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INTERNATIONAL CRIMINAL LAW*
Yoram Dinstein**
I
The individual human being is manifestly the object of every legal system
on this planet, and consequently also of international law. The ordinary
subject of international law is the international corporate entity: first and
foremost (though not exclusively) the State. Yet, the corporate entity is not
a tangible res that exists in reality, but an abstract notion, moulded through
legal manipulation by and within the ambit of a superior legal system. When
the veil is pierced, one can see that -behind the 'legal personality of the State
(or any other international corporate entity) there are natural persons:
flesh-and-blood human beings. In the final analysis, Westlake was indubitably
right when he stated:
The duties and rights of States are only the duties and rights of the
men who compose them.'
That is to say, in actuality, the international rights and duties of States
devolve on human beings, albeit indirectly and collectively. 2 In other words,
the individual human being is not merely the object of international law, but
indirectly also its subject, notwithstanding the fact that, ostensibly, the
subject is the international corporate entity.
It is important, however, to stress that the individual human being is not
always only the indirect subject of international law. Sometimes, he bears
international rights and duties directly, without the interposition of the -legal
personality of a corporate entity. Those who are interested in international
* This is a revised and updated version of an article which appeared in (1975)

5 Is. Yrbk. on Human Rights 55-87.
** M. Jur., LL.M., Dr. Jur.; Yanowicz Professor of Human Rights and Pro-Rector, Tel
Aviv University (Israel); Visiting Professor, New York University School of Law.
I John Westlake, Collected Papers (Cambridge U.P., edited by Oppenheim, 1914)
vol. 1, p. 78.
2 See Kelsen, Principles of International Law (New York, Rinehart & Co., 1st ed.,
1952) 114.
Nos. 2-3, 19851 INTERNATIONAL CRIMINAL LAW
human rights must also pay heed to the other side of the coin, namely, to
international human duties.
In practical terms, the distinction between an international obligation
incurred by the individual directly (as a subject of international law) and
one imposed on him indirectly (through the State) comes into focus when
the obligation is infringed and international responsibility is created. Or-
dinarily, State responsibility is expressed in the genesis of a new obligation
of reparation, there being no other-genuine-sanction under existing gen-
eral international law.3 Conversely, individual responsibility means subjection
to criminal sanctions. When an individual human being contravenes an inter-
national duty binding him directly, he commits an international offence and
risks his 'life, liberty or property. Hence, international human duties are
inextricably linked to the development of international criminal law.
II
In its origins, international criminal law goes back to customary interna-
tional rules, which have long since prohibited piracy and war crimes. At the
end of the nineteenth and the beginning of the twentieth century, other inter-
national offences (delicta juris gentium)--defined in international treaties-
were gradually added to the list, and the pace of international legislation
in this field has quickened as of the Second World War. It is possible nowa-
days to draw up a fairly long roster of international offences:
1. Piracy. The pirate is regarded by international 'law as the "enemy of

mankind (hostis humani generis)", whom every State is entitled to prosecute
and punish. 4 Piracy jure gentium is defined in Arts. 15 to 17 of the 1958
Geneva Convention on the High Seas "r and in Arts. 101 to 103 of the 1982
United Nations Convention on the Law of the Sea. 6 The constituent elements
of the offence are as follows: 7
a) The nature of the offence: piracy consists of an illegal act of violence,
detention or depredation.
3 See Dinstein, International Claims (Tel Aviv, Schocken, 1977, in Hebrew) 14.
4 See the Dissenting Opinion of Judge Moore in the S.S. Lotus Case (A/10) (1972)
70; Manley 0. Hudson, World Court Reports (Carnegie Endowment for Int'l
Peace, Washington, D.C., 1935) vol. 2, pp. 20, 69.
5 (1958) 52 Am. I. Int'l L. 842, 846.
6 (1982) 21 Int'l Legal Materials 1261, 1288-9.
7 See Dinstein, "Criminal Jurisdiction over Aircraft Hijacking", (1972) 7 Is.L.R. 195,
197-200.
ISRAEL LAW REVIEW [Is.L.R. Vol. 20
b) The locus of the offence: piracy can only take place on the high seas
or somewhere else outside the jurisdiction of all States (e.g., in outer space).
Even raids from the high seas into an area under the jurisdiction of a State
exceed the bounds of this definition.
c) The identity of the offenders: only private persons may be considered
pirates. Piracy cannot be perpetrated, for instance, by a warship (unless
the crew has mutinied and taken control of the vessel).
d) The purpose of the offence: piracy must be committed for private
ends. Any private intent will -do (not necessarily animus furandi), but pri-
vate it must be; political ends are excluded.
e) The target of the offence: piracy may be directed against ships, air-
craft or persons and property on board.
f) The modus operandi of the offenders: piracy must be committed from
a ship or aircraft other -than the one serving as the target of the offence.
When an illegal act of violence, detention or depredation is committed on
board a single ship or aircraft-without involving another vessel or plane-
it is not to be subsumed under the heading of piracy.
The Conventions explicitly recognize the universal jurisdiction of every
State in the world in respect of the offence of piracy.8
2. War Crimes. War crimes constitute particularly grave offences against

the 'laws of war.9 The most authoritative definition of war crimes appears
in the Charter of the International Military Tribunal, annexed to the 1945
London Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis. 0 The London Charter had originally been
adopted by the four Big Powers-the United States, the Soviet Union, the
United Kingdom and France-and subsequently many other allied nations
acceded to it. Admittedly, it does not per se bind the whole international
community, but it has a major significance in the context of the "Nuremberg
Principles" which were developed both in it and in the Judgment of the
International Military Tribunal. The Nuremberg Principles were formulated
in 1950 by the International Law Commission," and, even though the
8 Geneva Convention on the High Seas, supra n. 5 at 846 (Art. 19); United
Nations Convention on the Law of the Sea, supra n. 6 at 1289 (Art. 105).
9 On the popular fallacy that every violation of the laws of war is necessarily a war
crime, see Dinstein, The Laws of War (Tel Aviv, Schocken, 1983, in Hebrew)
278-9.
10 (1945) 39 Am. J. Int'l L., Supp. 257, 258.
11 Report of the International Law Commission to the General Assembly, 2nd Session,
1950 (A/1316), [19501 2 Yrbk. Int'l L. Comm'n 364, 374-8.
Nos. 2-3, 1985] INTERNATIONAL CRIMINAL LAW
Commission's text has never been codified in treaty form, few jurists would
challenge the thrust of the Principles at the present time.
Art. 6(b) of the London Charter defines war crimes as including, inter
alia, murder, ill-treatment, or the deportation to slave labour or for any other
purpose of civilian population in occupied territories;, murder or ill-treat-
ment of prisoners-of-war; killing 'of hostages; plunder of public or private
property;. and wanton destruction of cities and villages not justified by
military necessity. 12 The International Military Tribunal at Nuremberg ruled,
in -its Judgment of 1946, -that the offences mentioned in Art. 6(b) of the
13
Charter had been recognized as war crimes by customary international law.
It is clear, however, that the enumeration of offences in this paragraph is far
from exhaustive. Naturally, the definition of war crimes is tied to the -prog-
ress made by the laws of war. The laws of war on land 'have gained partial
consolidation in the Regulations annexed to the Fourth Hague Convention of
1907) 4 The Nuremberg Judgment refers to certain prohibitions specified in
these Regulations-such as those relating to the employment of poisoned
weapons and the improper use of flags of truce-and declares that they had
been enforced long -before 1907, but since then have certainly been viewed
as punishable war crimes.' 5
It is beyond question that each belligerent is entitled to put on trial. war
criminals from among enemy soldiers who fall into its hands. Moreover,
the prevailing opinion is that jurisdiction in this case, as in piracy, is univer-
sal, i.e., granted to all States (even neutrals).16
3. Crimes against Peace. The London Charter provides, in Art. 6(a).

that war of aggression or war waged in violation of international treaties
constitutes a crime against peace. 17 The Nuremberg Judgment proclaims in
unequivocal terms that this stipulation is declaratory in character, and that
modern international law treats a war of aggression as a serious crime.'8
Although the Nuremberg ruling encountered some doubts in 1946, today it
is indisputable that war has not merely been proscribed by international law
12 Charter of the International Military Tribunal, supra n. 10 at 260.

13 International Military Tribunal, Judgment (Nuremberg, 1946), (1947) 41 Am. J.
Int'l L. 172, 248.
14 Hague Convention (No. IV) Respecting the Laws and Customs of War on Land,
1907, Documents on the Laws of War (ed. 'by Roberts and Guelff, Oxford,
Oxford U.P., 1982) 43, 48 (hereinafter: Laws of War).
15 International Military Tribunal, supra n. 13 at 218.
16 See Cowles, "Universality of Jurisdiction over War Crimes," (1945) 33 Calif. L.R.
177, 216-7.
18 International Military Tribunal, supra n. 13 at 217-221.
(subject to the exceptions of self-defence and collective security), but consti-

tutes a crime; in fact not just a crime, but the crime against the international
community. For jurisdictional purposes, war as a crime (against peace) is to
be assimilated to war crimes.
Granted that at Nuremberg only the major war criminals were prosecuted,
the provision of Art. 6(a) of the London Charter is phrased in sweeping
language, which appears to condemn as a criminal every soldier who fights
in an aggressive war.' 9 Yet, in 1948, in the German High Command Trial,
an American Military Tribunal determined (in the course of the "subsequent
proceedings" at Nuremberg) that officers below policy level must be
acquitted of the charge of crimes against peace.20 In the I.G. Farben Trial,
another American Military Tribunal, in the same year, held that a departure
from the concept that only major war criminals-those persons in the poli-
tical, military or industrial spheres who were responsible for the formulation
and execution of policies-are to be convicted for crimes against peace
would lead to incongruous conclusions: it would be necessary to indict the
whole population, including the private soldier on the battlefield, the farmer
who supplied the armed forces with foodstuffs and even the housewife who
conserved essential commodities (say, cans of beans) for the military
industry.2'
4. Crimes against Humanity. Art. 6(c) of the London Charter defines

crimes against humanity as murder, extermination, enslavement, deportation
and other inhumane acts committed against any civilian population before
or during war, or persecutions on political, racial or religious grounds in
connection with any crime within the jurisdiction of the International Military
Tribunal.22 In the original English version of the paragraph a semicolon
separated its two parts, and it appeared as if only persecutions-and not
murder, etc.-had to be connected with crimes within the jurisdiction of the
Tribunal. But in a special Protocol, done in Berlin in 1945, the paragraph
was amended so that the semicolon was replaced by a comma.= The import
of the amendment is that crimes against humanity-of all types-must be
19 See Maugham, U.N.O. and War Crimes (London, J. Murray, 1951) 18-39, 52-8.
20 German High Command Trial (United States Military Tribunal, Nuremberg,
1948), 15 I.L.R. 376, 379-383.

