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ArticleTitle A Comprehensive View of International Criminal Law and Procedure
Article Sub-Title
Article CopyRight Springer Nature B.V.
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Journal Name Criminal Law Forum
Corresponding Author Family Name Weigend
Particle
Given Name Thomas
Suffix
Division
Organization University of Cologne
Address Köln, Germany
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Email Thomas.Weigend@uni-koeln.de
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Received
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Footnote Information Professor of Criminal Law (ret.), University of Cologne (Germany).

 Criminal Law Forum  Springer Nature B.V. 2018
https://doi.org/10.1007/s10609-018-9348-9
1
2 Book Review
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3 THOMAS WEIGEND*

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4 A COMPREHENSIVE VIEW OF INTERNATIONAL
5 CRIMINAL LAW AND PROCEDURE

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6
7
8 Reviewing:

9
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Review Essay of Kai Ambos, Treatise on International Criminal Law

10 International criminal law has been experiencing a boom for around

11 a quarter of a century. The United Nations’ establishment of the
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12 criminal tribunals for the former Yugoslavia (1993) and Rwanda

13 (1994) and the passing of the Statute of the permanent International
14 Criminal Court (ICC) have given rise to an extensive international
15 debate on both fundamental and individual issues of international
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16 criminal law – a legal field that in previous decades had been a rather
abstract matter dealt with by only a few specialists.
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17
18 In Germany, too, international criminal law has become part of
19 the curriculum at many law departments. However, only a handful of
20 German international criminal law specialists are represented in the
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21 international debate on the field.1 One of these scholars is Kai Am-

22 bos, who teaches criminal law at the University of Göttingen. Ambos
23 has been actively involved in the debate on international criminal law
24 from the very beginning. He took part in the international Confer-
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25 ence of Rome in 1998, at which the ICC Statute was passed, and was
26 also involved in the drafting of the German Code of Crimes under

* Professor of Criminal Law (ret.), University of Cologne (Germany).

1
For textbook authors, see Gerhard Werle and Florian Jeßberger, whose com-
prehensive Völkerstrafrecht (4th ed. 2016) has been published in independent editions
in other languages including Spanish (Tratado de Derecho Penal Internacional, 3rd
ed. 2017) and English (Principles of International Criminal Law, 3rd ed. 2014). A
further English-language publication is Satzger, International and European Criminal
Law, 2nd ed. 2018; on criminal procedure see Safferling, Towards an International
Criminal Procedure, 2nd ed. 2003.
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 THOMAS WEIGEND

27 International Law. Besides his major German-language textbook on

28 international criminal law2 Ambos has published on numerous
29 individual questions of international criminal law in English and in
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30 Spanish.3 This broad expertise forms the foundation for the work
31 presented in this essay: the three-volume Treatise on International

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32 Criminal Law, the individual volumes of which were published by
Oxford University Press in 2013, 2014 and 2016.4 The Treatise covers

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33
34 both substantive international criminal law (Vols. I and II) and the
35 procedural law and law of evidence of the international criminal
36 tribunals, especially the ICC (Vol. III).

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37 1 GENERAL REMARKS

38 The sheer volume of the Treatise alone is impressive: it is hard to imagine

39 how a single author – even with the support of diligent research assistants
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40 – could have produced a work of around 1500 pages in total, with a
41 comprehensive documentation5 and a vast number of (very extensive)
42 footnotes, and all in only a few years and alongside numerous other
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43 works. Ambos has succeeded admirably in building his account both on

44 the well-nigh unmanageable case law and the vast literature – including
45 in English, French and Spanish – on international criminal law.
46 The preface to Volume I reads: ‘‘The treatise pretends to fill a gap
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47 in the academic literature by offering a foundational, systematic,

48 comprehensive, and consistent account of [International Criminal
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49 Law]…’’ In light of the subject-matter’s many branches and numer-

50 ous ambiguities and controversies, this is a real labour of Hercules,
51 especially where ‘‘consistency’’ is concerned. The Treatise’s main
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52 emphasis lies on giving an account of the current state of debate, in

53 particular the relevant case law of the tribunals. The problems are
54 each presented in detail, although this detail is not always conducive
55 to clarity, especially for readers unfamiliar with the subject. However,
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56 this book is by no means a merely referential, distanced and neutral

2
Ambos, Internationales Strafrecht, 5th ed. 2018.
3
See in particular his habilitation thesis Der Allgemeine Teil des Völkerstrafrechts,
2002.
4
Ambos, Treatise on international Criminal Law, Vol. I: Foundations and General
Part, 2013; Vol. II: The Crimes and Sentencing, 2014; Vol. III: International
Criminal Procedure, 2016. In the following, passages from the Treatise will be
quoted by volume and page number without any further bibliographical references.
5
The list of specialist literature used in the volumes is so long that the publisher
has chosen not to print it, but instead place it on a website of its own.
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 A COMPREHENSIVE VIEW OF INTERNATIONAL CRIMINAL LAW

57 handbook; it is a highly personal work. Ambos has clear opinions on

58 many issues, and he does not attempt to hide them from the reader,
59 even though sometimes the reasons he gives for his own position are
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60 somewhat brief. As a non-native speaker, I cannot comment on the

61 work’s linguistic quality; in any case, the explanations are easy for

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62 German-speaking readers to understand.
Ambos takes a clear position on international criminal law: in his

