The International Military Tribunal (IMT) was the first court to adjudicate "crimes
against peace," which are the precursors to the crime of aggression, and "crimes against
humanity," which were included to enable the IMT to prosecute crimes the Nazis had
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
committed against their own citizens, which were not included in the traditional definition of
war crimes.
20. Judgment, 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL
MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945 1 OCTOBER 1946, 462 (1948)
[hereinafter NUREMBERG] (focusing on crimes against peace); see also Beth Van Schaack,
Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 GEO. L.J.
119, 126 (2008).
21. The definition did require that the crimes be committed against a "civilian
population." Nuremberg Charter, supra note 14, art. 6(c). This might be interpreted to
include some notion of scale even though the Nuremberg judgment did not reflect that
understanding.
22. See Nuremberg Charter, supra note 14, art. 6(c) (defining crimes against humanity
as "murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war; or persecutions on political, racial
or religious grounds in execution of or in connection with any crime within the jurisdiction
of the Tribunal, whether or not in violation of the domestic law of the country where
perpetrated"); NUREMBERG, supra note 20, at 468 (determining that, for acts to constitute
crimes against humanity, they must be made "in execution of, or in connection with" the
war).
23. See Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the
Incoherence, 37 COLUM. J. TRANSNAT'L L. 787, 791 (1999) ("The war nexus allowed the
drafters of the Charter to condemn specific inhumane acts of Nazi perpetrators committed
within Germany without threatening the entire doctrine of state sovereignty."); see also
WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES 10-11
(2000) (arguing that the war nexus was included because "the great powers that drafted [the
Nuremberg Charter] were loathe to admit the notion, as a general and universal principle,
that the international community might legitimately interest itself in what a State did to its
own minorities.").
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
24. G.A. Res. 260 (111) B, at 177, U.N. GAOR, 3d Sess., U.N. Doc. A/RES/260(111)
(Dec. 9, 1948).
25. G.A. Res. 177 (11), U.N. GAOR, 2d Sess., U.N. Doc. A/RES/177(11), at 111 (Nov.
21, 1947). In 1987, the Draft Code was renamed "Draft Code of Crimes Against the Peace
and Security of Mankind." G.A. Res. 42/151, at 292, U.N. Doc. A/RES/42/151 (Dec. 7,
1987) (emphasis added).
26. The Commission considered that pending the establishment of an international
criminal court the crimes in the Draft Code could be prosecuted by national courts. Report of
the InternationalLaw Commission to the GeneralAssembly, 6 U.N. GAOR, Supp. No. 9, at
10 11, U.N. Doc A/1858 (1951), reprinted in [1951] 2 Y.B. Int'l L. Comm'n 123, 134, U.N.
Doc. A/CN.4/48.
27. Ricardo J. Alfaro, Special Rapporteur, Report on the Question (f International
CriminalJurisdiction, [1950] 2 Y.B. Int'l L. Comm'n 1, 16 17, U.N. Doc. A/CN.4/15.
28. Id. at 17.
29. J. Spiropoulos, Special Rapporteur, Draft Code ofQffences Against the Peace and
Security of Mankind,[1950] 2 Y.B. Int'l L. Comm'n 253, 259, U.N. Doc. A/CN.4/25.
30. Id.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
36. Id. at 104. The 1996 Draft Code dropped this language, but added the requirement
that war crimes be committed in a systematic manner or on a large scale. Report of the
International Law Commission on the Work of its Forty-Eighth Session (6 May 26 July
1996), 51 U.N. GAOR, Supp. No. 10, at 110-11, U.N. Doc. A/51/10 (1996), reprinted in
[1996] 2 Y.B. Int'l L. Comm'n 1, 53 U.N. Doc. A/CN.4/SER.A/1996/Add.1 (Part 2).
37. See, e.g., Report of the InternationalLaw Commission on the Work of Its Thirty-
Fifth Session (3 May-22 July 1983), 38 U.N. GAOR, Supp. No. 10, at 21, U.N. Doc.
A/38/10 (1983), reprinted in [1983] 2 Y.B. Int'l L. Comm'n 1, 14 U.N. Doc.
A/CN.4/SER.A/1983/Add. 1 (Part 2) (arguing that seriousness can be measured "either by
the extent of the calamity or by its horrific character, or by both at once") (emphasis added);
Report of the InternationalLaw Commission on the Work of Its Thirty-Sixth Session (7 May
27 July 1984), 39 U.N. GAOR, Supp. No. 10, at 16 17, U.N. Doc. A/39/10 (1984),
reprintedin [1984] 2 Y.B. Int'l L. Comm'n 1, 11-12, U.N. Doc A/CN.4/SER.A/1984/Add.1
(Part 2) (considering such factors as discriminatory motive, the identity of the victims and
the nature of the interest infringed).
38. Sompong Sucharitkul, Special Rapporteur, Sixth Report on Jurisdictional
Immunities o!States and their Property,[1984] 2 Y.B. Int'l L. Comm'n 1, 11-12, U.N. Doc
A/39/10 (Aug. 9, 1984).
39. See Permanent Representative of Trinidad and Tobago, Letter dated Aug. 21, 1989
from the Permanent Representative of Trinidad and Tobago to the Secretary-General, U.N.
Doc. A/44/195 (1989).
40. G.A. Res. 44/39, U.N. Doc. A/RES/44/39 (Dec. 4, 1989).
41. Report of the InternationalLaw Commission on the Work of Its Forty-Sixth Session
(2 May 22 July 1994), 49 U.N. GAOR, Supp. No. 10, at 44, U.N. Doc. A/49/10 (1994),
reprinted in [1994] 2 Y.B. Int'l L. Comm'n 1, 27, U.N. Doc. A/49/10.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
42. See id. at 40 ("It is the understanding of the Commission that the definition of
crimes against humanity encompasses inhumane acts of a very serious character involving
widespread or systematic violations aimed at the civilian population .... The hallmarks of
such crimes lie in their large-scale and systematic nature.").
43. See S.C. Res. 808, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/808 (Feb. 22, 1993)
(establishing ICTY in response to "widespread violations of humanitarian law ... including
reports of mass killings and the continuance of ... ethnic cleansing"); S.C. Res. 955, U.N.
SCOR, 49th Sess., U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing ICTR in response to
"reports indicating that genocide and other systematic, widespread and flagrant violations of
international humanitarian law have been committed in Rwanda"). Galina Nelaeva,
Establishment of the International Criminal Tribunal in the Former Yugoslavia (ICTY):
Dealing with the "War Raging At the Heart of Europe, " II ROMANIAN J. EUR. AFF. 100,
106 (2011) ("[F]requent references to WWII by the politicians, the media and the activists in
their analysis of the Yugoslav conflict showed that the conflict was perceived as extremely
brutal .... ).
44. See, e.g., ICTY Statute, supra note 14, art. 1 5; ICTR Statute, supra note 14, art.
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
45. ICTY Statute, supra note 14, art. 5; Van Schaack, supra note 23, at 792 (noting
that because the Nuremberg Tribunal required an armed conflict nexus, tribunals and
international law drafters after Nuremberg treated the armed conflict nexus as a substantive
element of crimes against humanity).
46. ICTR Statute, supra note 14, art. 3 ("The International Tribunal for Rwanda shall
have the power to prosecute persons responsible for the following crimes committed as part
of a widespread or systematic attack against any civilian population .... ).