21 I.G. Farben Trial (United States Military Tribunal, Nuremberg, 1948), 15 I.L.R.
668, 669.
23 International Military Tribunal Nazi Conspiracy and Aggression (Office of U.S.
Chief of Counsel for Prosecution of Axis Criminality, Washington, U.S. Gov't.
Print. Off., 1946) vol. 1, pp. 11-2.
connected with crimes within the jurisdiction of the Tribunal, namely, crimes
against peace and war crimes. In fact, there is a certain inconsistency in the
definition of crimes against humanity: on the one hand, Art. 6(c) prescribes
that these crimes may be committed not only during but also before war-
namely, in peacetime--and on the other, they must be committed in con-
nection with crimes against peace or war crimes, hence with war.2 The
Nuremberg Judgment reaches the explicit conclusion that the Nazi persecu-
tions against the Jews in Germany, prior to the outbreak of the Second World
War in September 1939, were not connected with crimes against peace or
war crimes, and therefore were not to be considered crimes against human-
ity.2D
3
It is true that in some special instances the Tribunal acknowledged a
link between specific acts performed before September 1939 and crimes
against peace or war crimes, 6 but as a rule it confined the applicability of
crimes against humanity to the duration of the war.27 As a result, though
in theory it does not matter whether or not crimes against humanity-under
Art. 6(c)-are committed before or during war, in general practice these
crimes must necessarily be committed in wartime. 28
The definition of crimes against humanity in -para. (c) of Art. 6 overlaps
in many respects the definition of war crimes in para. (b): for example,
murder and deportation of civilian population are specified in both places.
It is noteworthy, however, that para. (b) applies only to the civilian popu-
lation in occupied territories, whereas para. (c) relates to any civilian popu-
lation, not excluding that of the State whose armed forces commit the
crimes (e.g. Jews in Germany). 29 The outcome is that murder or deportation
of the civilian population in occupied territories is 'both a war crime and a
crime against humanity, while murder or deportation of any other civilian
population in time of-and in connection with-war is only a crime against
humanity. By contrast, crimes against humanity are circumscribed in their
application to civilian population,30 unlike war crimes which can be-and
usually are-directed against the armed forces too (-by way of illustration,
murder or maltreatment of prisoners-of-war or use of poisoned weapons in
battle).
Insofar as crimes against humanity are concerned, universal jurisdiction
24 See Schwelb, "Crimes against Humanity", (1946) 23 Brit. Yrbk. Int'l L. 178, 179,
188, 193-5, 204.
26 See Goldstein, "Crimes against Humanity: Some Jewish Aspects," [19481 Jew. Yrbk.
Int'l L. 206, 221.
28 See Schwelb, supra n. 24 at 204.
29 See ibid., at 179, 188-9.
30 See ibid., at 190.
over offenders is afforded to all States. This was recognized in the Judgment
of the Supreme Court of Israel in the Eichmann Trial.-'
5. Genocide. The term "genocide" was coined by Lemkin against the

background of the Holocaust, and is based on a combination of the Greek
word genos (meaning race or tribe) with the Latin radical-cidium (meaning
killing, as, for instance, in patricide).3 In 1948, the General Assembly of
the United Nations adopted a Convention on the Prevention and Punish-
ment of the Crime of Genocide.33 The Convention defines genocide in Art. II
as any of the following acts committed with intent to destroy-in whole or
in part-a national, ethnical, racial or religious group, as such: (a) killing
members of the group; (b) causing serious bodily or mental harm to mem-
bers of the group; (c) inflicting on the group conditions of life calculated
to bring about its physical destruction; (d) imposing measures intended to
prevent births within the group; or (e) forcibly transferring children of the
34
group to another group.
As correctly underscored by Robinson, the essence of genocide is not the
actual destruction of a group, but the intent to destroy it as such (in whole
or in part). 35 This has a dual consequence: first, if a group was destroyed
through acts committed without an intent to bring about such destruction,
there is no genocide; secondly and conversely, the murder of a single
individual may be categorized as genocide if it constitutes a part of a series
of acts intended to produce the destruction of the group to which the
victim belonged.3 6
The definition of genocide is qualified in two important respects. First, the
crime encompasses acts against national, ethnical, racial or religious groups,
and no others. Groups of different affiliation-primarily, political groups
(which at a certain stage in the drafting of the Convention were considered
relevant)-do not come within the scope of the definition.3 7 Secondly,
genocide is -limited to physical or biological destruction: cultural genocide-
involving the closing down of schools, the prohibition of using a language, the
.1 Eichnann v. Attorney General, (1962) 16 (iii) P.D. 2033, 2048.

32 See Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for Int'l Peace,
Washington, D.C., 1944) 79.
33 Laws of War 157, 158.
34 Ibid., at 158-9.
3, N. Robinson, The Genocide Convention (Institute of Jewish Affairs, World Jewish
Congress, New York, 1960) 58.
36 See ibid., at 58, 62.
37 See Anonymous, "Genocide: A Commentary on the Convention," (1948-1949) 58
Yale L.J. 1142, 1144-5.
Nos. 2-3, 1985) INTERNATIONAL CRIMINAL LAW
burning of books, the destruction of historical monuments, and other acts

aimed at uprooting the culture of a national, ethnical, racial or religious
group-is not covered by the final text of the Convention (as distinct from
earlier versions).38
Though genocide may be looked upon as a crime against humanity par
excellence, it should be observed that such is the case only when destruction
of civilian population is carried out in connection with war. The definition
of genocide transcends that of crimes against humanity in Art. 6(c) of the
London Charter both in its extent (for instance, as regards the forcible
transfer of children from one group to another) and in the time of its appli-
cation. Whereas crimes against humanity must be committed in connection
with war, Art. I of the Genocide Convention confirms that genocide may be
committed either in time of war or 'in time of peace.39 A link to war is-not
a conditio sine qua non of genocide.
In contradistinction to crimes against humanity, the Genocide Convention
refrains from according criminal jurisdiction over offenders to every State.
Art. VI of the Convention provides that persons charged with genocide are
to be tried by the courts of the State in whose territory the offence was
committed (or by an international penal tribunal having appropriate juris-
diction, if and when established). 40 Needless to say, Art. VI signifies a
victory of the territoriality principle over the universality principle.4 1 A
thorny problem arose in this context in the Eichmann Trial, inasmuch as the
defendant was prosecuted and punished for genocide by a State (Israel) that
could not rely on the territoriality principle. The Supreme Court of Israel
resolved the problem in the following way:
Article VI reflects a contractual obligation of the Parties to the Con-
vention, to be applied from that moment on. That is to say, it binds
them to 'prosecute cases of genocide that will take place within their
boundaries in the future. But this undertaking has nothing to do with
the universal power granted to every State to prosecute cases of this
type that took place in the past, a power which is based on customary
international law.4
The idea is that the crime of genocide exists under both customary and
conventional international law, and, whereas no universal jurisdiction per-

39 Convention on the Prevention and Punishment of the Crime of Genocide, supra
n. 33 at 158.
40 Ibid., at 159.
41 See Robinson, supra n. 35 at 31-2.
42 Eichmann v. Attorney General, supra n. 31 at 2066.
tains to it under conventional law (which is future-oriented), there is-and

continues to be-a universal jurisdiction under customary law (which
relates also to the past). The refusal of the Court to apply the Genocide
4
Convention to crimes committed in the past was criticized by Fawcett. 3
As a matter of fact, an even more penetrating question presents itself: if
genocide anyhow constitutes a crime under customary international law, and
if -the jurisdiction existing on the strength of custom 'is wider than that
accorded by the Convention, what was the purpose of the exercise of
adopting the Convention? The Judgment implies that the Convention was
designed to add a duty to the pre-existing power to prosecute offenders.
But such an analysis -is not too persuasive. Every international offence
(whether customary or conventional) presupposes a duty-and not only a
power-imposed on States to prosecute offenders (see infra, § IV). It is
better, in our opinion, to say that under conventional international law the
definition of the crime of genocide i4 broader ('in scope and time-frame of
applicability) whereas the jurisdiction is narrower (territorial). On the other
hand, under customary international law the definition of the crime is nar-
rower (in scope and time-frame of applicability) while the jurisdiction is
broader (universal). Eichmann was convicted for acts which come within
the ambit of genocide in accordance not only with the broader (conventional)
but also with the narrower (customary) definition: he perpetrated the des-
truction of civilian population in wartime. Hence, the broader (universal)
jurisdiction derived from customary law could prevail in his case. Yet, had
Eichmann committed his acts in peacetime (without any link to, war), or
had he refrained from committing acts punishable on the basis of customary
law, it would have been necessary to apply to him -the territorial principle
in conformity with the provisions of conventional law.
6. Grave Breaches of the Geneva Conventions for the Protection of War

Victims. The Four Geneva Conventions, of 1949, for the Protection of War
Victims contain common Articles dealing with grave breaches of 'the Con-
ventions that involve acts committed against protected persons or property.
Grave breaches are defined as follows in Art. 50 of the (First) Geneva
Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in -the Field, 44 and in Art. 51 of the (Second)
Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea:45 wilful killing;
43 Fawcett, "The Eichman Case," (1962) 38 Brit. Yrbk. Int'l L. 181, 205.
44 Laws of War 169, 189.
45 Ibid., at 193, 210-1.
torture or inhuman treatment, 'including biological experiments; wilfully

causing great suffering or serious injury to body or health; extensive des-
truction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly. Art. 130 of the (Third) Geneva Con-
vention Relative to the Treatment of Prisoners of War46 repeats most of ,the
constituent elements of the definition, but replaces the last part (on destruc-
tion and appropriation of property) by other grave breaches, namely, com-
pelling a prisoner-of-war to serve in the forces of a hostile Power; wilfully
depriving a prisoner-of-war of the rights of fair and regular trial. Finally,
Art. 147 of the (Fourth) Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 47 reiterates the entire definition of the
first two Conventions, but adds to it the following grave breaches: unlawful
deportation or transfer or unlawful confinement of a protected person;
compelling a protected person to serve in the forces of a hostile Power;
wilfully depriving a protected person of the rights of fair and regular
trial; taking hostages.
All these grave breaches in effect constitute war crimes or crimes against
humanity.4a The Four Geneva Conventions obligate all Contracting Parties
to search for persons who commit grave breaches and bring -them to trial
regardless of their nationality (or alternatively to extradite them). 49 The
Conventions impose a duty on-and therefore also authorize-neutral States
to prosecute the offenders.m What this boils down to is establishing universal
jurisdiction.j 1
7. Grave Breaches of the First Additional Protocol to the Geneva Con-

ventions. The 1977 Protocol Additional to 'the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International
4 Ibid., at 215, 268.