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63
64 view, international criminal law is criminal law first and foremost.6 It
65 serves to protect individual and collective legal interests (I, 65) and
66 thus defend a value-based international order as well as the human
67 dignity of each individual ‘‘world citizen’’ (I, 58).7 The question of

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68 how punishment can serve these purposes is debated (I, 68 ff.)
69 without a clear-cut answer emerging; presumably, the author is most
70 in favour of positive general prevention in combination with a ‘‘di-
71 dactic, educative function’’ of punishment (I, 71).
72
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Following an introductory chapter on the history (I, 1) and the
73 conceptual foundation of international criminal jurisdiction (I, 54),
74 Ambos turns to the classic problems of the General Part, namely the
75 theory of criminal attribution or imputation (I, 81), the requirements
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76 for perpetration and participation (I, 102), criminal responsibility for

77 omission, particularly in the case of command responsibility (I, 180),
78 responsibility for attempt (I, 233), the subjective elements of crimes
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79 (I, 266) and finally the grounds for excluding responsibility (I, 301).
80 The second volume of the Treatise is dedicated to the Special Part.
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81 The first area dealt with is genocide (II, 1), followed by crimes against
82 humanity (II, 46), war crimes (II, 117) and the crime of aggression (II,
83 184). The author casts a side glance at treaty-based ‘‘international’’
84 crimes such as terrorism, enquiring in particular whether these of-
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85 fences have already become ‘‘true’’ crimes under international law or

86 whether this is something that can be expected to occur in future (II,
87 222). The volume concludes with observations on concursus delicto-
88 rum (II, 246) and sentencing (II, 267). Volume III, the longest vol-
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89 ume, focuses on questions of procedural law. It starts by providing an

90 overview of the foundations, history and aims of international
91 criminal procedure (III, 1). The rights of the accused are dealt with in

6
‘‘… the strong grounding in criminal law… converts ICL into criminal law on a
supra-national level and thus entails the full application of the well-known principles
of liberal, post-enlightenment criminal law, in particular the principles of legality,
culpability, and fairness’’ (I, 55).
7
Ambos rejects the objection that there can be no criminal law without a central
protective authority (I, 57).
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 THOMAS WEIGEND

92 detail (III, 57), followed by the legal position of the other parties
93 involved in the procedure (III, 99). After an overview of the general
94 rules governing the application of criminal law for crimes of
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95 transnational significance (III, 206), Ambos turns to the controversial

96 question of the ICC’s jurisdiction in relation to national courts

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97 (‘‘complementarity’’; III, 242). Subsequently, he delineates how
proceedings are conducted before the ICC (III, 334) as well as the

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98
99 rules on evidence and its admissibility (III, 446). A special section is
100 devoted to the question of disclosure (III, 520). The volume concludes
101 with sections on legal remedies (III, 548), the cooperation between the
102 ICC and national justice systems (III, 591), and the enforcement of

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103 sentences (III, 635).
104 It is of course not possible for this essay to present or even criti-
105 cally evaluate the huge range of thoughts and problems that the
106 author deals with in the three volumes. Accordingly, in the following
107
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I will (more or less randomly) single out a few points – in particular
108 points that raised questions or doubts.
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109 2 INDIVIDUAL QUESTIONS

110 2.1 General Part

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111 2.1.1 Attribution and the Theory of Perpetration

112 Ambos rightly states that the collective context of most crimes
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113 against international law constitutes a problem for the crucial issue of
114 attributing the realisation of an offence to individual perpetrators: it
115 is difficult to identify the individual contributions that make it pos-
116 sible to attribute relevant consequences to individual persons (I, 84).
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117 Ambos sees the concept of a collective ‘‘international or contextual

118 element (ÔGesamttat’)’’, the existence of which he regards as ‘‘part of
119 the definition of the international core crimes’’ (I, 85, 177), as the
120 solution for this. However, an ‘‘overall act’’ in the sense of the col-
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121 lective commission of a crime need not always be present in the case
122 of war crimes;8 furthermore, its presence does not solve the normative
123 problem of how the link between the individual and the collective
124 realisation of an offence, which the individual is unable to control on
125 his or her own, needs to be constituted. Here, Art. 25 ICC Statute
126 tries to reach a fair solution by differentiating between different forms

8
See Art. 8(1) ICC Statute: ‘‘The Court shall have jurisdiction in respect of war
crimes in particular when committed as part of a plan or policy or as part of a large-
scale commission of such crimes’’ (italics by the author).
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127 of perpetration and participation, so that there is no need to fall back

128 on forms of collective responsibility such as joint criminal enterprise
129 (thereto I, 123 ff., 160 ff.).
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130 Ambos understands the model of Art. 25 ICC Statute as ‘‘a uni-
131 tarian concept of perpetration in a functional sense (funktionelle

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132 Einheitstäterschaft)’’ (I, 146). This is correct in that all the forms of
participation listed there – including intentionally participating in the

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133
134 commission of a crime by a group – entail that ‘‘a person shall be
135 criminally responsible and liable for punishment for a crime’’ (Art.
136 25(3)(1) ICC Statute). However, the ICC also emphasises that the
137 different forms of participation are not equal, but need to be

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138 understood as graduated according to their order in the Statute (from
139 personal perpetration to group participation).9
140 Ambos takes a critical view of certain aspects of the ICC’s case law
141 on questions of perpetration and participation. Thus he accuses the
142
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Pre-Trial Chamber of proceeding in a methodologically dubious
143 manner in its decision on the Bemba10 case, as it failed to resolve
144 whether the objective requirements of co-perpetration were present
145 and instead stated that the subjective requirements were missing:
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146 ‘‘This methodological approach is questionable since the subjective