47. See id. art. 4 (criminalizing violations of Additional Protocol I, which applies to
non-international armed conflicts).
48. This dichotomy simplifies the complex web of policy objectives states sought to
further by supporting or opposing the ICC. Nonetheless, the rough division of delegations to
the Rome Conference into human rights-promoting and sovereignty-protecting camps
represents an important theme in the negotiations and helps elucidate the important role
gravity played in producing the Court.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
addition, the use of the term "in particular" leaves it unclear when, if
ever, the Court should exercise jurisdiction over war crimes that do
not meet this gravity-based threshold. Leaving these questions open
was constructive-it enabled some sovereignty-focused states to
support the Court while reassuring the human rights-focused states
that the Court would have the ability to adjudicate all war crimes.
The outcome of the war crimes debate in Rome probably rep-
resents the most significant expansion of international criminal juris-
diction to date. Prior international tribunals had exercised jurisdic-
tion over war crimes only in contexts where such crimes were
committed on a widespread and systematic basis: the Holocaust,
ethnic cleansing in the former Yugoslavia and the Rwandan geno-
cide. The statutes of those courts did not require such a context be-
cause they were set up in response to the obviously massive nature of
the crimes in each situation. By including only a suggestive rather
than a mandatory gravity-based threshold for war crimes, the Rome
Statute provides the first international jurisdiction over situations that
involve only war crimes at the low end of the gravity spectrum.
A similar debate took place in the context of crimes against
humanity. The sovereignty-focused states wanted to limit crimes
against humanity to crimes that are particularly serious because they
are both widespread and they are committed systematically. In con-
trast, the human rights-promoting states wanted these gravity markers
to be alternatives. 53 After heated discussions, the Canadian delega-
tion brokered a compromise: the alternative formulation would be
used but an additional provision would be added defining "attack" as
''a course of conduct involving the multiple commission of [the
enumerated] acts against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such at-
54
tack."
Although the gravity markers are thus spelled out in greater
detail for crimes against humanity than for war crimes, the language
remains ambiguous. How many acts qualify as "multiple" and what
degree of organization is required for an "organizational policy"?
Again, this ambiguity was constructive. A delegation seeking to
convince its legislature that a high bar had been set for crimes against
humanity could read the requirements of "multiple" acts and a "pol-
icy" as performing that function. At the same time, a human rights-
focused delegation could claim victory on the grounds that the gravi-
53. See Darryl Robinson, Defining "Crimes Against Humanity" at the Rome
Conference, 93 AM. J. INT'L L. 43, 47 (1999); Arsanjani, supra note 52, at 31.
54. Rome Statute, supranote 2, art. 7(2)(a).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
Art. 7, para. 2(a) language (requiring "multiple commission of acts") was seen as properly
limiting the ICC's jurisdiction to only sufficiently grave or serious commissions of the
enumerated offenses. Id. Arsanjani contends that because of this purportedly limiting effect
of a seriousness/gravity requirement, a compromise was made possible that allowed the
inclusion of several of the specific offenses listed in Art. 7. Id.
60. Agreement Between the United Nations and the Government of Sierra Leone on
the Establishment of a Special Court for Sierra Leone, U.N. Sierra Leone, Jan. 16, 2002,
2178 U.N.T.S. 137, available at http://www.sc-sl.org/LinkClick.aspx?fileticket=CLkIrM
QtCHg%3d&tabid=176; Agreement Between the United Nations and the Royal Government
of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed
During the Period of Democratic Kampuchea, U.N.-Cambodia, June 6, 2003, 2329 U.N.T.S.
117, available at http://www.unakrt-online.org/Docs/Court / 20Documents/Agreement
between UN and RGC.pdf; United Nations Transitional Administration in East Timor
(UNTAET), Regulation 2000115: On the Establishment of Panels with Exclusive
Jurisdiction over Serious Criminal QOtinces, UNTAET/Reg/2000/15 (June 6, 2000),
available at http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/RegO015
E.pdf.
61. The atrocities of the Khmer Rouge have been termed "auto-genocide" because,
although they do not meet the technical definition of genocide, they involved massive killing
of ethnic Khmer by ethnic Khmer.
62. Statute of the Special Tribunal for Lebanon, S.C. Res. 1757, Annex, art. 1(1), U.N.
Doc. S/RES/1757 (May 30, 2007) (providing tribunal jurisdiction to prosecute "persons
responsible for the attack of 14 February 2005 resulting in the death of former Lebanese
Prime Minister Rafiq Hariri and in the death or injury of other persons").
63. Id.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
64. BETH VAN SCHAACK & RONALD C. SLYE, INTERNATIONAL CRIMINAL LAW AND ITS
ENFORCEMENT: CASES AND MATERIALS, (2d ed. 2010) (supplemental material on history of
war crimes). See also Jenia Iontcheva Turner, Del nse Perspectives on Law and Politics in
International Criminal Trials, 48 VA. J. INT'L L. 529, 587 (2008) (noting that treaty
provisions have been "interpreted and applied liberally" by international tribunals).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
tional judges and prosecutors have diluted the gravity of the crimes
they investigate and adjudicate. While gravity is an elusive concept,
as already discussed, commentators generally agree that the gravity
of a case, or cases within a situation, requires some kind of evalua-
tion of the harms inflicted and the culpability of perpetrators-a task
that is both quantitative and qualitative. 65 The notion of harm thus
includes consideration of such factors as the number of victims af-
fected, the nature of the crimes, the way they were committed and
their impact beyond the immediate victims. 6 6 Culpability relates to
the mental state of the defendant, including his or her role in the
crimes. The evidence presented below suggests that international
criminal law is expanding along these dimensions in ways that tend
to decrease the gravity of the crimes adjudicated.
After demonstrating that international criminal law is expand-
ing in ways that dilute gravity, this Part explains why such expansion
is likely to continue. It is possible that states-particularly sover-
eignty-focused states-will stem the tide. States could resist expan-
sion either directly by amending the Rome Statute to define more
strictly the jurisdictional requirements or indirectly by putting pres-
sure on the Court to adopt a narrow view of its jurisdiction. Alterna-
tively, the Court's prosecutor or its judges or both could themselves
adopt a more conservative approach to their work. But for the rea-
sons elaborated in Section B below, it is significantly more likely that
the expansionist trend will continue for the foreseeable future.
A. Evidence of Expansion
i. Broadening Harms
67. Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for
Interlocutory Appeal on Jurisdiction, 11 128-37 (Int'l Crim. Trib. for the Former Yugoslavia
Oct. 2, 1995) [hereinafter Tadic Decision].
68. See Theodor Meron, International CriminalizationofInternal Atrocities, 89 AM. J.
INT'L L. 554, 559 (1995) (noting that until the mid-1990s, it was generally accepted that
customary international law applicable to non-international conflicts did not include war
crimes); Kenneth W. Abbott, InternationalRelations Theory, International Law, and the
Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L. 361, 378 (1999) ("The
ICTY appellate chamber decision in Tadic, for example, expanded its own jurisdiction and
that of other tribunals by enunciating a customary law of war crimes in internal conflicts.").