4T Ibid., at 271, 323.
48 On the reasons for using the expression "grave breaches" in the Conventions in
lieu of the ordinary term "war crimes", see Gutteridge, "The Geneva Conven-
tions of 1949," (1949) 26 Brit. Yrbk. Int'l L. 294, 304-5.
49 Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, supra n. 44 at 188-9 (Art. 49); Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Ship-
wrecked Members of Armed Forces at Sea, supra n. 45 at 210 (Art. 50); Geneva
Convention Relative to the Treatment of Prisoners of War, supra n. 46 at 267-8
(Art. 129); Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, supra n. 47 at 323 (Art. 146).
50 See Yingling and Ginnane, "The Geneva Conventions of 1949," (1952) 46 Am.
I. Int'l L. 393, 426.
51 See Carnegie "Jurisdiction over Violations of the Laws and Customs of War,"
(1963) 39 Brit. Yrbk. Int'l L. 402, 408.
ISRAEL LAW REVIEW [Is.L.R. Vol., 20
Armed Conflicts (Protocol I),m considerably enlarges the list of grave

breaches. Art. 11(4) declares that any wilful act or omission which se-
riously endangers the physical or mental health or integrity of any -person
who is in the power of the enemy, in violation of preceding sections of the
Article (dealing, inter alia, with medical procedures inconsistent with gen-
erally accepted standards, physical mutilations, medical or scientific expe-
riments, and removal of tissue organs for transplantation), constitutes a grave
breach of the Protocol.m Art. 85 adds eleven other grave breaches ranging
from indiscriminate attacks affecting the civilian population and perfidious
use of the red cross to the practice of apartheid (see below, 9).4 It is cate-
gorically laid down in para. 5 of Art. 85 that grave breaches of the Con-
ventions as well as the Protocol are to be regarded as war crimes.
8. Breach of the Hague Convention for the Protection of Cultural Pro-

perty. In Art. 28 of the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict, all Contracting Parties undertake
to take the necessary measures to prosecute and punish persons--of what-
ever nationality-who commit a breach of its provisions.5 5 The reference is
to any breach-as compared to grave breaches-of the Convention, so no
special definition is called for. Not every such breach is intrinsically a war
crime or a crime against humanity, but it constitutes an offence under the
Convention. Once more, universal jurisdiction is set up (and conferred
upon neutral States among others). 8
9. Apartheid. In 1973 the General Assembly of the United Nations

formulated an International Convention on the Suppression and Punishment
of the Crime of Apartheid. 57 The Convention stigmatizes apartheid as a
crime against humanity, and the expression is defined as covering any 'policy
of racial segregation and discrimination as practised in southern Africa. 58 Art.
V of the Convention stipulates that offenders may be tried by "a competent
trbunal of any State Party to the Convention which may acquire jurisdiction
over the person of the accused" (or, alternatively, by an international penal
tribunal having jurisdiction, if and when established). 5 9 It is not quite clear
52 Laws of War 387.

53 ibid., at 396.
.54 Ibid., at 437-9.
55 Ibid., at 339, 349.
5 See Carnegie, supra n. 51 at 409.
57 [1973] U.N. Juridical Yrbk. 70.
58 Ibid., at 71.
59 Ibid., at 72.
which State acquires jurisdiction under the Convention and in what cir-
cumstances. In any event, this is a controversial document of nominal prac-
tical significance whose main purpose is to serve as a political weapon against
South Africa. In Art. 3 of the 1965 International Convention on the Eli-
mination of All Forms of Racial Discrimination, States Parties also under-
take to prevent, prohibit and eradicate all practices of apartheid in territo-
ries under their jurisdiction. 60 But the 1965 Convention (which is of far
greater import than the 1973 instrument) does not refer to apartheid as a
crime against humanity.
10. Racial Discrimination. The 1965 International Convention on the

Elimination of All Forms of Racial Discrimination goes beyond the practice
of apartheid as such. In Art. 4 of the Convention, States Parties undertake
to declare as an offence punishable by law all dissemination of ideas based
on racial superiority or hatred, incitement to racial discrimination as well as
acts of violence (or incitement to violence) against persons of another race,
colour or ethnic group.6 1
11. Enslavement and Slave Trade. Under Art. 6 of the 1956 Supple-
mentary Convention on the Abolition of Slavery, the Slave Trade, and Insti-
tutions and Practices Similar to Slavery, the act of enslaving another person
shall be a criminal offence under the laws of Contracting Parties, and offend-
ers must be prosecuted and punished.6 2 A similar provision appears in Art.
3 of the Convention in respect of conveying slaves from one country to
another by whatever means of transport (including ships and aircraft), with
a view -to preventing and punishing slave trade.6 The Law of the Sea
Conventions include a specific clause very much like it as regards the
transport of slaves in ships. 64
12. Torture. Art. 4 of the 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment obligates each State
Party to ensure that all acts of torture are offences under its criminal law
and to make these offences punishable by appropriate penalties which 'take
into account their grave nature.6
60 [1965] U.N. Juridical Yrbk. 63, 65.

61 Ibid.
62 266 U.N.T.S. 40, 43.
63 Ibid., at 42.
64 Geneva Convention on the High Seas, supra n. 5 at 845 (Art. 13); United Nations
Convention on the Law of the Sea, supra n. 6 at 1288 (Art. 99).
65 U.N. Doe. A/RES/39146, p. 4 (1984).
13. Traffic in Persons for Prostitution. The 1950 Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Pros-
titution of Others-which supersedes several previous instruments relating
to traffic in women and children (once dubbed "white slavery" as distinct
from the regular slavery of coloured people)-imposes on Contracting Parties
the obligation to punish a number of acts pertaining to the exploitation of
prostitution and the traffic in persons for such purposes.66
14. Narcotic Drugs. According to Art. 36 of the 1961 Single Convention

on Narcotic Drugs, Contracting Parties are in duty bound to enjoin as
punishable offences and to punish a whole series of activities in regard to
the production, manufacture, extraction, distribution, delivery, sale and pur-
6 7
chase of narcotic drugs.
15. Counterfeiting Currency. Art. 3 of the 1929 Geneva Convention for

the Suppression of Counterfeiting Currency prescribes that a list of acts con-
nected with counterfeiting currency should be punishable as ordinary
crimes."6
16. Injury to Submarine Cables. Under the Law of the Sea Conventions,
every Contracting Party must -take the necessary measures so that wilful
injury to submarine cables or pipelines shall be a punishable offence.6 9
17. Obscene Publications. In Art. 1 of the 1923 International Convention

for the Suppression of the Circulation of and Traffic in Obscene Public-
ations, Contracting Parties undertake that it shall be a punishable offence
to produce, possess or exhibit-for purposes of trade or distribution-
70
obscene writings, pictures, films, etc.
18. Aircraft Hijacking. The 1970 Hague Convention for the Suppression
of Unlawful Seizure of Aircraft provides in its first Article that any person
who unlawfully-by force or threat thereof, or by any other form of intimi-
dation-seizes or exercises control of a civil aircraft in flight, commits an
66 96 U.N.T.S. 272, 274.

67 520 U.N.T.S. 204, 252-4.
68 M.O. Hudson, International Legislation (Carnegie Endowment for Int'l Peace,
Washington, D.C., 1931) vol. 4, pp. 2692, 2696.
69 Geneva Convention on the High Seas, supra n. 5 at 849 (Art. 27); United Nations
Convention on the Law of the Sea, supra n. 6 at 1290 (Art. 113).
70 (1926) 20 Am. J. Int'l L., Supp. 178, 183.
offence."' The Convention practically sets up universal jurisdiction over the

offence,72 but this 'is not done in a clear-cut way.73
19. Aircraft Sabotage. Art. 1 of the 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation creates
a parallel offence in respect of any person who unlawfully and intentionally
(a) performs an act of violence against a person on board a civil aircraft in
flight, if that act is likely to endanger the safety of the aircraft; (b) destroys
a civil aircraft in service or causes damage which renders it incapable of flight
or is likely to endanger its safety in flight; (c) places on a civil aircraft in
service, by whatever means, a device which is likely to destroy or cause
damage to it as 'in the previous paragraph; (d) destroys or damages or in-
terferes with the operation of air navigation facilities in a way likely to
endanger the safety of a civil aircraft in flight; (e) communicates false
information, thereby endangering the safety of a civil aircraft in flight.7 4
The Montreal Convention disposes of the jurisdictional issue in a vein
similar to the counterpart Hague Convention. 75
20. Crimes against Diplomatic Agents and Other Internationally Protected

Persons. In 1973---on the basis of a draft prepared by the International Law
Commission-the General Assembly formulated a Convention on the Pre-
vention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents.7 6 The persons protected in the Convention are
Heads of States, Heads of Governments or Ministers for Foreign Affairs
whenever they are in a foreign State (as well as accompanying members of
their families), and any official representatives of States or international
organizations.7 7 In accordance with Art. 2 of the Convention, murder,
kidnapping or other attack upon the person or liberty of such dignitaries
shall be made a punishable crime under the internal laws of Contracting
Parties.7 8 Already in 1971, a regional Agreement on the same subject was
made within the framework of the Organization of American States.79
71 [1970] U.N. Juridical Yrbk. 131, id.