147 requirements come after the objective ones and should not be invoked
148 to Ôbypass’ the objective requirements’’ (I, 152). On the other hand,
the author praises the Trial Chamber in Lubanga11 for not consid-
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149
150 ering it necessary that a co-perpetrator be present at the scene of the
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151 crime: ‘‘The physical absence of a co-perpetrator can be compensated

152 by his superior psychological or intellectual contribution, which
153 normally already dominates the preparatory stage of the commis-
154 sion’’ (I, 153). Both of these statements reveal a tendency on Ambos’s
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155 part12 to present the views regarded as ‘‘prevailing’’ in German law as

156 the correct solutions to the parallel questions of international crimi-
157 nal law. Given that the influence of German criminal law doctrine on
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9
ICC, Pros. v. Lubanga Diylo, Appeals Chamber, Judgment of 1 December 2014,
§ 462. On this question, see Werle and Jeßberger, Völkerstrafrecht, 4th ed. 2016, mn.
542 et seq. incl. references.
10
ICC, Pros. v. Bemba Gombo, Pre-Trial Chamber, Decision of 15 June 2009, §
350.
11
ICC, Pros. v. Lubanga Diylo, Appeals Chamber, Judgment of 14 March 2012,
§§ 1003–1105.
12
For further examples, see the observations on withdrawal from attempt (I, 264
f.), on guarantors’ duties (I, 183 f.) and on ‘‘(parallel) layman’s insight’’ concerning
mistakes about normative offence elements (I, 290).
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158 some decisions of the ICC chambers is already quite strong,13 it might
159 be more advisable to recommend promoting ‘‘autonomous’’ solutions
160 for international criminal law; at any rate, German theories should
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161 not form the primary standard by which to determine the correctness
162 of international criminal law arguments.

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2.1.2 Omission

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163
164 In the ICC Statute, there are no general rules on the punishability of
165 omitting to prevent a consequence, and the general question of lia-
166 bility for omissions in international criminal law is controversial.
167 Ambos asks whether any such punishability arises from customary

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168 international law or as a general rule. He presents the (different)
169 solutions reached in different legal systems, arriving at the answer:
170 ‘‘… there may be a general principle which could be framed in the
171 following, not entirely certain terms: serious criminal results brought
172
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about by omissions (instead of acts), for example causing someone’s
173 death, shall be punishable as a Ôcommission by omission’ if a corre-
174 sponding duty to act exists and the agent had the material ability to
175 act. (…) This approach is also confirmed by a linguistic interpretation
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176 of the term Ôcommission’ for it encompasses both act and omission’’
177 (I, 194). Therein lies a hesitant affirmation of a ‘‘general principle’’,
178 the reasons for which (why does ‘‘commission’’ also contain ‘‘omis-
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179 sion’’?) remain questionable, however. The principle’s limited scope

180 (why only for ‘‘serious criminal results’’?) also remains unexplained.
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181 Concerning the conditions of a ‘‘duty to act’’, Ambos initially refers

182 to the distinction between protective and supervisory duties (I, 184)
183 often encountered in Germany – which of course describes only the
184 content of guarantors’ duties, not their reason. Ambos then intro-
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185 duces, as the ‘‘sole, all-embracing criterion to establish omission

186 liability’’, a ‘‘theory of control’’, according to which anyone who has
187 control over the ‘‘relevant dangerous event’’ is a guarantor (I, 195).
188 This general reasoning supports the responsibility of commanders
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189 pursuant to Art. 28 ICC Statute, but its scope is overly wide: after all,
190 a chance passer-by who would be able to save a drowning person
191 with a rope that he is carrying does not become a guarantor for the
192 drowning individual’s life simply because it is possible for him to save
193 that individual. The problems with Ambos’s approach become evi-
194 dent in the question of participation through omission (I, 196). Here,
195 the author claims that he ‘‘who controls the act or omission, that is,

13
See Weigend, Journal of International Criminal Justice 9 (2011), 91.
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 A COMPREHENSIVE VIEW OF INTERNATIONAL CRIMINAL LAW

196 the events unfolding and resulting in criminal harm’’ can be liable as
197 a perpetrator of an omission. This may be so – but what then are the
198 grounds for holding responsible as an accessory to the omission a
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199 person who by definition lacks control over the events?

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200 2.1.3 Command Responsibility
The punishability of a military or civilian superior for the crimes of

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201
202 his or her subordinates, if he or she (whether deliberately or negli-
203 gently) fails to prevent their crimes or subsequently fails to punish
204 them, is a special trait of international criminal law arising from
205 somewhat murky historical sources. Ambos presents the roots of this

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206 legal concept and its application in particular by the ad hoc tribunals
207 (I, 197 ff.). However, the reason for command responsibility remains
208 unclear, oscillating between liability for one’s own wrongdoing and
209 having to take responsibility for the wrongful acts of others (I, 206).
210
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The question of whether the commander’s omission to exercise the
211 necessary control over his or her subordinate is (or needs to be) a
212 cause of the latter’s commission of a crime is particularly problem-
213 atic. Here, Ambos seeks to draw upon the theory of ‘‘increased risk’’
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214 (Risikoerhöhungslehre) familiar from German literature, positing that