69. See Allison Marston Danner, When Courts Make Lawi: How the International
Criminal Tribunals Recast the Laws of War, 59 VAND. L. REV. 1, 35 36 (2006) (discussing
influence Tadic decision had on drafters of Rome Statute, especially in context of war
crimes, noting "the Rome Statute adopts the definition of 'armed conflict' articulated by the
Appeals Chamber in Tadic" which included non-international civil war).
70. Tadic Decision, supra note 67, 129.
71. See, e.g., Prosecutor v. Boskoski & Tarculovski, Case No. IT-04-82-T, Judgment
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
nal law was no longer limited to conflict between national forces but
now had to be distinguished from "banditry, unorganized and short-
lived insurrections, or terrorist activities, which are not subject to in-
ternational humanitarian law."' 72 Reasoning that international hu-
manitarian law should apply as broadly as possible, judges have tak-
en a fairly expansive approach to that distinction, thereby effectively
diminishing the gravity required for international adjudication of war
crimes. 73
Courts have also taken an expansive view of what constitutes
a crime against humanity. In particular, judges have interpreted
broadly the requirement that the crimes be part of a widespread or
systematic attack. Crimes have been found to be "widespread"
when they covered geographic areas as small as twenty kilometers,
two communes and a single prison camp. 74 Former ICTY judge Pa-
tricia Wald has noted that "[i]n practice ... the 'systematic or wide-
spread' chapeau of crimes against humanity presents no great obsta-
cle to prosecution," 75 and Payam Akhavan has written that "[r]ecent
[ICTY] decisions reveal a temptation to dilute the laws of war in or-
der to criminalize civilian suffering by invoking the broader concept
of crimes against humanity." ' 76 Akhavan cites the expansive ICTY
interpretation of the crime against humanity of deportation, which he
argues criminalizes combat. According to the ICTY reading of the
crime, even a lawful attack could result in criminal liability if the
(Int'l Crim. Trib. for the Former Yugoslavia July 10, 2008).
72. Id. at 175 (quoting Prosecutor v. Tadic, Case No. IT-94-l-T, Judgment, 562
(Int'l Crim. Trib. For the Former Yugoslavia May 7, 1997)).
73. See, e.g., Boskoski & Tarculovski, Case No. IT-04-82-T, 197, 239, 292 (stating
that Common Article 3 reflects basic humanitarian protections such that a party to an armed
conflict "only needs a minimal degree of organization to ensure their application" and
finding that armed conflict existed despite low number of casualties and limited organization
of one party); Prosecutor v. Gotovina, Case No. IT-06-90-PT, Trial Chamber, Decision on
Several Motions Challenging Jurisdiction, 31 (Int'l Crim. Trib. for the Former Yugoslavia
Mar. 19, 2007) ("Moreover, the 'in armed conflict' requirement has been interpreted broadly
in the jurisprudence of the Tribunal. While requiring, for the purposes of Article 5, the
existence of an armed conflict at the time and place relevant to the indictment, the
jurisprudence does not require a 'material nexus' between the armed conflict and the acts of
the accused.").
74. Patricia Wald, Genocide and Crimes against Humanity, 6 WASH. U. GLOBAL STUD.
L. REV. 621, 629 (2007) (citing GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL
LAW at 654-657 (2005)).
75. Id. at 630.
76. Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War:
Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence, 6 J. INT'L
CRIM. JUST. 21, 22 (2008).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
combatant should have foreseen that the attack would cause civilians
to flee. 77 William Schabas has even suggested that according to the
ICTY's approach the crimes committed during the London riots 7of8
August 2011 would meet the definition of crimes against humanity.
The ICTR and ICTY have also taken a broad approach to in-
terpreting the catchall crimes of "other inhumane acts" and the crime
of persecution. For example, the ICTR has controversially ruled that 79
hate speech can constitute persecution as a crime against humanity.
All of these developments at least arguably reduce the gravity re-
quired for crimes against humanity.
Although the ICC's jurisprudence is limited, early indications
suggest that ICC judges may hew to the expansionist example set by
the other tribunals. For example, in its first effort to interpret the
Rome Statute's requirement that crimes against humanity be commit-
ted pursuant to a state or organizational policy, the court held that
groups of loosely coordinated political leaders and businessmen qual-
ified as "organizations." 80 One judge, however, took the view that
organizations must be "state-like" to fulfill the contextual require-
ment for crimes against humanity. 81 Claus Kress writes that the deci-
sion "follows a tendency in the more recent international case law to
downplay the significance of the contextual requirement of crimes
against humanity." 82 Interestingly, not only have the ICC judges
taken an expansive view of the organizational policy requirement, but
the judges of other tribunals have refused to adopt the requirement at
all, even after it was enshrined in the Rome Statute. 83
seventeen situations, that number includes those that have led to the opening of
investigations (Uganda, DRC, CAR, Darfur, Kenya, Cote d'Ivoire and Libya), and those
dismissed (Venezuela, Iraq and Palestine). See OTP-ICC, Communications, Rejerrals and
Preliminary Examinations, INTERNATIONAL CRIMINAL COURT (last visited Sept. 6, 2012),
available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+
Prosecutor/Comm+and+Ref/.
93. See Press Release, ICC-OTP, ICC Prosecutor: Alleged War Crimes in the
Territory of the Republic of Korea under Preliminary Examination (Dec. 6, 2010), available
at http://www.icc-cpi.int/menus/icc/press / 20and /"20media/press / 20releases/press /"20rele
ases%20(2010)/pr608 (describing investigation for shelling of Yeonpyeong); see also Seo
Yoonjung & Keith B. Richburg, 2 Civilians Killed in North Korean Artillery Attack, WASH.
POST, Nov. 24, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/ 11/23/
AR2010112300880.html (describing number of victims in Yeonpyeong shelling).
94. ICC-OTP, supra note 93.
95. Human Rights Watch, After the Coup: Ongoing Violence, Intimidation, and
Impunity in Honduras, HUMAN RIGHTS WATCH, 12, 15 (2010), available at
http://www.hrw.org/sites/default/files/reports/hondurasl21 OwebwcoverO.pdf (describing
numbers of victims).
96. See ICC-OTP, ]CC Prosecutor Confirms Situation in Guinea under Examination
(Oct. 14 2009), INTERNATIONAL CRIMINAL COURT, http://www.icc-cpi.int/menus/icc/
structure%20ogo20the%o20court/office%20oPo20the%20prosecutor/comm%20and%2ref/g
uinea/icc%20prosecutor%o20confinnsYo20situation%20in% o20guineaYo20under%20examinat
ion ("[W]omen were abused or otherwise brutalized on the pitch of Conakry's stadium,
apparently by men in uniform."); see also Human Rights Watch, Bloody Monday: The
September 28 Massacre and Rapes by Security Forces in Guinea, HUMAN RIGHTS WATCH, 4
(2009), available at http://www.hrw.org/sites/default/files/reports/guineal209web-O.pdf
(describing number of victims).
97. Compare Kress, supra note 82, at 856 (describing violence in Kenya as resulting in
over 1,000 killings, almost 1,000 rapes and between 3,000 and 4,000 acts of serious injury),
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Case File No:
002/19-09-2007-ECCC-OCIJ, Pre-Trial Chamber (May 20, 2010). The ICC has applied a
theory of indirect co-perpetration pursuant to Article 25(3)(a) of the Rome Statute.