72 Ibid., at 132 (Art. 4).
73 See Dinstein, supra n. 7 at 200.
74 [1971] U.N. Juridical Yrbk. 143, 143-4.
75 Ibid., at 145 (Art. 5).
77 Ibid., at 76 (Art. 1).
78 Ibid.
79 American Convention to Prevent and Punish the Acts of Terrorism Taking the
Form of Crimes against Persons and Related Extortion that are of International
Significance, 1971, (1971) 65 Am. J. Int'l L. 898.
21. Taking Hostages. In 1979 the General Assembly adopted an Inter-

national Convention against the Taking of Hostages.8° The Convention
defines as an offence the seizure or detention and the threat to kill, to
injure or to continue to detain a person (the hostage) in order to compel a
third party (a State, an inter-governmental organization, a natural or juri-
dical person, or a group of persons) to do or abstain from doing an act as
an explicit or implicit condition for the release of the hostage.8 ' The Con-
vention, however, does not apply to armed conflicts, either international or
internal. 82 Nor does the Convention apply when the offence is committed
within a single State, both the hostage and the offender are nationals of
that State, and the offender is found within its territory.8 3
22. Unauthorized Possession or Use of Nuclear Material. In 1979 the

International Atomic Energy Agency formulated a Convention on the
Physical Protection of Nuclear Material. 84 The Convention defines nuclear
85
material as any material containing certain types of plutonium or uranium.
Each State Party is required to make a punishable offence under its national
law the receipt, possession, use, transfer, alteration, disposal or dispersal of
nuclear material without lawful authority in a manner likely to cause death
or serious injury; as well as the theft of such material, a demand for it by
threat or use of force, or a threat to use it for purposes of extortion.1s
23. Terrorism. The last mentioned Conventions were signed as a part of

a general trend to outlaw acts of -terrorism. Following upon the assassination
of the Yugoslav King, Alexander, and of the French Foreign Minister,
Barthou, in Marseilles in 1934, a Convention for the Prevention and
Punishment of Terrorism was drafted in Geneva, in 1937, under the auspices
of the League of Nations."" But the instrument was not ratified by the re-
quired number of States and has never entered into force. It defines the
expression "act of terrorism" to mean a criminal act directed against a State
and intended to create a state of terror in the minds of particular persons, a

81 Ibid. (Art. 1).
82 Ibid., at 127 (Art. 12).
83 Ibid. (Art. 13).
84 (1979) 18 Int'l Legal Materials 1422.
85 Ibid. (Art. 1).
86 Ibid., at 1425-6 (Art. 7).
87 Hudson, International Legislation (Carnegie Endowment for Int'l Peace, Washing-
ton, D.C., 1941) vol. 7, p. 862.
group of persons or the general public.88 The Convention stipulates that

Contracting Parties shall make acts of terrorism enumerated in it punishable
criminal offences, if committed on their own territories and aimed at another
State, including an attack against the person or liberty not only of Heads
of States and public functionaries (a subject covered by the more recent
s
Convention of 1973), but also of members of the public at large.m Lately,
renewed efforts have been made to bring about the adoption of an inter-
national treaty against terrorism, but so far they have not been crowned
with success.9 0 In 1976 the European Convention for the Suppression of
Terrorism was adopted, but this instrument is confined to a list of offences
which will not be considered political for purposes of extradition between
Contracting Parties. 91
IlI
These are the principal international offences which are recognized-or

attempts are made to have them recognized-in the practice of States, more
particularly in international treaties. What turns an act into an international
offence? The answer is, its definition as a punishable offence in international
(usually conventional) law. From time to time new offences are added to the
rolls, in conjunction with the changing needs of the international community,
and it is impossible to determine a priori which acts are criminal under in-
ternational law. One may patently identify certain features which charac-
terize international offences--chiefly, the gravity of the acts under consi-
deration and the fact that they harm fundamental interests of 'the whole
international community9-but the presence of these general traits by itself
does not denote that a specific act (such as an act of terrorism) is an inter-
national offence de lege lata. The practice of States is the conclusive deter-
minant in the creation of international law (including international criminal
law), and not the desirability of stamping out obnoxious patterns of human
behaviour.
The very use of the general term "international offences" is controversial
and problematic. When international treaties define offences, they do not
employ an unequivocal-or even a consistent-terminology. There are no
less than five salient formulas, which the treaties tend to use 'in diminishing
grades of clarity:
88 Ibid., at 865 (Art. 1(2)).
89 Ibid., at 865-6 (Art. 2).
90 See Rovine, "The Contemporary International Legal Attack on Terrorism", (1973)
3 Is. Yrbk. on Human Rights 9, 27-32.
91 (1976) 15 Int'l Legal Materials 1272, id. (Art. 1).
92 See Eichmann v. Attorney General, supra n. 31 at 2052.
a) A categorical provision to the effect that the forbidden act constitutes

an international crime involving the application of international criminal
responsibility to individuals. Such limpid prose is used only in the London
Charter,9 3 and in the (otherwise dubious) Apartheid Convention.9
b) A less detailed provision confining itself to a statement that the
forbidden act constitutes an international crime. The locus classicus is the
Genocide Convention, which declares that genocide "is a crime under inter-
national law". 95
c) A vague provision according to which the forbidden act is a crime
or an offence, without spelling out explicitly that it is necessarily an inter-
national crime or offence. This is the case, for example, in the Hague and
Montreal Conventions.96
d) A provision which refrains from describing the forbidden act as a
crime or an offence, and merely imposes a duty on Contracting Parties to
prosecute and punish those who commit it. This is the method used in the
97
Geneva Conventions for the Protection of War Victims.
e) A provision which just prescribes that the forbidden act shall be
a crime or an offence under the internal law of the Contracting Parties.
Such a provision appears in the Convention on -the Physical Protection of
Nuclear Material. 98
IV
Of course, at bottom all five formulas have an important common deno-
minator: in all instances, it is international law that defines the acts under
consideration as offences. But what is the legal significance of such a defi-
nition? It must be conceded that, at this phase in the evolution of inter-
national criminal law, the significance is primarily reflected in rather minor
aspects:
A. International offences-and only international offences-may some-
times be subject to the universal jurisdiction of all States (or all Contracting
93 Charter of the International Military Tribunal, supra n. 10 at 257-260.

94 International Convention on the Suppression and Punishment of the Crime of
Apartheid, supra n. 57 at 71-2.
95 Convention on the Prevention and Punishment of the Crime of Genocide, supra n.
33 at 158 (Art. I).
96 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, supra n. 71
at 131 (Art. 1); Montreal Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, supra n. 74 at 143-4 (Art. 1).
9T Supra n. 49.
98 Convention on the Physical Protection of Nuclear Material, supra n. 84 at 1426
(Art. 7).
States). That is to say, any State which lays its hands on the offender may
put him on trial and punish him, irrespective of the locus of the offence and
the nationality of the offender (or the victim). This, to be sure, is an
exceptional jurisdiction, but one must realize that, although applicable exclu-
sively to international offences, it does not automatically cover them all, and
it is contingent on the treaties -defining the offences. Thus, we have seen
that whereas universal jurisdiction is recognized in regard to piracy-and,
in less pellucid form, in respect of aircraft hijacking and sabotage-it is
excluded from the Genocide Convention.
B. Contracting States are obligated to suppress international offences