215 the fact that the actions expected of the commander would have
216 reduced the likelihood of the crime being carried out by the subor-
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217 dinate is enough to establish the commander’s liability. His reasoning

218 is: ‘‘In any case, the risk approach also amounts to a causality test in
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219 the sense that the increased risk needs to be at least one of the causes
220 of the harmful result’’ (I, 216). However, this raises the question of
221 how a normative concept (‘‘the increased risk’’) is able to constitute a
222 cause in the real world. In actual fact, Ambos is primarily concerned
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223 with eradicating problems of evidence.14 But such problems do not

224 weigh more heavily here than in other omission offences;15 and the
225 attribution of consequences should be based upon factual criteria and
226 not aim to make proving guilt easier.
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14
‘‘… the existence of an exact causal relationship between the failure to supervise
and the commission of the crimes can hardly be proven ex post’’ (I, 216).
15
Why should a court not be able to determine that a superior, had he explicitly
prohibited a certain act as could be expected of him, would almost certainly have
motivated his subordinates not to carry out this act?
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227 2.1.4 Mens Rea

228 Art. 30 ICC Statute contains a confusing regulation concerning the
229 mens rea required for punishability. Art. 30(1) of the Statute requires
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230 – unless otherwise provided16 – ‘‘intent and knowledge’’ for an

231 individual to be held liable. Pursuant to Art. 30(2), ‘‘intent’’ is present

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232 if the perpetrator intended his or her own actions and, regarding a
consequence, ‘‘means to cause that consequence or is aware that it

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233
234 will occur in the ordinary course of events’’. Rather confusingly, Art.
235 30(3) then defines ‘‘knowledge’’ likewise as the perpetrator assuming
236 that a consequence will occur ‘‘in the ordinary course of events’’.
237 Ambos wants to do away with this doubling of the same requirement

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238 by making either ‘‘intent’’ or ‘‘knowledge’’ sufficient in regard to
239 ‘‘consequences’’ (I, 275). However, this interpretation diverges from
240 the unambiguous wording of Art. 30(1) ICC Statute – to the disad-
241 vantage of the accused. Furthermore, it would render the variant of
242
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‘‘intent’’ superfluous, as it would in any case be sufficient for the
243 perpetrator to have expected the consequence to occur in the normal
244 course of events.
245 The question of whether international criminal law and specifically
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246 the ICC Statute also encompasses dolus eventualis is disputed in the
247 case law.17 Ambos claims that this is not the case, drawing on dis-
248 tinctions between dolus eventualis, recklessness and conscious negli-
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249 gence (I, 277 f.). However, these terms are more confusing than
250 helpful, as each of them is ascribed different meanings not just in the
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251 German but also in the international debate. The ‘‘ordinary course of
252 events’’ concept in Art. 30 ICC Statute probably encompasses some
253 cases categorized as dolus eventualis in Germany, namely the situation
254 that the perpetrator considers the occurrence of the consequence to
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255 be (very) likely – in which case no additional voluntative element is

256 required under international criminal law. By contrast, if the perpe-
257 trator only considers the occurrence of the consequence to be pos-
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16
Unlike other authors (see e.g. Werle and Jeßberger, Principles of International
Criminal Law, 3rd ed. 2014, mn. 485–488), Ambos rightly interprets the clause
‘‘unless otherwise provided’’ to mean that only the norms of the ICC Statute itself
permit any divergence from Art. 30 ICC Statute (I, 291 f.). In the meantime, how-
ever, the ICC has decided that regulations in the Elements of Crimes are also to be
regarded as leges speciales that take precedence over Art. 30 ICC Statute; ICC, Pros.
v. Germain Katanga, Trial Chamber, Judgment of 7 March 2014, § 770.
17
See the references in I, 276–277.
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 A COMPREHENSIVE VIEW OF INTERNATIONAL CRIMINAL LAW

258 sible, he is not acting with intent and knowledge within the meaning
259 of Art. 30 ICC Statute.
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260 2.1.5 Grounds for Excluding Criminal Responsibility

261 In Art. 31, the authors of the ICC Statute have listed different cases in

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262 which the perpetrator’s criminal responsibility should be excluded
even though both the mens rea and the actus reus are present. Unlike

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263
264 in many European legal systems, no distinction is made between
265 grounds of justification and grounds excluding culpability. Ambos,
266 who is critical of the ICC Statute’s ‘‘unitary’’ approach (I, 309 f.),
267 discusses in detail Art. 31 as well as other possible grounds for im-