Prosecutor v. Thomas Lubanga, Case No. ICC-01 /04-01/06, Judgment Pursuant to Article 74
of the Statute (Mar. 14, 2012); Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-01/06-
803-tEN, Decision on the Confir-ation of Charges (Jan. 29, 2007). This mode of liability
requires the existence of an agreement or common plan between two or more persons that, if
implemented "will result in the commission of the relevant crime in the ordinary course of
events" and an essential contribution to the common plan by the accused that resulted in the
commission of the relevant crime. Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-
01/06, Judgment Pursuant to Article 74 of the Statute, 976 1018 (Mar. 14, 2012).
Additionally, the accused must be aware that by implementing the common plan, the
criminal consequences "will occur in the ordinary course of events" and that he provided an
essential contribution to the implementation of the common plan. Id. 11 1013, 1018.
108. See Danner & Martinez, supra note 99, at 107 08; Turner, supra note 64, at 561
(noting 64% of ICTY indictments filed between June 15, 2001 and January 1, 2004
explicitly relied on JCE and 81% relied on it implicitly). Turner went on to note that as of
December 2007, 48% of all ICTY indictments explicitly relied on JCE. Id. At the ICTR, as
of December 2007, though only thirteen out of eighty-five indictments were grounded in
JCE, fifty-five of these indictments (65%) included a conspiracy count. Id. at 561 62.
109. Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-2004-16-A, Appeals
Chamber, Judgment, 80-82 (Feb. 22, 2008). Commentators have criticized the SCSL for
extending the doctrine this far. See Wayne Jordash & Penelope Van Tuyl, Failure to Carry
the Burden of Proofi How Joint Criminal Enterprise Lost its Way at the Special Court./br
Sierra Leone, 8 J.INT'L CRIM. JUST. 591, 603 (2010).
110. Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-2004-16-A, Appeals
Chamber, Judgment, 80 (Feb. 22, 2008) (reasoning "that the requirement that the common
plan, design or purpose of a joint criminal enterprise is inherently criminal means that it
must either have as its objective a crime within the Statute, or contemplate crimes within the
Statute as the means of achieving its objective").
111. See, e.g., Rome Statute, supra note 2, art. 28.
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
part on the grounds that they had a duty they failed to perform. Such
liability for omissions is controversial and generally requires at least
recklessness on the part of defendants,' 12 yet some international
courts have extended the doctrine, suggesting that even negligent
failures to prevent or punish may be international crimes. 113
Some international judges have also taken an expansive ap-
proach to the actus reus element of superior responsibility. For ex-
ample, in the Oric case, an ICTY Trial Chamber interpreted the term
"committed" to allow superior liability for a subordinate's acts or
omissions that aid or abet crimes. 114 International courts have also
extended this theory beyond military superiors to civilian leaders. '15
Commentators have thus expressed concern that international courts
112. See Danner & Martinez, supra note 99, at 121 ("Liability for serious crimes based
on omissions, let alone negligent omissions, is unusual in criminal law.").
113. See Jenny S. Martinez, Understanding Mens Rea in Command Responsibility:
From Yamashita to Blaskic and Beyond, 5 J. INT'L CRIM. JUST. 638, 650-53 (2007) (citing
post-World War 1i cases in which courts appeared to establish negligent failure to obtain
knowledge as the mens rea of command responsibility). For example, in the Tokyo War
Crimes Trial, in which twenty-eight Japanese military and civilian officials were tried, the
International Military Tribunal for the Far East held that liability for command responsibility
would attach if a superior either "had knowledge that such crimes were being committed,
and having such knowledge [he] failed to take such steps as were within [his] power to
prevent the commission of such crimes in the future," or "should, but for negligence or
supineness, have had such knowledge .... " Id. at 652 (citing 20 THE TOKYO WAR CRIMES
TRIAL, THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST, Judgment, Official
Transcript, Annex A-6, 444-48 (1981)) (emphasis added). The ICC statute also contains
language indicating negligence may suffice. Rome Statute, supra note 2, art. 28 (imposing
criminal responsibility upon a military commander where the commander "either knew or,
owing to the circumstances at the time, should have known" that forces under his command
and control were committing, or were about to commit, crimes within the ICC's
jurisdiction).
114. Prosecutor v. Oric, Case No. IT-03-68-T, Judgment, 11 300-01 (Int'l Crim. Trib.
For the Former Yugoslavia June 30, 2006); Darryl Robinson, The Two Liberalisms of
International Criminal Law, in FUTURE PERSPECTIVES ON INTERNATIONAL CRIMINAL JUSTICE
115, 140 n.154 (Carsten Stahn & Larissa van den Herik eds., 2010). See Kai Ambos, Joint
Criminal Enterprise and Command Responsibility, 5 J. INT'L CRIM. JUST. 159, 178 (2007)
(criticizing the Oric Trial Chamber's "extensive interpretation" of the term "committed"
and claiming such an interpretation conflicts with the principle of legality).
115. E.g., Prosecutor v. Musema, Case No. ICTR-96-13-T-A, Judgment and Sentence,
1111127-48, 864, 866 (Jan. 27, 2000); Prosecutor v. Kayishema & Ruzindana, Case No. ICTR
95-1-T, Judgment, 11 213-16 (May 21, 1999); Prosecutor v. Delalic (Celebici), Case No. IT-
96-21-A, Judgment, 195 96, 240 (Int'l Crim. Trib. For the Former Yugoslavia Feb. 20,
2001); Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment, 75 (Int'l Crim. Trib.
For the Former Yugoslavia June 25, 1999); Prosecutor v. Delalic (Celebici), Case No. IT-96-
21-T, Judgment, 11356-63 (Int'l Crim. Trib. For the Former Yugoslavia Nov. 16, 1998).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
B. PredictingContinuedExpansion
116. See, e.g., Ambos, supra note 114, at 176; Martinez, supra note 113, at 642.
117. About the ICTY Achievements, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA, http://www.icty.org/sid/324 (last visited Sept. 11, 2012).
118. See, e.g., Jenia Iontcheva Turner, Legal Ethics in International CriminalDefense,
10 CHI. J. INT'L L. 685, 691 n.15 (2010); Ralph Henham, The PhilosophicalFoundations of
International Sentencing, I J. INT'L CRIM. JUST. 64, 74, 80 81 (2003); Jean Galbraith, The
Pace of International Criminal Justice, 31 MICH. J. INT'L L. 79 (2009); Linda M. Keller,
Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative
Justice Mechanisms, 23 CONN. J. INT'L L. 209, 265 (2008).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
Court. 119 But what is the Court supposed to try to prevent? Certainly
it is intended to prevent crimes as serious as the atrocities that moti-
vated its creation-the Holocaust, the Rwandan genocide and ethnic
cleansing in the former Yugoslavia in particular.
But why stop there? If international prosecution can prevent
even a small number of killings, why not include such killings in its
jurisdiction? Without a clear conceptual or doctrinal limitation,
whether in the form of gravity or otherwise, the goal of preventing
crimes pushes in favor of expansion. International courts can, for ex-
ample, deter more crimes by interpreting expansively the require-
ments of "armed conflict" for war crimes and the "widespread or
systematic" elements of crimes against humanity.