and to take effective measures with that goal in mind. Consequently, they
are required to exercise due diligence in attempting to forestall the forbidden
act, seize the offenders, try them-if criminal jurisdiction is available (and
to the extent available)-and punish them. 9 This is an important obligation,
but it must be qualified in two substantial ways:
(1) It is not enough that a State has undertaken, in an international
treaty, to prosecute offenders: the questions is whether the offence has in fact
been incorporated in its domestic law. That is why the international treaties
usually include a specific stipulation imposing on Contracting States a duty
to enact the necessary internal legislation with a view to punishing offenders
effectively.' 10 The trouble is that if a State does not implement this stipula-
tion-and fails to adopt the required legislative measures-it will, at most,
assume international responsibility (usually expressed in the payment of com-
pensation) for the breach of treaty, but the offenders will escape punishment.
(2) It is not enough that a State has enacted the necessary internal
statutes: the question is whether it is sincerely interested in prosecuting the
offenders. A special problem arises when the offenders are organs of the
very same State. This problem is particularly acute insofar as genocide is
concerned. As we have noted, the crux of the issue in genocide is the
intent to destroy a national, ethnical, racial or religious group as such, and
not necessarily the execution of that intent. Hence genocide may be com-
mitted by private persons, too. But when genocide is effectively carried out,
involving the actual destruction of such a group in whole or in part-like the
"Final Solution" of the Jewish Question in Europe-it is difficult to be
envisaged as a private operation. It is more reasonable to assume that sys-
tematic and large-scale genocide will be committed by organs of the State.
99 The undertaking "to prevent and to punish" is pronounced, e.g., in Art. I of the
Convention on the Prevention and Punishment of the Crime of Genocide, supra
n. 33 at 158.
100 See, e.g., Art. V, ibid., at 159.
Under the Convention, however, jurisdiction over genocide is (as stated) only
territorial, in the absence of an international penal tribunal. It is scarcely
credible that the State in whose territory the crime is committed will punish
its own organs, and indirectly itself. The prospect of trial of State organs for
genocide in essence hinges on the occurrence of circumstances falling into
two categories: (a) when the crime is committed by State A in the occupied
territory of State B, if State B returns to the area (in which case State B
tries organs of State A); (b) when, as a result of a revolution or a coup
d'Etat, the Government that committed genocide in its own country is over-
thrown and another administration seizes the helm of the State (in which
case the new Government tries organs of the ancien r~gime).101 Even when
private persons commit genocide-or, for that matter, another international
offence (like aircraft hijacking)-the offenders may find a haven in a
friendly country which will refrain from putting them on trial or, in any
event, subjecting them to adequate punishment. Again, the State offering
asylum to international offenders may perhaps bear international respon-
sibility for a violation of a treaty obligation, but the offenders will go scot
free.
C. When Contracting Parties are under an obligation to extradite inter-
national offenders, international law does not permit the offenders to rely
on the political nature of their acts, so as to evade extradition. International
offences do not come within the purview of the rule of non-extradition of
political criminals.10 2 The hitch is that treaties defining international offences
do not always create an absolute duty of extradition, and, short of such a
duty by treaty, the State holding the offender is not bound to accede to the
extradition request (regardless of the political or other nature of the offence).
D. Certain rules have crystallized in the practice of States in regard to
the admissibility of defences and excuses relied upon by international offen-
ders. On this see infra, § IX.
E. In the absence of an express provision-in a treaty -defining an
international offence-in respect of the maximal penalty that can be meted
out to offenders, the prosecuting State may determine the sentence at its
discretion. 1' In effect this means that any usual punishment (including the
death sentence) can be inflicted, depending on the circumstances. Often
the treaty instructs that "severe penalties" be imposed. 104 The Narcotic
101 See Kelsen, The Law of the United Nations (London, Stevens, 1950) 48.
102 See Dinstein, International Treaties (Tel Aviv, Schocken, 1974, in Hebrew) 182-7.
103 See, e.g., Geneva Convention on the High Seas, supra n. 5 at 846 (Art. 19);
United Nations Convention on the Law of the Sea, supra n. 6 at 1289 (Art. 105).
104 See, e.g., Hague Convention for the Suppression of Unlawful Seizure of Aircraft,
Drugs Convention demands that the particular penalty for serious offences
contrary to its provisions shall be imprisonment. 10 5 Still, rules have also
evolved in practice in regard to mitigating factors; see infra, § X.
V
When international law defines an act as an offence, the upshot is that
the decision whether or not to prosecute offenders is not left to the unfet-
tered discretion of States, which are subjected to international obligations
in the matter. Yet, the pivotal question is whether, over and above the
duties devolving on States, there are also international obligations incurred
directly by individuals. Many jurists maintain that this is by no means the
case. In their opinion, the duty of trial and punishment-binding the
Contracting State-is the sole international obligation generated by the
treaty, and the individual is only indirectly affected by this obligation as an
object of the conduct of the State. 0 6 Or-as Kunz contended in a reference
to the Genocide Convention-the crime created by the Convention is a
crime "under international law" (i.e., a crime defined by that law), not
a crime against international law: the act can only be a crime against
internal law, provided that the prohibitions of the Convention are incor-
porated in the domestic legislation. 1 7 Even the fact that special rules
relating to criminal jurisdiction may be applicable to offences defined by
international law does not impress the protagonists of this school of thought.
For, to their mind, even if universal jurisdiction is established over the
offence, that does not suffice to impose duties directly on the individual:
it is merely a case of an extraordinary extension of the regular criminal
jurisdiction of the State.0 8 The extension of jurisdiction has a palpable
impact on the individual caught in its net, but it does not transform him
from an object into a subject of international law.
It is not easy to refute this approach-and to insist on the existence of
international offences in the full sense of the term-as long as no per-
manent International Criminal Court has been established for the trial of
supra n. 71 at 131 (Art. 2); Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, supra n. 74 at 144 (Art. 3).
1o5 Single Convention on Narcotic Drugs, supra n. 67 at 252 (Art. 36(1)).
106 See Hudson, International Tribunals, Past and Future (Carnegie Endowment for
Int'l Peace, Washington, D.C., 1944) 182.
XOKunz, "The United Nations Convention on Genocide," (1949) 43 Am. J. Int'l L.
738, 745.
108 See Schwarzenberger, "The Problem of an International Criminal Law," in Inter-
national Criminal Law (ed. by Mueller and Wise, South Hackensack, N.J., Roth-
man, 1965) 3, 10, 16.
international offenders. It is true that International Military Tribunals func-

tioned successfully at Nuremberg and Tokyo, but those were judicial bodies
that were set up ad hoc for the prosecution of the major war criminals of
the Second World War, and when their duties were discharged they ceased
to operate. 1 9 It is symptomatic that when Israel seized Eichmann, it did
not possess an option of handing him over for trial by any extant inter-
national court.
The idea of founding a permanent international penal tribunal has been
contemplated for a long time. In Geneva, in 1937-simultaneously with the
Convention on Terrorism-a supplementary Convention for the Creation of
an International Criminal Court was adopted. 110 Neither Convention, how-
ever, has come into force. As has been pointed out above, the Genocide
Convention (like the Apartheid Convention) visualizes the possibility of the
establishment of an international penal tribunal and provides that offenders
may be brought before such a supranational court if it is created. Concur-
rently with the formulation of the relevant clause in the Genocide Convention
(in 1948), the General Assembly of the United Nations invited the Inter-
national Law Commission to study the desirability and possibility of
establishing an international judicial organ for the trial of persons charged
with genocide or other crimes prescribed in international conventions."' The
Commission appointed two Special Rapporteurs on the subject. One of
them-Alfaro-responded to the dual question affirmatively. 12 The other-
Sandstrom-reached a negative conclusion, although he did not deny the
existence of international criminal law. 113 The Commission, in 1950, decided
overwhelmingly to endorse Alfaro's view, and replied favourably to the
General Assembly." 4 In the course of the same year, the General Assembly
appointed a special Committee on International Criminal Jurisdiction. In
1951, the Committee 'prepared a Draft Statute for an International Criminal
Court." 5 The Statute would have established such a Court to try persons
accused of crimes under international law, and provides that the Court shall
109 See Woetzel, The Nuremberg Trials in International Law (London, Stevens; N.Y.,
Praeger, 1962) 40.
110 Hudson, supra n. 87 at 880.
III G.A. Res. 260(111) (B), United Nations Resolutions (Series 1) (ed. by Djono-
vich, 1973) vol. 2, p. 241, id.
112 AIfaro, "Report on International Criminal Jurisdiction," 1950 (A/CN.4/15),
[1950] 2 Yrbk. Int'l L. Comm'n 1, 16.
113 Sandstrbm, "Report on International Criminal Jurisdiction," 1950 (A/CN.4/20),
[1950] 2 Yrbk. Int'l L. Comm'n 18, 21, 23.
114 Report of the International Law Commission to the General Assembly, 2nd Ses-
sion, supra n. 11 at 378-9.
"15 (1952) 46 Am. J. Int'l L., Supp. 1.
apply international law-including international criminal law-as well as

national law where appropriate."1 6 Clearly, the Statute is based on the major
premise that international law can directly impose criminal prohibitions on
the individual, irrespective of the duties which he owes under the national
legal system. 117 The General Assembly set up another Committee for a
review of ,the 1951 Draft. The new Committee formulated, in 1953, a Revised
Statute set on the same postulate."18 As amended, Art. 1 of the Draft
Statute reads:
There is established an International Criminal Court to try natural
persons accused of crimes generally recognized under international
9
law.l
Discussion of the question of founding an International Criminal Court was,
however, frozen at the General Assembly, and no meaningful progress has
taken place to this day.
Faute de mieux, as long as no international penal tribunal has been
inaugurated, the trial of persons charged with offences defined by interna-
tional law must take place in the national courts of States (mainly, States
Parties to international treaties). These courts may be regarded, for this
purpose, as organs of the international community applying international
criminal law and bringing it home to the individual, who is directly subjected
to international obligations. 120 It must be comprehended that international
criminal law is taking its first steps and is conspicuous by its primitive nature
even against the background of the general primitivism prevailing in the
international legal system. As put by the Supreme Court of Israel in the
EichrnannTrial:
The criminal branch of international law... is indisputably in a pri-
mordial-and, if you wish, 'primitive'-stage of development...
It is true that international law does not lay down explicit and gradual
penal sanctions; that no international criminal court is yet in existence,
nor is there an international penal machinery. But these difficulties-
116 Ibid. (Arts. 1-2).

117 See Liang, "The Establishment of an International Criminal Jurisdiction: The
First Phase," (1952) 46 Am. J. Int'l L. 73, 76.
118 On the differences between the two texts see Liang, "The Establishment of an
International Criminal Jurisdiction: The Second Phase," (1953) 47 Am. J. Int'l L.
638-657.
119 1953 Committee on International Criminal Jurisdiction, Revised Draft Statute for
an International Criminal Court, Basic Documents of the United Nations (ed.
by Sohn, 1956) 100, id.
120 See Kelsen, supra n. 2 at 125-131.
which only mirror the limited degree of evolution reached by interna-

tional criminal law at this stage-are surmounted by it, for the time
being, by the authority that it gave to the States of the world to punish
violations of its provisions. That they do by implementing these pro-
visions, either directly or through national-internal legislation in which
21
they are adopted and transformed into the local law.1
As the Court added, the State prosecuting the international offender serves
in the role of "keeper" of international law. 122
While this situation lasts, international criminal law is admittedly beclouded
by doubts. From the viewpoint of the offender-facing a regular judge in a
domestic court-the criminal trial looks just like ordinary municipal pro-
ceedings. From the standpoint of the national judge, he does not apply
international law unless it is incorporated in the national legal system and
to the extent of such incorporation. If and when a permanent international
criminal court would come into being, it may become possible to distinguish
between real international offences (namely, international duties incurred
directly by the individual, who is criminally liable for their infraction)-
over which the court would have jurisdiction-and national offences origi-
nating in international treaties (that is, international obligations imposed on
the State, which is required to take domestic measures to suppress the
forbidden acts through the application of effective sanctions against their
perpetrators). But as long as no such court exists, the distinction is not easy
to draw.
Inasmuch as the authors of international treaties know full well that there
is no practical way of prosecuting offenders of whatever type except by
national courts, they are apt to draft the instrument ambiguously (in one
of the latter forms out of the five listed above), even when their intent is
to create a genuine international offence. The example of the 1907 Hague
Regulations, adduced by the International Military Tribunal at Nuremberg,
is a good case in point: these Regulations in no way resort to the terminology
of international duties borne by individuals, and do not even hint at the
possibility of imposing penal sanctions on natural persons, yet they have
always served as a basis for prosecution of war criminals for contravention
of ,the international laws of war.12 But perhaps it is characteristic that the
true nature of war crimes as international offences was elucidated beyond
doubt only as an outcome of the Nuremberg Trial,124 in other words, as a
121 Eichmann v. Attorney General, supra n. 31 at 2051-3.