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268 punity that are not mentioned in the Statute. The sections on insanity
269 (I, 314 ff.), intoxication (I, 324 ff.) and the ‘‘procedural defences’’,
270 especially ne bis in idem as well as immunity and amnesty (I, 396 ff.),
271 which are instructive, clearly written and based on excellent com-
272
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parative legal analyses, merit particular mention.
273 It is difficult to give a clear, understandable explanation of the
274 regulation on necessity (Notstand) in Art. 31(1)(d) ICC Statute. It
275 reflects neither the usual Anglo-American distinction between duress
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276 and necessity (caused by natural events) nor the continental Euro-
277 pean distinction between justifying and excusing necessity, but in-
278 stead brings all of these different aspects together in one rule. Ambos
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279 first presents Anglo-American law (I, 342 f.), looking at different
280 national legal systems, and the case law of the ICTY specifically on
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281 duress (I, 348 ff.).18 He states that duress can only be an excuse (I,
282 347, 364 f.) and therefore criticises the equal footing on which Art.
283 31(1)(d) ICC Statute places necessity and duress caused by ‘‘human’’
284 sources (I, 356). However, there can be justification in cases of duress
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285 (for example, if the perpetrator is threatened with death if he does not
286 physically injure a third person); and on the other hand, Art. 31(1)(d)
287 ICC Statute clearly adopts the solution of weighing the quantity of
288 (potential) harm even in the case of killings, as impunity is granted if
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289 the perpetrator under duress ‘‘does not intend to cause a greater harm
290 than the one sought to be avoided’’.
291 Mistakes are regulated in Art. 32 ICC Statute: criminal respon-
292 sibility is excluded if a mistake of fact or of law negates the actor’s
293 intent (Art. 32(1) and (2), second sentence); a mistake of law as to
294 whether the act is prohibited – apart from the special case of acting

18
Especially the controversial decision ICTY, Pros. v. Erdemovic, Appeals
Chamber, Judgment of 7 October 1997.
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 THOMAS WEIGEND

295 under orders – is legally irrelevant (Art. 32(2), first sentence). For
296 mistakes of fact concerning grounds of justification, which are not
297 explicitly regulated in the Statute, Ambos suggests an analogy to
Author Proof

298 mistakes of fact (I, 374–375.). However, his reason (‘‘such an actor
299 does not intentionally commit a wrong’’) is not entirely convincing, as

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300 the same would also apply to the perpetrator who makes a pure
mistake of law. Ambos is dissatisfied with the general lack of rele-

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301
302 vance of mistakes of law; here, he once again shows a preference for
303 the perspective of German law over that of international criminal
304 law. While the solution he suggests (‘‘Article 32 (2) ICC Statute
305 should be interpreted in a more flexible or liberal way, taking re-

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306 course to a criterion of avoidability or reasonableness, which would
307 enable the judges to find practical and just solutions on a case-by-case
308 basis’’; I, 375–376) sounds reasonable,19 it would probably give rise
309 to uncertainty, especially as Ambos does not offer any standards for a
310 ‘‘case by case’’ solution.
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311 2.2 Special Part and Sentencing
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312 The second volume of the Treatise deals with the four core crimes of
313 international criminal law. Given the numerous single offences that
314 make up crimes against humanity (Art. 7 ICC Statute) and war
315 crimes (Art. 8 ICC Statute), the author rightly restricts himself largely
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316 to providing an overview and discussing fundamental issues. Here,

317 the account of the main contentious points in the definition of armed
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318 conflict (II, 122–123) and the crime of aggression (II, 184 et seq.)
319 proves very helpful and illuminating.
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320 2.2.1 Genocide

321 Concerning the crime of genocide (Art. 6 ICC Statute), Ambos seems
322 to tend towards the view (II, 39; a different opinion is put forward in
323 II, 14, however) that the definition of the crime is fulfilled if the
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324 perpetrator’s aim is not to physically destroy a group, but to destroy

325 it as a ‘‘social entity’’.20 This would markedly expand the crime of

19
The suggested methodological route of taking account of unavoidable mistakes
of law through Art. 31(3) in conjunction with Art. 21 ICC Statute (I, 376) would
require such a ‘‘general principle’’ to be proven to exist in the ‘‘national laws of legal
systems of the world’’ (Art. 21(1)(c) ICC Statute). This would be difficult, however,
given the reticence of the Anglo-American legal systems towards recognising mis-
takes of law.
20
For a similar view, see Werle and Jeßberger, Principles of International Criminal
Law, 3rd ed. 2014, mn. 847.
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326 genocide’s scope of application, for example, to cases of forced dis-

327 placement; then again, the understanding embraced by Ambos is
328 better able to explain the crime of the forcible transfer of children
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329 (Art. 6(e) ICC Statute) than the internationally predominant

330 opposing view.21 The question of whether the ‘‘intent to destroy’’

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331 demanded in Art. 6 ICC Statute requires a specific intent or whether
it is sufficient for the perpetrator to expect that the destruction will

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332
333 occur is fiercely debated.22 Ambos suggests requiring intent for top-
334 and middle-level commanders, while knowledge alone should suffice
335 for those who simply carry out orders (II, 34 et seq.). While this view
336 reflects the reality of many cases of genocide, it raises two problems:

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337 firstly, one and the same intent would have to be interpreted differ-
338 ently for different groups of persons, who cannot be clearly distin-
339 guished from one another to boot; secondly, the threshold for the
340 criminal responsibility of subordinates would be lower than for their
341 superiors.23
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342 2.2.2 ‘‘Treaty Crimes’’
343 Ambos uses the term ‘‘treaty crimes’’ to describe offenses that a large
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344 number of states have agreed to combat jointly (II, 222–223). For
345 some of these crimes, the question arises of whether they can only be
346 punished according to national criminal law, or whether they can be
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347 sanctioned independently under international law. Ambos assumes a

348 shift to a ‘‘true’’ international crime if a prohibition under an inter-
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349 national agreement concerns the violation of a universally significant

350 legal interest and the perpetrator is individually criminally responsi-
351 ble regardless of national legislation (II, 227). However, the latter
352 part of this definition is probably more likely to be the consequence
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353 of the classification as a crime under international law than its pre-
354 condition. While Ambos affirms that the ancient crime of piracy
355 constitutes an international crime (II, 240–241), he rejects this clas-
356 sification for terrorism (II, 232 et seq.): while international consensus
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357 exists on the definition of terrorism, at least outside armed conflict,