Likewise, if international prosecutions can serve to promote
peace and to reconcile communities, it makes sense to stretch doc-
trines to include any prosecutions necessary to accomplish these
goals. For example, since many people believe reconciliation re-
quires prosecuting both sides of a conflict even when one side has
committed significantly less serious crimes, 12 0 a court may be tempt-
ed to interpret its jurisdiction broadly to reach the lesser crimes.
Finally, restorative justice goals mitigate in favor of prosecut-
ing a wide range of crimes emerging out of a conflict, no matter how
serious. Through exemplary prosecutions of the various types of
crimes committed, such courts can attempt to restore large numbers
of victims despite the inability of such courts to prosecute large num-
bers of perpetrators. 121
Moreover, the ICC does not merely seek to accomplish these
goals directly but also indirectly by stimulating national prosecutions.
Moreno-Ocampo has interpreted his mandate to include so-called
"positive complementarity": taking proactive steps to encourage na-
119. ERROL P. MENDES, PEACE AND JUSTICE AT THE INTERNATIONAL CRIMINAL COURT:
A COURT OF LAST RESORT 143 (2010) (noting that the Rome Statute's preamble is often
"interpreted as meaning that deterrence as a fundamental principle of international criminal
justice is a goal of the ICC"); Mirjan Damagka, What is the Point of InternationalCriminal
Justice?, 83 CHI.-KENT L. REV. 329, 344 (2008) (noting that deterrence has been accorded
"pride of place" among the objectives of international criminal courts).
120. See, e.g., AMNESTY INTERNATIONAL, INTERNATIONAL CRIMINAL TRIBUNAL FOR
RWANDA: TRIALS AND TRIBULATIONS 16 (1998) ("True reconciliation in Rwanda must
involve showing that the rule of law does not discriminate for or against anyone. The
Tribunal's work should contribute to this process [by also prosecuting Rwandan Patriotic
Front abuses]."), available at http://www.amnesty.org/en/library/asset/lOR40/003/1998/en/
83bb5cf5-e81 e- 11 dd-9deb-2b812946e43c/ior400031998en.html.
121. Turner, supra note 64. See Damaska, supra note 119, at 332 ("It is believed that
retribution exacted from a few individuals will promote group reconciliation.").
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
122. See generally ICC, Office of the Prosecutor, Paper on Some Policy Issues bebre
the Office qf the Prosecutor (2003), INTERNATIONAL CRIMINAL COURT, http://www.icc-
cpi.int/NR/rdonlyres/I FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Poli
cyPaper.pdf.
123. See Velisquez-Rodriguez v. Hond., Reparations and Costs, Inter-Am. Ct. H.R.
(ser. C) No. 7, 8 (July 21, 1989) (ordering, upon request of wife of victim, that
Government of Honduras "carry out an exhaustive investigation of the circumstances of the
disappearance of Manfredo Velasquez and bring charges against anyone responsible for his
disappearance"); El Amparo v. Venez., Reparations and Costs, Inter-Am. Ct. H.R. (ser. C)
No. 28, 164 (Sept. 14, 1996) (unanimously deciding that Government of Venezuela must
continue investigations into deaths of several individuals allegedly killed by state police or
military personnel and punish those responsible); Fernando Felipe Basch, The Doctrine of
the Inter-American Court of Human Rights Regarding States' Duty to Punish Human Rights
Violations and Its Dangers, 23 AM. U. INT'L L. REv. 195 (2007).
124. See David C. Baluarte, Strategizing ./br Compliance: The Evolution ?f a
Supervising Compliance Phase of Inter-American Court Litigation and the Strategic
Imperative.Ibr Victims' Representatives, AM. U. INT'L L. REV. 263 (2012).
125. Alexandra Huneeus, International Criminal Law by Other Means: The Quasi-
Criminal Jurisdictionof the Human Rights Courts, 107 AM. J. INT'L L (forthcoming 2013)
(draft on file with author).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
fication for these jobs. 126 This is not surprising since international
criminal law grew out of the human rights movement.
As Darryl Robinson has persuasively argued, the human
rights-promoting identities of the regime's actors have fostered an
expansionist approach to international criminal law. 12 7 Indeed, he
points out that the human rights agenda not only helps to explain why
international criminal law shows expansive tendencies, it provides a
means for such expansion.' 28 Judges justify expansive doctrines
through interpretive approaches borrowed from the human rights
context and conflate human rights norms with international criminal
12 9
law norms.
International prosecutors and judges are also connected to
human rights advocacy networks that influence their work. 130 Such
networks often push strongly for expansion. For example, activists
and politicians have labeled a variety of activities "crimes against
humanity," including the failure to reduce greenhouse gas emissions
and the production of biofuel. 131 Others have advocated for expan-
126. See Rome Statute, supra note 2, art. 36(3)(b)(ii); Allison Danner & Erik Voeten,
Who is Running the InternationalCriminal Justice System?, in WHO GOVERNS THE GLOBE?
37 (Deborah D. Avant, Martha Finnemore & Susan K. Sell, eds., 2010) ("[F]t appears that
governments have arrived at a common understanding of what the background for an
international criminal judge should be: a national-level appellate judge with extensive
international human rights experience.").
127. See Robinson, supra note 102.
128. Id. at 946.
129. Id. at 946-47.
130. See Daniel Terris et al., Tovard a Community of InternationalJudges, 30 Loy.
L.A. INT'L & COMP. L. REV. 419, 460 (2008) ("For judges with a human rights background,
th[e] pressure [to convict] comes with a considerable irony. Many of them spent earlier
parts of their careers protecting the rights of de/endants in national courts, holding military
organizations, police departments and justice systems accountable for their violations of
fairness and justice. Now, as judges on international criminal courts, they can find
themselves pressured by erstwhile colleagues to give primary attention to the rights of
victims, rather than those in the dock.").
131. See, e.g., Andrew Revkin, Are Big Oil and Big Coal Climate Criminals?, N.Y.
TIMES: DOT EARTH (June 23, 2008, 7:34 PM), http://dotearth.blogs.nytimes.com/2008/06/23
/are-big-oil-and-big-coal-climate-criminals/ (quoting a prominent scientist as accusing oil
executives of committing crimes against humanity and nature for stonewalling on the
reduction of greenhouse gas emissions); see also Grant Ferrett, Biolels 'Crime Against
Humanity', BBC NEWS (Oct. 27, 2007, 6:37 GMT), http://news.bbc.co.uk/2/hi/7065061.stm
(quoting a UN special rapporteur as condemning the production of biofuels as a crime
against humanity). See generally Peter Sharp, Prospects for EnvironmentalLiability in the
InternationalCriminal Court, 18 VA. ENVTL. L.J. 217 (1999) (discussing prospects of, and
arguing for, inclusion of environmental crimes within ICC's jurisdiction as genocide, crimes
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
against humanity, and/or war crimes); Amir Attaran, Roger Bate & Megan Kendall, Why
and Howt to Make an InternationalCrime q! Medicine Counterfeiting, 9 J. INT'L CRIM. JUST.
325, 340-44 (2011) (arguing severe pharmaceutical counterfeiting operations could
constitute crimes against humanity as defined by the Rome Statute and the ICC).