122 Ibid., at 2066. See also ibid., at 2069.
124 Ibid., at 248.
result of the fact that an international penal tribunal (albeit ad hoc) had been
established. Previously -there were those who believed that war crimes were
2
merely offences against the national laws of States.1 5
The Nuremberg Judgment transcends in its importance the specific ques-
tion of crimes connected with war. In many respects, the International Mili-
tary Tribunal laid the groundwork of modern international criminal law
when it proclaimed:
That international law imposes duties and liabilities upon individuals
as well as upon States has long been recognized .... individuals can
be punished for violations of international law. Crimes against inter-
national law are committed by men, not by abstract entities, and only
by punishing individuals who commit such crimes can the provisions
of international law be enforced.12
The rule that international law may directly impose duties on individuals,
and that individuals bear criminal responsibility for infringement of these
duties, constitutes a part of the Nuremberg Principles as formulated by the
12
International Law Commission.
VI
Obviously, one cannot as yet claim the existence of an international cri-
minal code with its inherent logic and systematic order. The international
offences enumerated above have been created in different periods for dif-
ferent reasons and cannot be viewed as chapters in a comprehensive corpus
juris. In 1947, however, the General Assembly directed the International
Law Commission to prepare a draft code of offences against the peace and
security of mankind (in tandem with the formulation of the Nuremberg
Principles).128 The Commission submitted a first draft of the projected code
in 1951,12 and in 1954 presented a revised text. ° The code is based on -the
125 See Manner, "The Legal Nature and Punishment of Criminal Acts of Violence
contrary to the Laws of War," (1943) 37 Am. J. Int'l L. 407, 407-410.
126 International Military Tribunal, supra n. 13 at 220-1.
12 Report of the International Law Commission to the General Assembly, 2nd
Session, supra n. 11 at 374 (Principle I and Commentary).
128G. A. Res. 177 (II), United Nations Resolutions (Series 1) (ed. by Djonovich,
1973) vol. I, pp. 302-3. For the background of the Resolution see Dinstein, The
Defence of 'Obedience to Superior Orders' in InternationalLaw (Leyden, Sijthoff,
1965) 227-8.
129 Report of the International Law Commission to the General Assembly, 3rd Session,
1951 (A/1858), [19511 2 Yrbk. Int'l L. Comm'n 123, 133-7.
130 Report of the International Law Commission to the General Assembly, 6th Session,
1954 (A/2693), [1954] 2 Yrbk. Int'l L. Comm'n 140, 149-152.
principle of direct individual responsibility for international crimes,' 3' but it

is limited to offences against the peace and security of mankind. It is manifest
that not every international offence comes within these bounds: breaking
submarine cables, for instance, need not constitute an offence against peace
or security.' 32 The 1954 draft was "put on the shelf" for many years, yet
interest in it has been revived in recent years and the General Assembly has
133
resumed consideration of the topic.
It is possible to classify existing international offences into several catego-
ries for purposes of systematic legal analysis. We shall mention three pos-
sible classifications:
a) Peacetime offences and wartime offences. Some of the international
offences catalogued (particularly war crimes) can only be committed in the
course of war. Other international offences (like counterfeiting) are charac-
teristic of conditions of peace, and their criminal nature may disappcar upon
the outbreak of hostilities. In between, there are international offences (such as
genocide) which can be committed during either peace or war. We have
already discussed the special problems that spring up in this context where
crimes against humanity are concerned.
b) Private offences and official offences. There are international offences
(primarily piracy) that can only be committed by private persons. If a per-
son holding an official position performs the act, either he does not in this
instance function in his official capacity, or the act is beyond the pale of the
offence at issue. On the other hand, there are international offences (crimes
against peace provide an example) which can only be committed by organs
of States. In between, there are offences (e.g., war crimes134), which can be
committed both by private persons and by State organs. Occasionally (as
with genocide) the working assumption is that the offence will be committed
by State organs, but this assumption is rebuttable: it is not out of the question
for the offence to be committed, in appropriate circumstances, by private
persons.
131 Report of the International Law Commission to the General Assembly, 3rd Session,
supra n. 129 at 134-5 (Art. 1 and Commentary).
132 See Parry, "Some Considerations upon the Content of a Draft Code of Offences
against the Peace and Security of Mankind," (1950) 3 Int'l L.Q. 208, 211.
133
See Gross, "Some Observations on the Draft Code of Offences against the Peace
and Security of Mankind", (1983) 13 Is. Yrbk. on Human Rights 9-48.
134 The reference is to war crimes as a comprehensive category. When every single
war crime is analyzed separately, it is found that some crimes are committed
chiefly by State organs; some are committed only by private individuals; and
some may be committed both by private individuals and by State organs. See
Sperduti, "L'Individu et le Droit International", (1956) 90 Recueil des Cours 727,
773-4.
c) Offences connected and offences not connected with violations of

human rights. Some international offences (for instance, counterfeiting) have
nothing to do with a violation of human rights as such. Conversely, there are
international offences the quintessence of which is a denial of basic human
rights, like the right to life (genocide, killing of prisoners-of-war and so on).
The modern tendency is to transform serious violations of international
human rights-committed by organs of the State-into international offences,
and then we reach a more sophisticated stage in the status of the individual
as a subject of international law. Both international rights and international
duties devolve directly on individuals. When -the human rights of individual
A are infringed, individual B-who viola-tes these rights in connection with
his official position in the State-becomes an international offender.
VII
The treaties defining international offences frequently provide that not only
the forbidden conduct constitutes an offence, but also a series of related acts.
*rhus, by way of illustration, Art. III of the Genocide Convention stipulates:
The following acts shall be punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt -to commit genocide;
(e) Complicity in genocide. 135,
But it is premature to think, at -this stage, that general principles of inter-

national criminal law have already evolved -to the effect that every act of
complicity, conspiracy, attempt and incitement to commit an international
offence is by itself such an offence. In each case the concrete treaty has to
be examined on its merits, to see whether or not the definition of the given
offence covers these 'situations, entirely or partially. Thus, the Hague and
Montreal Conventions, in the definition of the offences, include attempt
and complicity, but not conspiracy or incitement. 13 The Geneva Conventions
for the Protection of War Victims refer specifically to persons ordering that
n. 33 at 159.
136 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, supra n. 71
at 131 (Art. 1); Montreal Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, supra n. 74 at 144 (Art. 1(2)).
"grave breaches" be committed. 1'7 Issuing a command to commit a pro-

hibited act is plainly one form of being an accomplice to crime.
VIII
An important issue arises as regards the prescription of international offen-
ces. General international law does not by itself provide for any such pres-
cription. The question is, however, to what extent an international offender
may benefit from the application of the regular statutes of limitations in force
within the internal legislation of the prosecuting State. The problem was
placed on the international agenda when twenty years had elapsed since the
end of the Second World War, while many of the Nazi war criminals were
yet to stand trial. In 1968, the General Assembly adopted a Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity. 138 Under the first Article of this Convention, no statutory
limitation is to apply to these crimes, irrespective of -the date of their
commission. 139 The Convention is admittedly very controversial, because
that same Article needlessly defines crimes against humanity and does it
in an arbitrary and tendentious way, its targets being less the criminals of
the Second World War and more South Africa and Israel. 40 The Convention
applies also to genocide and to "grave breaches" of the Geneva Conventions,
but not to other international offences, and in particular it eschews crimes
against peace.
In view of the controversy surrounding the United Nations Convention,
another instrument on the -same subject was drafted in 1974 under the
auspices of the Council of Europe. This is the European Convention on the
Non-Applicability of Statutory Limitation to Crimes against Humanity and
War Crimes. 14' The European Convention relates to genocide, "grave
breaches" of the Geneva Conventions, comparable violations of the laws
of war under customary international law and other offences which every
Contracting Party may add by declaration in the future.' The European
Convention applies only in case that the offence under consideration has not
already prescribed before its entry into force.' 43 The underlying assumption
137 Supra n. 49.
139Ibid., at 161.
14oSee Miller, "The Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity", (1971) 65 Am. J. Int'l L. 476,
477-8, 490-2.
141 (1974) 13 Int'l Legal Materials 540.
142 Ibid., at 540-2 (Arts. 1, 6).
143 Ibid., at 541 (Art. 2).

therefore is that, in the absence of an express -treaty provision, .the ordinary

statutory (internal) limitation rules apply to international offences. This is
particularly -to be borne in mind inasmuch as, according to one school of
'thought, the non-limitation principle anyhow exists in customary international
44
law, so that the United Nations Convention has a declaratory nucleus.1
IX
There do not as yet exist international offences based on strict liability.
That is to say, all recognized international offences actually have two consti-
tuent elements: the criminal act (actus reus) and a criminal consciousness
(mens rea). Although the treaties defining the offences do not always clarify
this explicitly, the definition usually includes a reference to the element of
mens rea as an essential condition to the completion of the offence. At times,
the treaty requires a specific criminal intent, like 'the intent to create a state
of terror referred to in the (unratified) Terrorism Convention or the intent
to destroy-in whole or in part-a national, ethnical, racial or religious group,
which (as indicated) is the essence of genocide. At other times there is
general reference to mens rea exemplified by phrases like "intentional"' 14
and "wilful". 14 6 The treaties may stress that "culpable negligence" is suffi-
cient for conviction, 14' but it emerges from the practice of States that, in the
complete absence of criminal consciousness, there is no room for convicting
a person accused of an international offence. This implies that the accused
may avail himself of two defences: compulsion and mistake.
1. Compulsion. As the International Military Tribunal at Nuremberg

held, the "true test" of criminal responsibility is "whether moral choice was
in fact possible". 148 Lack of moral choice means that there was no alternative
for the acting person if he wanted to save his life or the life of people dear
to him (or to avoid grave injury 'to body or property). It is possible to refer
here to two separate sub-defences-(a) duress under threat, and (b) necessity
144 See Miller, supra n. 140 at 481-3.