21
See ICTY, Pros. v. Krstic, Appeals Chamber, Judgment of 19 April 2004, § 26;
Kreß, International Criminal Law Review 6 (2006), 461 at 486; Schabas, Genocide in
International Law, 2nd ed. 2009, pp. 221 et seq.
22
See the discussions in Kreß, in: Safferling (ed.), Münchener Kommentar zum
Strafgesetzbuch, vol. 8, 3rd ed. 2018, § 6 VStGB mn. 78 et seq.; Werle and Jeßberger,
Principles of International Criminal Law, 3rd ed. 2014, mn. 841–2.
23
For a similar proposal see van der Wilt, Journal of International Criminal Justice
4 (2006), 239 at 243 et seq..
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358 the applicability of universal jurisdiction is lacking. For this reason,

359 terrorism is, ‘‘at best, on the verge of becoming a true international
360 crime’’ (II, 234). I concur with this conclusion, although I still have
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361 some doubts as to whether a consistent definition exists, despite

362 various attempts to develop one in international treaties.

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2.2.3 Sentencing

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363
364 The sentencing of international criminal tribunals has only recently
365 become the focus of academic study. Ambos dedicates a detailed
366 chapter to this field (II, 267 et seq.). He rightly criticises that the sta-
367 tutes of the criminal tribunals provide hardly any concrete guidelines

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368 on sentencing (II, 271 et seq.); whether this constitutes (as the author
369 claims) a violation of the nulla poena sine lege principle is doubtful, as
370 the principle of certainty in international criminal law has hitherto only
371 been related to the requirements of criminal responsibility. Ambos
372
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rightly calls for guidelines to better harmonise sentencing decisions (II,
373 286, 302 et seq.). However, Ambos’s own reflections, for example on a
374 ‘‘proportionality principle’’ between the offender’s culpability and the
375 punishment (II, 286–287), show that defining concrete factors for any
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376 such guidelines will likely prove a challenge. The suggestion to draw on
377 national laws on international crime when determining ranges of pe-
378 nalties (II, 303–304) may prove to be less than helpful, as these norms
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379 are embedded in the respective national legal system’s sentencing

380 standards and are thus incompatible with one another.
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381 2.3 Procedural Law

382 The third volume, which is dedicated to procedure, starts with a short
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383 overview of the procedural models of the continental European (‘‘in-

384 quisitorial’’) and the common law traditions (‘‘adversarial’’), which are
385 frequently understood as two contrasting systems (III, 1 et seq.).
386 Ambos then shows (III, 8–9) that the criminal procedure of interna-
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387 tional tribunals was initially (especially in the Nuremberg War Crimes
388 Trial) strongly shaped by English and American procedural rules, but
389 that this influence had waned by the time the ICC Procedural Code
390 was drawn up. We can now speak of a true mixed model with a
391 particular emphasis on the protection of human rights (III, 44).

392 2.3.1 Procedural Goals and the Legal Position of Parties to the Pro-
393 ceedings
394 Ambos lists as the specific goals of international criminal proceedings
395 establishing an ‘‘accurate historical record’’ (III, 48–49), the

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396 ‘‘restoration of international peace and security’’ (III, 49), and the
397 satisfaction of victims (III, 51–52). However, he recognises that
398 ‘‘these are highflying goals which entail the risk of creating overex-
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399 pectations’’ (III, 50), so that ultimately one should keep to the ‘‘socio-
400 pedagogical’’ goal of establishing justice (III, 56).

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401 The following section (III, 57 et seq.) deals with the procedural
rights of the accused, albeit mainly according to the ECHR, which

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402
403 only has regional significance. Here, Ambos engages critically with
404 the much-debated ‘‘overall assessment’’ of procedural fairness within
405 the meaning of Art. 6(1) ECHR by the European Court of Human
406 Rights (III, 95 et seq.), but ultimately accepts it: ‘‘Ultimately, it must

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407 be determined on a case-by-case basis whether the individual fair trial
408 restrictions taken all together amount to an overall unfair trial’’ (III,
409 98).
410 Only after this detour does Ambos turn to the procedural codes of
411
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the international criminal tribunals, especially that of the ICC. Here,
412 he describes the position of the various parties in the trial, based on
413 the Statute and the ICC’s Rules of Procedure and Evidence (III, 99 et
414 seq.). Regarding the prosecutor, the author addresses the critical
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415 question of prosecutorial strategy (III, 134–135, 376 et seq.). The

416 prosecutor’s discretion when selecting cases is practically impossible
417 to review, at least as far as non-prosecution is concerned. Ambos
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418 criticises the lack of a written general strategy, but at the same time
419 recognises that it is difficult, if not impossible, ‘‘to formulate a general
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420 strategy… without taking recourse to generalities and platitudes’’

421 (III, 135).
422 Ambos draws on the previous section when elaborating the legal
423 position of the accused. The extent to which the accused has the right
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424 to represent himself – an issue that occupied the ICTY in particular in