132. Jaya Ramji-Nogales, Questioning Hierarchies of Harm: Women, Forced
Migration, and International Criminal Law, 11 INT'L CRIM. L. REV. 463 (2011); see also
Melanie O'Brien, Prosecuting Peacekeepers in the ICC for Human Trafficking, I
INTERCULTURAL HUM. RTS. L. REV. 281, 283, 327 (2006) (suggesting that the commission by
peacekeepers of crimes such as trafficking, forced prostitution, rape and sexual slavery
should be prosecutable under Article 7 of the Rome Statute, but concluding that these
offenses are unlikely to fall within the ICC's subj ect-matter jurisdiction).
133. See Interview by Zachary Manfredi & Julie Veroff [ICC Observers Project] with
William A. Schabas, Professor of Human Rights Law and Director of the Irish Centre for
Human Rights, National University of Ireland, Galway (Mar. 26, 2009), available at
http:Hiccobservers.files.wordpress.com/2009/03/schabas-interview-official.pdf (stating that
the prosecutor made an "error in judgment" and should have "consigned himself to the
clearly established charges of crimes against humanity and war crimes" in indicting Bashir);
see also Int'l Commission of Inquiry on Darfur, Report of the Int'l Commission of Inquiry on
Dar/ir to the UN Secretary-General,4 (2005) (stating that the Sudanese government has not
pursued a policy of genocide because "the crucial element of genocidal intent appears to be
missing"), available at http://www.un.org/news/dh/sudan/cominq-darfur.pdf.
134. See Michael J. Kelly, The Debate Over Genocide in Dartur, Sudan, 18 U.C. DAVIS
J. INT'L L. & POL'Y 205, 213, 217 (2011) (indicating that the United States had earlier
labeled the situation a genocide and that Ocampo ultimately could not resist the pressure to
seek a charge of genocide from the court); Andrew T. Cayley, The Prosecutor's Strategy in
Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide, 6 J. INT'L
CRIM. JUST. 829, 830 (2008) (suggesting that, given the ongoing debate as to whether the
events actually amounted to genocide, it was external pressures, rather than Ocampo's own
judgment, that led to the decision to request a warrant including the charge of genocide);
Roberta Cohen, Daritr Debated, 29 FORCED MIGRATION REV. 55, 55 56 (Dec. 2007)
(discussing conviction of many NGOs that genocide was committed in Darfur and that U.S.
action was the result of pressure from NGOs, who in turn "found their voice by focusing on
genocide").
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
135. Relatedly, studies indicate that the greater the harms, the stronger the pull toward
conviction. Robinson, supra note 102, at 929 (citing J.K. Robbennolt, Outcome Severity and
Judgments of "Responsibility": A Meta-Analytical Review, 30 J. APPLIED SOC. PSYCHOL.
2575 (2000); J. Lucas, C. Graif & M. Lovaglia, Misconduct in the Prosecution of Severe
Crimes: Theory and Experimental Test, 69 Soc. PSYCHOL. Q. 97 (2006)).
136. Elena Baylis, Tribunal-Hopping with the Post-Conflict Justice Junkies, 10 OR.
REV. INT'L L. 361, 373-74 (2008).
137. For example, judges on international courts make more than judges in some
European countries. William A. Schabas, Independence and Impartiality of the
International Criminal Judiciary, in FROM HUMAN RIGHTS TO INTERNATIONAL CRIMINAL
LAW: STUDIES IN HONOUR OF AN AFRICAN JURIST, THE LATE JUDGE LAITY KAMA 571, 578
(Emmanuel Decaux & Adama Dieng eds., 2007); Erik Voeten, The Politics o!international
JudicialAppointments, 9 CHI J. INT'L L. 387, 393 94 (2009).
138. Charles F.C. Ruff, FederalProsecution (ofLocalCorruption: A Case Study in the
Making ofLaw Enfbrcement Policy, 65 GEO. L.J. 1171, 1228 (1977).
139. See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice
Prevent Future Atrocities?, 95 AM. J. INT'L L. 7, 11-12 (2001); M. Cherif Bassiouni,
Combating Impunity for International Crimes, 71 U. COLO. L. REv. 409, 410 (2000);
Michael P. Scharf, The Prosecutor v. Dusko Tadic: An Appraisal of the First International
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
War Crimes Trial Since Nuremberg, 60 ALB. L. REV. 861, 868-70 (1997) (discussing
potential deterrent effect of ICTY arrests and trials).
140. See, e.g., Madeline Morris, The Democratic Dilemma of the InternationalCriminal
Court, 5 BUFF. CRIM. L. REV. 591, 596 (2002) ("What, then, about non-party states'? What is
the democratic basis for the ICC's power as applied to populations whose states have not
consented on their behalf? Here, the ICC's claim to democratic legitimacy breaks down.
There is no democratic linkage between the ICC and those non-party nationals over whom it
would exercise authority.").
141. See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or
Exacerbate Human Atrocities?, 84 WASH. U. L. REV. 777, 817 831 (2006) (claiming that the
prospect of prosecution by an international court may sometimes exacerbate humanitarian
atrocities by generating local political instability).
142. Robinson, supra note 102, at 956; Robert Cryer, International Criminal Law vs.
State Sovereignty: Another Round?, 16 EUR. J. INT'L L. 979, 980 (2005) ("When
sovereignty appears in international criminal law scholarship, it commonly comes clothed in
hat and cape. A whiff of sulphur permeates the air.").
143. JESSE HELMS, EMPIRE FOR LIBERTY: A SOVEREIGN AMERICAN AND HER MORAL
MISSION 14 (2001) (warning that an International Criminal Court would be "arbitrary and
contemptuous of national judicial processes and would trample the sovereignty of
democratic nations"). But see Cryer, supra note 142, at 986-987 (arguing that while ICL's
substantive norms may chill sovereignty, they also jurisdictionally empower states).
144. See in/ra notes 152-155 and accompanying text.
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
145. Rome Statute, supra note 2, art. 89 (state parties shall comply with ICC requests
for arrest and surrender); ICTY Statute, supra note 144, art. 29 (states shall comply with
requests for assistance issued by a trial chamber of the ICTY, including the arrest or
detention of persons); ICTR Statute, supra note 144, art. 28 (states shall comply with
requests for assistance issued by a trial chamber of the ICTR, including the arrest or
detention of persons); see also Zhu Wenqi, On Co-operation by States Not Party to the
International Criminal Court, 88 INT'L REV. RED CROSS 87, 108 (2006) (claiming that
cooperation with the ICC by both party and non-party states is now obligatory due to
customary international law).
146. ICTR Statute, supra note 14, art. 6(2); ICTY Statute, supra note 14, art. 7(2);
Rome Statute, supranote 2, art. 27.
147. See, e.g., Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision on
Challenge to Jurisdiction: Lom&Accord Amnesty, 167 (Mar. 13, 2004).
148. Under this doctrine, a defendant may be detained and tried even though the
defendant's capture was illegal. Prosecutor v. Nikolic, Decision on Interlocutory Appeal
Concerning Legality of Arrest, Case No. IT-94-2-PTAR73, 11124, 26 (Int'l Crim. Trib. for
the Former Yugoslavia June 5, 2003).
149. See Morris, supra note 1400 (explaining how ICC efforts to extend jurisdiction
over non-party states is more problematic than similar efforts for state parties).