145 See, e.g., Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, supra n. 74 at 143 (Art. 1); Convention on the Pre-
vention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, supra n. 76 at 76 (Art. 2).
14 See the Geneva Conventions on the Protection of War Victims, supra nn. 44-47.
147See Geneva Convention on the High Seas, supra n. 5 at 849 (Art. 27); United
148International Military Tribunal, supra n. 13 at 221. Cf. the French official text of
the Judgment, Dinstein, supra n. 128 at 149.
tc avoid fatal results in other circumstances-but there is no uniform and

binding terminology in this field. 1 49 Sometimes, the defence of compulsion
is anchored in the very treaty defining the international offence. Thus, the
Law of the Sea Conventions provide that no offence is committed by persons
who broke submarine cables with the object of saving their lives or their
ships (after having taken all necessary precautions to avoid the break). 15
But even without such express stipulation, the defence has gained a lot of
support, particularly in the war crimes trials. In the Flick Trial, an American
Military Tribunal, in 1947, decided that some of the accused-industrialists
who had employed prisoners-of-war and civilians in forced labour-could
benefit from the defence of compulsion, because, under the Nazi reign of
terror, they would have been brutally punished in case of attempt to obstruct
governmental policy, and they had faced a "clear and present danger". 151 It
must be taken into account, however, that the defence of compulsion is
subject to three very serious reservations:
a) It has to be clearly established that the defendant was genuinely un-
willing to commit the offence, and would have avoided action but for the
compulsion. As laid down by the American Military Tribunal, in 1948, in
the Krupp Trial, if the will of the accused is not overpowered, but instead
coincides with the will of those who allegedly compelled him to act, the
defence is insupportable. 5 2 The Tribunal consequently-upon the facts-
distinguished the case at hand from the Flick precedent, although both in-
stances involved industrialists charged with the same offence of forced labour,
and despite a reaffirmation in principle of the availability of the defence of
compulsion. ' - It also follows that one cannot have recourse to the defence
15 4
of compulsion if the offence was committed after the duress had ceased.
b) Another American Military Tribunal pointed out, in 1948, in the
Einsatzgruppen Trial, that the defence of compulsion is inadmissible unless
proved that the actual harm caused by the offence was not disproportionately
greater than the potential harm to the defendant which would have ensued
had he refrained from committing the offence.1'5 The Tribunal used the
149 See In re Krupp and Others (United States Military Tribunal, Nuremberg, 1948),
15 I.L.R. 620, 629.
5OGeneva Convention on the High Seas, supra n. 5 at 849 (Art. 27); United
151 In re Flick and Others (United States Military Tribunal, Nuremberg, 1947), 14
I.L.R. 266, 269-270.
1 52
In re Krupp and Others, supra n. 149 at 631.
153 Ibid., at 628-631.
154See Einsatzgruppen Trial (United States Military Tribunal, Nuremberg, 1948),
15 I.L.R. 656, 666.
155 Ibid.
following illustration: if the accused is threatened with a few days of con-

finement, the defence of compulsion will be rejected when the charges involve
killing.' 5 6
c) The cardinal question is whether the defence of compulsion is admis-
sible, in any circumstances whatsoever, in case of murder. In the Einsatzgrup-
pen Trial it was stated, in the context of the killing of Jews by Nazi exter-
mination squads:
there is no law which requires that an innocent man must forfeit his
life or suffer serious harm in order to avoid committing a crime which
he condemns.'57
Ultimately the defence of compulsion was repudiated here for factual
W s
reasons, but the whole juridical thesis has been strongly criticized. 11,9 The
correct approach is ,that no degree of duress or necessity may justify murder,
let alone genocide. 6
2. Mistake. A mistake may be of facts or of law. It is indisputable that

mistake of facts exculpates: ignorantia facti excusat. At times, the treaty
defining an international offence clarifies by itself that knowledge of facts is
a prerequisite to conviction.' 6 ' But, even in other instances, it is essential to
bear in mind the state of things in which the defendant believed, honestly
but mistakenly.'62 An example may be drawn from the decision of the
Court of Appeal of Norway, in 1947, in the Hans Case,160 which held that a
person who had executed numerous Norwegians without trial must 'be ac-
quitted because he had mistakenly believed that in fact the executions had
been carried out pursuant to legal proceedings and court sentences. 164 The
fundamental problem in such circumstances is, of course, to what extent the
156 Ibid.
157 Ibid., at 667.
158 Ibid.
15,9 See L. Oppenheim, International Law (London, Longmans, Green & Co., 7th ed.,
by Lauterpacht, 1952) vol. 2, pp. 571-2.
161 See, e.g., the clause in regard to participation in the operation of a pirate ship or
aircraft, Geneva Convention on the High Seas, supra n. 5 at 846 (Art. 15(2));
United Nations Convention on the Law of the Sea, supra n. 6 at 1288 (Art. 101
(b)).
162 See Dinstein, supra n. 128 at 83-4.
163 In re Hans (Norway, Court of Appeal, 1947), 14 I.L.R. 305, 306.
164 For an analysis of this decision, see Dinstein, supra n. 128 at 203-4.
contention of the accused that he believed in the existence of an imaginary

state of affairs is credible. 16 5
As for mistake of law, it is very doubtful whether the rule of ignorantia
juris non excusat-widely accepted within national legal systems-has been
espoused by international criminal law. Several jurists take the view that,
owing to the relative uncertainty of many of the norms of international
criminal law-as compared to the prohibitions of national law-there is no
room for an unrealistic presumption that every person is acquainted with the
international legal scheme.' 66 In the summing-up of the Judge Advocate,
presenting the legal reasoning of the Judgment rendered by a British Military
Court at Hamburg, in 1945, in the Peleus Case, it was enunciated:
It is quite obvious that no sailor and no soldier can carry with him a
library of international law, or have immediate access to a professor
67
in that subject.'
In many trials of war criminals, the courts went into the question whether
the defendants had been aware of the illegality of their acts, and convicted
them only where it was established-in the light of the evidence-that the
question must be resolved affirmatively.' 68
Side by side with the two admissible defences based on lack of mens rea,
practice demonstrates that other defence pleas are frequently resorted to
(particularly by war criminals), and it is useful to see with what degree
of actual success.
3. Obedience to Superior Orders. This is without doubt the most popular

defence plea of war criminals, but it may arise in respect of any international
offence and whenever there exists a hierarchical system in which subordi-
nates owe obedience to the instructions of their superiors. 16 9 The plea is
based on a grave practical dilemma which confronts a soldier (or other
subordinate) ordered to commit an international offence: whether he obeys
the order (and infringes provisions of international law) or disobeys
the order (and complies with provisions of international law), he risks
severe punishment either for the infringement of international law or for the
165 See ibid., at 202-3, and In re Grumpelt (Scuttled U-Boats Case) (British Military
Court, Hamburg, 1946), 13 I.L.R. 309.
166 See Glaser, "L'Ordre Hi6rarchique en Droit Pnal International", (1952-3) 33
Revue de Droit Pinal et de Criminologie 283, 317-8.
167 Peleus Case (British Military Court, Hamburg, 1945), 13 I.L.R. 248, 249.
168 See Dinstein, supra n. 128 at 185-7. See also In re Zimmermann (Holland, Spe-
cial Court of Cassation, 1949), 16 I.L.R. 552, 553.
169 See Dinstein, supra n. 128 at 1-2, 121.
disobedience of orders.1 7 0 Before the Second World War, the prevailing

doctrine in the legal literature-which had originated with Oppenheim I 71-
propounded that the fact of obedience to superior orders constitutes per se,
automatically and a priori, a complete and absolute defence against a cri-
minal prosecution under international law.172 In the course of the war, an
opposite doctrine developed according to which the fact of obedience to
superior orders does not by itself create a defence, nor can it be taken into
account within the compass of any admissible defence ('like compulsion or
174
mistake)17-3 This doctrine was expressed in Art. 8 of the London Charter,
and gained confirmation by the International Military Tribunal at Nurem-
berg.1 7 - Another widely supported thesis is to the effect that obedience to
superior orders should be regarded as a valid defence, but only in case the
defendant acted without being aware of the illegality of his acts, and on
condition that the order was not manifestly unlawful. 176 Yet, in our opinion,
the right approach is that obedience to superior orders constitutes not a
defence per se but only a factual element that may be taken in-to conside-
ration, in conjunction with the other circumstances of the given case, within
the ambit of a defence based on lack of mens rea (namely, compulsion or
mistake), l 77 In other words, there is no place either for a complete defence
or for absolute liability: the admissible defence is compulsion or mistake,
whereas obedience to superior orders must be regarded as part of the
fabric of facts attesting to the presence or absence of mens rea on the part of
the accused. Evidently, every case must be determined on the basis of its
merits rather than of hard and fast rules. As the American Military Tribunal
proclaimed, in 1948, in the Einsatzgruppen Trial:
The obedience of a soldier is not the obedience of an automaton. A

soldier is a reasoning agent. He does not respond, and is not expected
to respond, like a piece of machinery.'7 8

171 L. Oppenheim, InternationalLaw (London, Longmans, Green & Co., 1st ed., 1906)
vol. 2, pp. 264-5.
172 See Dinstein, supra n. 128 at 38 et seq.
173 See ibid., at 68 et seq.
174 Charter of the International Military Tribunal, supra n. 10 at 260. On the precise
meaning of this Article in view of its travaux priparatoires,see Dinstein, supra
n. 128 at 117.
175 International Military Tribunal, supra n. 13 at 221. On the correct interpretation
of the Judgment, see Dinstein, supra n. 128 at 147 et seq.
176 See Dinstein, supra n. 128 at 26 et seq.
17T See ibid., at 88, 214.
178 Einsatzgruppen Trial, supra n. 154 at 665.
When the circumstances of the case show, however, that the soldier obeyed
orders under duress (within ;the legitimate perimeter of the defence of com-
pulsion) or without being aware of the true state of affairs or the illegality
of the order (within the permissible bounds of the defence of mistake),
he ought to be relieved of responsibility.
4. Acts of State. It is well established that every State is entitled to

immunity from the jurisdiction of courts in other States, in respect of acts
performed by public organs in their official capacity and imputed to the State
(as acts of State) .179 Kelsen opined that this immunity relates also to inter-
national offences, including, and especially, war crimes.1's His thesis has
to do with acts committed in obedience to superior orders, provided that the
source of the orders is in the Government, but it also covers the case where
the Government merely authorized the act rather than commanded it.1s '
Inasmuch as some international offences (such as crimes against peace) can
only be committed by organs of the State, the thesis cuts the ground from
under them. Moreover, even in other instances (like war crimes), the upshot
of the thesis is that if a State- for example, Nazi Germany-adopts a
coordinated policy of crimes on a vast scale, all offenders are shielded by
the aegis of immunity. No wonder that Art. 7 of the London Charter speci-
fically stipulates that the official position of defendants shall not free them
from responsibility. 182 Under Art. IV of the Genocide Convention, too,
offenders must be punished regardless of the question whether they are
public officials or private individuals.183 The International Military Tribunal
at Nuremberg entirely rejected the application of Kelsen's thesis to inter-
national offences:
The principle of international law, which under certain circumstances
protects the representatives of a state, cannot be applied to acts which
are condemned as criminal by international 'law. The authors of these
acts cannot shelter themselves behind their official position in order to
be freed from punishment in appropriate proceedings. ... He who vio-
lates the laws of war cannot obtain immunity while acting in pursuance
179 See Underhill v. Hernandez (United States, Supreme Court, 1897), 168 U.S. 250,
252.
18o Kelsen, "Collective and Individual Responsibility for Acts of State in International
Law", [1948] Jew. Yrbk. Int'l L. 226, 230-1.
n. 33 at 159.
of the authority of the state if the state in authorizing action moves