425 the Milosevic, Seselj and Karadzic trials – is addressed comparatively
426 briefly. Ambos is of the opinion that the right to self-representation
427 must stand back if it collides with the right of the chambers ‘‘to
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428 conduct their trials as smoothly as possible’’ (III, 166). This standard
429 seems to me to overly restrict the accused’s freedom ‘‘to conduct the
430 defence in person’’ (Art. 67(1)(d) ICC Statute).
431 The discussion of the legal position of the victims is fully aware of
432 the problematic issues involved and is pleasantly concise (III, 167 et
433 seq.).24 When the ICC was established, victims – unlike previously in

24
Cf. the account of the issues in Bock, Das Opfer vor dem Internationalen
Strafgerichtshof, 2010.
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434 the ad hoc tribunals – were granted far-reaching participation rights

435 and the prospect of compensation. While this decision was well-
436 meant, it has created serious problems in practice – problems that
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437 Ambos identifies clearly. First of all, the question of whether some-
438 one is able to exercise their rights as a victim depends on the prose-

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439 cutor’s selection of cases, which as mentioned above is impossible to
review (III, 178). Moreover, each case typically involves hundreds or

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440
441 thousands of victims (for example the recruitment of child soldiers in
442 the Lubanga case). Hearing each of them individually would bring
443 proceedings to a grinding halt, and so the Court may insist on their
444 joint legal representation (Art. 68(3), second sentence ICC Statute;

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445 thereto III, 187–188). The rights of the victims and those of the ac-
446 cused may conflict, especially if victims wish to remain anonymous
447 for their own protection when acting as witnesses for the prosecution
448 (III, 178–179). Lastly, the regulation of (individual or collective?)
449
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reparations to the victims is not free of doubts, both of a legal nature
450 and in regard to content (III, 194 et seq.).25

451 2.3.2 Questions of Jurisdiction

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452 A general excursus on international criminal jurisdiction precedes the

453 discussion proper (III, 206 et seq.). While the questions of jurisdiction
454 ratione loci (III, 244 et seq.), the referral of a situation by the UN
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455 Security Council (III, 255 et seq.), and the proprio motu initiation of
456 proceedings by the prosecutor (III, 264 et seq.) are covered relatively
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457 briefly, the author deals extensively with ‘‘complementarity’’ (III, 266
458 et seq.). This section contains interesting reflections on a number of
459 individual points. For example, Ambos gives several good reasons for
460 his assumption that a state cannot claim complementarity if its
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461 jurisdiction is based only on the universality principle; as the repre-

462 sentative of the international community, the ICC is called particu-
463 larly to deal with such cases (III, 269). Ambos wishes to measure the
464 admissibility criterion of a case’s ‘‘sufficient gravity’’ (Art. 17(1)(d)
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465 ICC Statute) by the significance of the act as such – and generously in
466 favour of the jurisdiction of the ICC; other considerations should
467 play a role only when exercising the discretion of the prosecution
468 pursuant to Art. 53 ICC Statute (III, 292 et seq.). Ambos also opines
469 that the (concluded) conducting of a national criminal trial that
470 suffered from grave legal flaws should not constitute an obstacle to

25
For an empirical view on issues of reparation, cf. Hoven, Feiler and Scheibel,
Victims in Trials of Mass Crimes, 2013.
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471 the ICC taking over the case; here, too, the national justice system
472 has shown itself unable or unwilling ‘‘genuinely to prosecute’’ (cf.
473 Art. 17(1)(b) ICC Statute; III, 315 f.).
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474 2.3.3 Proceedings Before the ICC

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475 The following section (III, 334 et seq.) provides a concentrated, clear
overview of proceedings before the ICC, drawing on the relevant

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476
477 norms and case law. The cooperation between the Office of the
478 Prosecutor and the Pre-Trial Chamber is a special feature of ICC
479 proceedings. The Pre-Trial Chamber has the task of independently
480 monitoring the initiation of investigations by the Prosecutor (Art.

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481 15(3) and (4) ICC Statute), key stages of the investigation such as the
482 arrest of a suspect (Art. 57 and 58 ICC Statute), as well as the
483 indictment (Art. 61 ICC Statute) (thereto III, 345 et seq.). Once the
484 Pre-Trial Chamber has confirmed the charges, these are set and the
485
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prosecutor is no longer able to change them without authorisation
486 (III, 418–419). At the trial, the presentation of evidence is basically
487 left to the parties; however, as Ambos rightly points out (III, 363), the
488 trial contains distinct inquisitorial elements, especially the Trial
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489 Chamber’s power to order the presentation of additional evidence

490 (Art. 64(6)(d) ICC Statute) (III, 453–454).
491 Ambos takes a critical view of the ICC Statute’s regulation on
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492 ‘‘Proceedings on admission of guilt’’ (Art. 65 ICC Statute; III, 433 et

493 seq.). In contrast to the regulation on guilty pleas at the ad hoc tri-
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494 bunals, an admission of guilt at the ICC does not preclude the taking
495 of evidence. An admission constitutes evidence that may suffice to
496 convict the accused (Art. 65(2) ICC Statute). However, the Trial
497 Chamber may also present further evidence if it considers this to be
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498 ‘‘in the interests of justice, in particular the interests of the victims’’
499 (Art. 65(4) ICC Statute). Ambos believes this is an ‘‘Ôoverregulation’
500 of the guilty plea in a manner that undermines its function as a
501 procedural shortcut’’ (III, 445); he thinks that too much weight is
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502 placed on the victims’ wishes and on the general interest in estab-
503 lishing the ‘‘abstract truth’’ (III, 442, 444). However, Ambos does not
504 explain why the aim of a ‘‘procedural shortcut’’ should override the
505 general interest in truth-finding.