150. Id. at 596.
151. See Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya, 197 200 (Mar. 31, 2010) (performing brief gravity analysis that
mentioned potential involvement of high-ranking officials and "brutality" of certain acts);
Press Release, ICC-OTP, ICC Prosecutor to Judges: Kenya Crimes Resulted from a Policy
by Identifiable Leaders (Mar. 3, 2010), available at http://www.icc-cpi.int/menus/icc/press /
20and%20media/press%20releases/press%20releases%20(2010)/pr5O (prosecutor focusing
on involvement of political and business leaders in post-election crimes); Press Release,
ICC-OTP, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al
Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur (July 14, 2008),
available at http://www.icc-cpi.int/menus/icc/press /20and /20media/press%/20releases/
press%20releases%20(2008)/a (prosecutor alleging that "Al Bashir organized the
destitution, insecurity and harassment of the survivors. He did not need bullets. He used
other weapons: rapes, hunger, and fear. As efficient, but silent.").
152. Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar
Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi,"
Situation in the Libyan Arab Jamahiriya, Case No. ICC-01l11, 1194 (June 27, 2011)
(concluding that Gaddafi's arrest was necessary to "prevent him from continuing to use his
power and absolute control over the Libyan State apparatus to continue the commission of
crimes within the jurisdiction of the Court").
153. See supra note 97 and accompanying text (comparing the number of people
harmed in Kenya and Libya with the number of people harmed in Darfur and the DRC).
154. Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kaul, 146 (Mar. 31,
2010).
155. Situation in the Republic of Kenya, Case No. ICC-01/09-01/I 1, Application on
Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC
Statute, 2, 9 (Mar. 31, 2011).
156. The Truth, Justice and Reconciliation Act, (2008) Cap. 6 (Kenya), available at
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
http://www.tjrckenya.org/images/documents/TJRC-Act.pdf.
157. Prosecutor v. Taylor, Case No. SCSL-03-01-I, Decision on Immunity from
Jurisdiction, 149 (May 31, 2004) ("The nature of the offences for which jurisdiction was
vested in these various tribunals [i.e. the ICTY, ICTR, ICC, and Tokyo and Nuremberg
International Military Tribunals] is instructive as to the circumstances in which immunity is
withheld.").
158. Charles Jalloh, Immunity from Prosecution for InternationalCrimes: The Case of
Charles Taylor at the Special Court.Ibr Sierra Leone, AM. Soc'Y OF INT'L L., http://www.
asil.org/insigh I45.cfin#_edn6 (last visited Oct. 13, 2011).
159. Prosecutor v. Milosevic, Case No. IT-02-54, Decision on Preliminary Motions, 11
33 (Int'l Crim. Trib. for the Former Yugoslavia Nov. 8, 2001), http://www.icty.org/xlcases/
slobodan milosevic/tdec/en/ 1110873516829.htm (emphasis added). The ICJ may also have
implicitly relied on gravity when it declared in the Yerodia decision that international courts
are not required to respect immunity. See Arrest Warrant of 11 April 2000 (Dem. Rep.
Congo v. Belg.), 2002 I.C.J. 3, 7161, (Feb. 14, 2002).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
164. See Rome Statute, supra note 2, art. 3 ("[T]he most serious crimes of concern to
the international community as a whole must not go unpunished and . . .their effective
prosecution must be ensured by taking measures at the national level and by enhancing
international cooperation.").
165. Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision on Challenge to
Jurisdiction: Lom& Accord Amnesty, 182 (Mar. 13, 2004).
166. Id.
167. Id. at 28.
168. Prosecutor v. leng Sary, Criminal Case File No. 002/19-09-2007-ECCC/OCIJ
(PTC75), Decision on leng Sary's Appeal Against the Closing Order, 1201 (Apr. 11, 2011).
169. Id.
170. UN Secretary-General, Report on TransitionalJustice and the Rule of Lalv in
Conflict and Post Conflict Societies, 32 (Aug. 23, 2004), available at http:/daccess-dds-
ny.un.org/doc/UNDOC/GEN/NO4/395/29/PDF/NO439529.pdf?OpenElement.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
legal rules that protect defendants. Indeed, a Latin maxim holds that
"in delictis atrocissimus jura transgredi liceat" (with atrocious
crimes, legal rules can be relaxed). 178 Thus, for example, courts have
invoked gravity to reject defenses based on the principle of legality-
or nullum crimen sine lege. 179 That principle is designed to provide
notice to defendants of the types of conduct that are punishable and
thus ensure the fair application of the law.
International courts have repeatedly denied defendants' le-
gality defenses at least partly on the grounds that the crimes at issue
were so serious that the defendants should have known of their ille-
gality. For example, in the Tadic case, the ICTY Appeals Chamber
stated that defendants could be held liable under the newly minted
theory of joint criminal enterprise because "the moral gravity of such
participation is often no less-or indeed no different-from that of
those actually carrying out the acts in question." 180 Similarly, when
defendants at the ICTR objected that applying the new doctrine in the
context of internal armed conflicts violated the principle of legality,
the trial chamber replied that "any potential perpetrator was able to
understand that the criminalization of acts of such gravity did not de-
pend on the international or internal nature of the armed conflict." 181
178. E.g., Van Schaack & Slye, supra note 64, at 362; Mirjan Damaska, The Shadow
Side of Command Responsibility, 49 AM. J. ComP. L. 455, 482 (2001). See also Caroline L.
Davidson, May it Please the Crowd? The Role of Public Confidence, Public Order and
Public Opinion in Bail Ibr International Criminal Dendants, 43 COLUM. HUM. RTs. L.
REV. 349, 402 (2012) ("Arguably, the gravity of international crimes means that the
ordinary rules go out the window.").
179. See, e.g., NUREMBERG, supra note 20, at 444 ("[I]t is to be observed that the
maxim 'nullum crimen sine lege' is not a limitation on 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.");
Prosecutor v. Milutinovic, Sainovic & Ojdanic, Case No. IT-99-37-AR72, Decision on
Dragoljub Ojdanic's Motion Challenging Jurisdiction: Joint Criminal Enterprise, 111137-42
(Int'l Crim. Trib. for the Former Yugoslavia May 21, 2003) (rejecting defense of nullum
crimen sine lege, in part, because of grievous nature of accused's actions). See Van
Schaack, supra note 20, at 134 35 (2008) (citing, among other authorities, Prosecutor v.
Delalic, Mucic, Delic & Landzo, Case No. IT-96-21-T, Judgment, 403 (Int'l Crim. Trib.
for the Former Yugoslavia Nov. 16, 1998)).
180. Prosecutor v. Tadic, Case No. IT-94-1 -A, Judgment, 191 (Int'l Crim. Trib. for the
Former Yugoslavia July 15, 1999).
181. Prosecutor v. Karemera, Case No. ICTR-98-44-T, Decision on the Preliminary
Motions by the Defence of Joseph Nzirorera, Edouard Karemera, Andre Rwamakuba and
Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, 44
(May 11, 2004).
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
182. Prosecutor v. Brima, Kamara & Kanu (AFRC Case), Case No. SCSL-04-16-A-675,
Judgment, 1111175-86, 293-97 (Feb. 22, 2008); see also Micaela Frulli, Advancing
International Criminal LaI: The Special Court for Sierra Leone Recognizes Forced
Marriageas a 'New' Crime against Humanity, 6 J. INT'L CRIM. JUST. 1033 (2008).