506 2.3.4 Evidence Law

507 Ambos devotes around 70 pages to evidence law (III, 446 et seq.). He
508 first attempts to untangle the difficult terminology of the require-
509 ments for the admissibility of evidence in court proceedings in Art.

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510 69(4) ICC Statute, bringing out the difference between the relevance,
511 probative value and reliability of pieces of evidence (III, 448 et seq.).
512 He then goes on to show that the rules on evidence in ICC trials are
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513 looser than the strict rules applying in common law legal systems; in
514 particular, hearsay evidence is admissible, and there is no need for

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515 corroboration even for ‘‘weak’’ pieces of evidence (III, 473 et seq.). A
good explanation is provided of the controversy between individual

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516
517 chambers of the ICC concerning the intense preparation of witnesses
518 for their statements by the party calling them (‘‘witness proofing’’)
519 (III, 478 et seq.), as well as of the semi-neutral position of expert
520 witnesses (III, 482 et seq.).

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521 For the ICC (as for every criminal court), the question arises of
522 whether unlawfully obtained pieces of evidence are admissible (III,
523 513 et seq.). Here, Ambos constructs a somewhat arcane verbal
524 contrast between ‘‘exclusionary rule’’ (which supposedly applies un-
525
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der common law) and ‘‘mere inadmissibility’’ (in the continental
526 European legal systems) (III, 514). In actual fact, both terms refer to
527 the perspective of the adversarial trial which is concerned with
528 whether the court will exclude evidence presented by one of the
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529 parties, thus keeping it from the jury. By contrast, the crucial point in
530 inquisitorial trials is not the ‘‘admissibility’’ of evidence (as there is no
531 ‘‘admission’’ as such and the court itself introduces the evidence), but
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532 whether the judgment can be based on a piece of evidence.

533 Art. 69(7) ICC Statute provides that unlawfully obtained evidence
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534 shall not be admissible if the violation casts substantial doubt on the
535 reliability of the evidence or the admission of the evidence would be
536 antithetical to and would seriously damage the integrity of the pro-
537 ceedings. Following the approach of the German judicature, Ambos
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538 interprets Art. 69(7) ICC Statute as an invitation to the judges to

539 engage in a comprehensive weighing; both the significance of the
540 piece of evidence for establishing the facts and the gravity of the
541 crime being tried should be considered when doing so. Unsurpris-
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542 ingly, this ‘‘difficult balancing exercise’’ (III, 517) does not produce
543 clear results.26 Nor is it by any means superior to the application of
544 the two criteria mentioned in Art. 69(7) ICC Statute.
545 The book’s last sections are devoted to further steps of practical
546 importance: Ambos provides a detailed, knowledgeable account of
547 the rules on disclosure of evidence to the defence (III, 520 et seq.) and

26
‘‘Yet ultimately the decision must be taken on a case-by-case basis… Of course,
Chambers have a fair amount of discretion in line with the general discretion in
evidentiary matters’’ (III, 520).
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548 the system of legal remedies (III, 548 et seq.). Comparatively brief
549 outlines of the (politically often difficult) cooperation between the
550 ICC and the national justice systems (III, 591 et seq.) and on
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551 enforcement (III, 635 et seq.) round off the third volume.
552 In his final remarks, Ambos calls for abandoning the unproductive

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553 debate on whether the adversarial or the inquisitorial type of pro-
ceedings is preferable. Instead, a procedural model should be created

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554
555 ‘‘just as a proposed general framework, leaving enough room for its
556 operators, especially the judges, to adjust the procedural rules to their
557 daily procedural realities’’ (III, 660). Fairness and efficiency should be
558 the guiding principles (III, 661). This we can certainly concur with –

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559 but it is the right combination of the two that is crucial.

560 3 CONCLUSION ED
561 A review essay naturally emphasises the points striking the reviewer as
562 potentially doubtful or in need of further clarification. Inevitably,
563 Ambos’s extensive Treatise contains passages that could be improved
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564 further here and there; in particular, in some places fewer words might
565 lead to greater clarity. But none of these questions and objections
566 concerning individual details change the fact that Ambos has suc-
567 ceeded in producing a work that is supremely impressive – and not
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568 only in terms of sheer quantity. Based on his own numerous prelimi-
569 nary studies, he skilfully and knowledgeably draws an arc from the
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570 foundations of international criminal law and criminal theory to the

571 details of the enforcement regime. His Treatise not only provides a
572 stupendously comprehensive evaluation of the relevant publications on
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573 international criminal law to date, but is also a veritable treasure trove
574 of original ideas on relevant issues in substantive and procedural law.
575 As the two first volumes on substantive law were already pub-
576 lished in 2014, they do not cover the most recent developments,
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577 especially the ICC’s political crisis following criticism from the
578 African states.27 Accordingly, I hope that the author will retain the
579 vigor and energy to keep this opus magnum up to date in further
580 editions.

27
On this issue, see, e.g. Werle, Fernandez and Vormbaum (eds.), Africa and the
International Criminal Court, 2014. The inclusion of the crime of aggression in the
ICC Statute (Art. 8bis ICC Statute), which took place in 2017, is essentially covered
in Ambos’s work by an extensive discussion of the resolutions of the Kampala
Conference (2010) (II, 184 et seq.).
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 Journal : 10609
Article : 9348 123
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