183. Van Schaack, supra note 20, at 168.
184. Id. at 124.
185. See supra notes 98 110 and accompanying text.
186. Ambos, supra note 114, at 178.
187. Shabram Dana, Beyond Retroactivity to Realizing Justice: A Theory on The
Principle of Legality in International Criminal LaIw Sentencing, 99 J. CRIM. L. &
CRIMINOLOGY 857 (2009).
188. NANCY A. COMBS, FACT-FINDING WITHOUT FACTS: THE UNCERTAIN EVIDENTIARY
FOUNDATIONS OF INTERNATIONAL CRIMINAL CONVICTIONS 21-43, 79-100, 149 (2010).
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
189. Id. at 5.
190. Id. at 6.
191. Id. at 364.
192. Id. at 244.
193. See Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kau], 150 (Mar. 31, 2010)
("While I accept that some of the violence appears to have been organized and planned in
advance, I fail to see the existence of an 'organization' behind the violent acts which may
have established a policy to attack the civilian population within the meaning of article
7(2)(a) of the Statute."). Moreover, at least for the ICC, there are good reasons to argue that
the exercise of jurisdiction should not be limited to leaders of criminal organizations. See
generally deGuzman, Choosing to Prosecute, supra note 10 (arguing that the ICC's focus
should be on expressing moral norms through a small number of illustrative prosecutions).
194. See Caroline L. Davidson, No Shortcut on Human Rights: Bail and the
International Criminal Trial, 60 AM. U. L. REV. 1,33 34 (2010).
195. Id. at 33. See also Johan David Michels, CompensatingAcquitted Dqendants br
Detention he/ore International Criminal Courts, 8 J. INT'L CRIM. JUST. 407, 415 (2010)
(citing Prosecutor v. Delalic, Case No. IT-96-21-A, Decision on Motion for Provisional
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
CONCLUSION
Release Filed by the Accused Zejnil Delalic, 20 (Int'l Crim. Trib. for the Former
Yugoslavia Sept. 25, 1996)). In Delalic, the ICTY trial chamber stated that "both the
gravity of the offences charged and the unique circumstances in which the International
Tribunal operates justify the shifting of the burden to the accused and the requirement that
he show exceptional circumstances to qualify for provisional release." Prosecutor v.
Delalic, Case No. IT-96-21-A, Decision on Motion for Provisional Release Filed by the
Accused Zejnil Delalic, 20 (Int'l Crim. Trib. for the Former Yugoslavia Sept. 25, 1996).
196. Mirjan Damaska, The Competing Visions qo Fairness: The Basic Choice for
InternationalCriminalTribunals, 36 N.C. J. INT'L L. & COM. REG. 365, 380 (2011).
197. Id. at 370.
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
been a convenient tool for mediating this tension. Thus, for example,
the international community used gravity's ambiguity to build the
consensus needed to create the ICC.
In many past situations the ambiguity of "gravity" was not
problematic because most people agreed that the balance tipped
strongly in favor of accountability. As the international criminal law
regime expands to address situations and cases closer to the margins,
however, it becomes increasingly important to surface the interests at
stake in decisions about international adjudication rather than mask-
ing them with this ambiguous concept. The process of identifying
fully the relevant interests and developing a procedure for balancing
them will require substantial effort from the regime's prosecutors and
judges, as well as its various stakeholders, including political leaders.
Part of that process will be to refine the regime's use of the
concept of gravity. Current efforts to understand gravity in the con-
text of decisions about international adjudication focus on identifying
factors that, considered collectively, are said to be constitutive of
gravity. 198 The problem with such factor-based tests is that when the
factors are conceived broadly the test is almost infinitely malleable
and when they are narrowed the test constrains the regime in ways
that undermine its intended goals.
Thus far, most articulations have been loose. The ICC prose-
cutor and judges have included in their gravity analyses broadly con-
ceived factors such as the scale of the crimes, the nature of the
crimes, the means of their commission and their impact. 199 Such fac-
tors do little to alleviate gravity's ambiguity because they are easily
manipulated to reach a desired outcome-usually prosecution. 200 If
the number of victims is low the decision-maker can emphasize the
broader impact. Likewise, if the impact is unclear the decision-
maker can highlight the means of commission. There is almost al-
ways some aspect of an international crime that can be reasonably la-
beled grave.
One pretrial chamber proposed a narrower factor-based test.
It declared that to be sufficiently grave for ICC adjudication, cases
must involve widespread or systematic criminality and target the
most responsible organizational leaders. 20 1 The Appeals Chamber
rejected the test, however, in part on the grounds that it would un-
dermine the Court's ability to deter crimes-non-leaders would have
nothing to fear from the ICC.202
The Appeals Chamber was right. In fact, virtually any effort
to narrow the gravity factors would undermine some goal of interna-
tional prosecution. For example, limiting international adjudication
to crimes resulting in large numbers of victims would undermine the
Court's ability to prevent crime by prosecuting attempt or early-stage
crimes. It would also exclude from the regime conduct with limited
numbers of direct victims but substantial ancillary harm such as the
killing of a political leader.
Even more importantly, a narrowly conceived factor-based
test would reduce the ICC's ability to stimulate national prosecutions.
Although there is significant debate about the ICC's ability to ac-
complish directly its various goals, 20 3 many commentators agree that
the Court's most significant potential impact lies in stimulating na-
tional prosecutions of international crimes. A narrow gravity test
would reduce the Court's reach and thus its ability to spur accounta-
bility at the national level. 20 4 In sum, a broad gravity test fails to re-
solve the problem of ambiguity and a narrow interpretation resists
expansion at the cost of the regime's key objectives.
The solution to this dilemma lies, at least in part, in acknowl-
edging the relationship between gravity determinations and the inter-
ests at stake in decisions about international adjudication. When
gravity is used to determine the appropriateness of international ad-
judication it has little meaning in the abstract. In this context, the
purpose of gravity is to identify the extent of the international com-
Pre-Trial Chamber l's Decision of 10 February 2006 and the Incorporation of Documents
into the Record of the Case Against Mr. Thomas Lubanga Dyilo, Annex 1,111146, 50 (Feb.
24, 2006). This decision was overturned on appeal. See in/ra note 203.
202. Prosecutor v. Ntaganda Dyilo, Case No. ICC-01/04-169, Judgment on the
Prosecutor's Appeal, 1]I]
73-75 (July 13, 2006).
203. See deGuzman, Choosing to Prosecute,supra note 10, at 301 320.
204. Additionally, the controversial principle of universal jurisdiction holds that any
state can adjudicate international crimes. The expansion of these crimes may therefore
encourage a broader application of universal jurisdiction. See Maximo Langer, The
Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational
Prosecution of international Crimes, 105 AM. J. INT'L L. 1, 1 (2011) (citing Restatement
(Third) of the Foreign Relations Law of the United States §§ 402 & cmts. c-g, 404 & cmts.
a b, 423 (1987)); see also Bruce Broomhall, Tolvards the Development qf an Eftctive
System of Universal Jurisdictionfir Crimes under InternationalLaw, 35 NEw ENG. L. REV.
399, 401 02 (2001) (stating that the rationales underpinning international criminal law also
support the application of universal jurisdiction).
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