84
outside its competence under international law.'
That is to say, when international offences are involved, the "acts of State"
immunity is rejected: the State is incompetent to allow the criminal acts, and,
if it gave permission to commit them, it is incapable of coming to the
rescue of the accused. The ruling of the International Military Tribunal has
185
been endorsed in many cases, inter alia in the Eichmann Trial.
5. Obedience to National Law. Obedience to national legal norms must

be distinguished from obedience to superior orders. Superior orders may
be illegal from the viewpoints both of national and international law, so
they do not necessarily entail a clash between the two legal systems. But
when national law ordains the commission of acts constituting international
offences, the central question is that of the relationship between international
and national law. In general, when there is a conflict between international
and national law, while the State incurs international responsibility for not
having taken the required steps to amend its national legislation, on the
national plane the rules of national law (although in conflict with the
international undertakings of the State) remain in force. On the other hand,
when international criminal law directly imposes obligations on the individual,
the provisions of national law which collide with these obligations are annul-
led by international law. In the words of the American Military Tribunal, in
1948, in the German High Command Trial:
International Common Law must be superior to and, where it conflicts
with, take precedence over National Law or directives issued by any
national governmental authority. A directive to violate International
Criminal Common Law is therefore void and can afford no protection
18
to one who violates such law in reliance on such a directive.
In the Justice Trial, another American Military Tribunal, in 1947, ruled
that the defence plea of obedience to national law is founded on a basic mis-
conception: when a national law (like the Nazi German law) obligates the
commission of war crimes and crimes against humanity, the very enforce-
ment of that law (as well, evidently, as its enactment) signifies complicity
with the crime, and complicity is no defence. 197 It goes without saying that
the mere fact that the national legal system does not incorporate the provi-
184 International Military Tribunal, supra n. 13, at 221.
185 Eichmann v. Attorney General, supra n. 31 at 2070-5.
186 German High Command Trial, supra n. 20 at 396.
x Justice Trial (United States Military Tribunal, Nuremberg, 1947), 14 I.L.R. 278,
286-7.
ISRAEL LAW REVIEW ['Is.L.R. Vol. 20
sions of international law defining an act as an offence (so that the inter-
national offence is not at the same time an internal offence)-there being no
national legal obligation to commit the offence-does not relieve the offender
of responsibility under international law. This is one of the Nuremberg Prin-
88
ciples as formulated by -the International Law Commission.
6. Diplomatic Immunity. A foreign diplomatic agent enjoys complete

"personal" immunity from the criminal jurisdiction of local courts. 8 9 This
immunity encompasses offences of all types, including international offences.
It must be perceived, however, that:
a) As indicated by -the International Military Tribunal for the Far
East, in 1948, in the Tokyo Trial (where the plea of diplomatic immunity
had been raised by one of the defendants):
Diplomatic privilege does not import immunity from legal liability, but
only exemption from trial by the Courts of the State to which an Am-
bassador is accredited. 190
Meaning that the plea of diplomatic immunity is inadmissible in proceedings
held before an international tribunal or the internal courts of the State which
the diplomatic agent represents. Furthermore, no immunity can be claimed
before courts of any third State having jurisdiction, unless the diplomatic
agent passes through that State while proceeding to or returning from his
1
post. 91
b) As the American Military Tribunal ruled, in 1949, in the Ministries
Trial, the "personal" immunity of diplomatic agents comes to an end with
the termination of the diplomatic functions. 1' Thereafter, diplomatic immu-
nity ratione materiae continues to subsist, but it pertains only to acts of
State performed in the exercise of diplomatic functions, and the commission
of international offences does not come within the definition of such
functions. 1m
c) Diplomatic immunity is never personal in the precise meaning of the
188 Report of the International Law Commission to the General Assembly, 2nd Ses-
sion, supra n. 11 at 374 (Principle II and Commentary).
189See Dinstein, "Diplomatic Immunity from Jurisdiction Ratione Materiae", (1966)
15 Int'l & Comp. L.Q. 76, 76-78.
19OTokyo Trial (International Military Tribunal for the Far East, 1948), 15 I.L.R.
356, 372.
191 See Vienna Convention on Diplomatic Relations, 1961, (1961) 55 Am. J. Int'l L.
1064, 1075 (Art. 40).
192Ministries Trial (United States Military Tribunal, Nuremberg, 1949), 16 I.L.R.
344, 361.
term, and it belongs by law to the State represented by the diploma-tic agent.
This State may waive diplomatic immunity at any time and in any circum-
94
stances; it can also do so when an international offence is committed.
7. Immunity of Heads of States. The Head of a foreign State enjoys

complete "personal" immunity-comparable to diplomatic immunity-from
the local jurisdiction of a State which he visits on a mission or for private
reasons. This "personal" immunity (which in fact is bestowed upon the State
and not on the person) is separate from the material immunity guaranteed
to the Head of State-as to any other organ of the foreign State- in regard
to acts of State that he performs. 19 ; According to one view, the "personal"
immunity of the Head of State is anyhow inapplicable when he falls into the
hands of an enemy in wartime, and he can be put on trial-like any other
offender-for crimes against peace, war crimes and so forth.'" In any event,
various treaties defining international offences-including, to be on the safe
side, those relating to war-contain a special provision which debars the
immunity of Heads of States. Such a stipulation appears in Art. 7 of the
London Charter and in Art. IV of -the Genocide Convention.'9 Since geno-
cide can be committed in peacetime too, the last clause was necessary beyond
doubt.
Even when a defence plea is inadmissible (or is not admitted in the con-
crete case) as a reason for relieving the accused of responsibility, it can
usually be taken into account for evaluation of punishment. Thus, Art. 8
of the London Charter-which, as indicated, utterly excludes the possibility
of weighing the fact of obedience to superior orders within the ambit of any
defence whatsoever-allows of its being considered in mitigation of punish-
ment "if the Tribunal determines that justice so requires".' 98 Obviously, this
does not mean that obedience to superior orders must be an extenuating
factor. The International Military Tribunal at Nuremberg explicitly stated:
Superior orders, even to a soldier, cannot be considered in mitigation
where crimes as shocking and extensive have been committed cons-
ciously, ruthlessly and without military excuse or justification.1 99
194 See Schwarzenberger, The Law of Armed Conflict (London, Stevens, 1968) 509.
195 See Kelsen, supra n. 180 at 231.
198 See Schwarzenberger, supra n. 194 at 508.
197 Supra, nn. 182-183.
l 9 Supra n. 182.
But there are numerous examples of the fact of obedience ,to superior orders
bringing about relatively light sentences in other cases.2 °
It should be accentuated that not all the defence pleas listed above justify
leniency in punishment. With regard to the plea of acts of State, Art. 7 of
the London Charter expressly provides that (unlike the plea of obedience to
orders) it must not be considered even by way of mitigation of punish-
ment.20 1 Curiously enough, the Charter of the International Military Tribunal
for the Far East-proclaimed by General MacArthur in his capacity as the
Supreme Commander for the Allied Powers in the Far East-combines in
one Article (No. 6) the provisions of Arts. 7 and 8 of the London Charter,
thereby permitting account to be -taken, in the evaluation of punishment, not
only of obedience to superior orders but also of the official position of the
accused. 2 It is debatable, perhaps, whether the official position of minor
functionaries should be regarded as an extenuating or an aggravating cir-
cumstance, but doubtless where a Head of State-who is responsible for a
systematic violation of international law-is concerned, his key position
justifies a heavier rather than a lighter sentence. It is noteworthy that, in the
Tokyo Trial, the President of the Tribunal-the Australian Judge Webb-
held in a separate opinion that, since the Emperor of Japan had not been
indicted, the punishment of -the other offenders should be relatively miti-
gated." m
XI
This, in a nutshell, is the current state of international criminal law.

Progress has been slow and much is left to be desired. Nevertheless, the
wheels are clearly in motion, and the Nuremberg Trial should be regarded
as the end of the beginning. The time is probably not yet ripe for a compre-
hensive codification of international criminal law. But there is already a
need for streamlining -the shape of its various norms in a more methodical
way. Lawyers and statesmen alike should rivet their attention to this branch
of international law. In the final analysis, it exceeds in its potential import-
ance many other international legal problems which are in the limelight at
present.
200 See Dinstein, supra n. 128 at 188, 205-6.

201 Supra n. 182.
202 Charter of the International Military Tribunal for the Far East, 1946; Minear,
Victors' Justice: The Tokyo War Crimes Trial (1971) Appendix, 185, 187.
203 Tokyo Trial, supra n. 190 at 374.

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Citation: 20 Isr. L. Rev. 206 1985

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* This is a revised and updated version of an article which appeared in (1975)

1. Piracy. The pirate is regarded by international 'law as the "enemy of

2. War Crimes. War crimes constitute particularly grave offences against

3. Crimes against Peace. The London Charter provides, in Art. 6(a).

12 Charter of the International Military Tribunal, supra n. 10 at 260.

(subject to the exceptions of self-defence and collective security), but consti-

4. Crimes against Humanity. Art. 6(c) of the London Charter defines

1948), 15 I.L.R. 376, 379-383.

5. Genocide. The term "genocide" was coined by Lemkin against the

.1 Eichnann v. Attorney General, (1962) 16 (iii) P.D. 2033, 2048.

burning of books, the destruction of historical monuments, and other acts

38 See ibid., at 1145.

tains to it under conventional law (which is future-oriented), there is-and

6. Grave Breaches of the Geneva Conventions for the Protection of War

torture or inhuman treatment, 'including biological experiments; wilfully

7. Grave Breaches of the First Additional Protocol to the Geneva Con-

4 Ibid., at 215, 268.

Armed Conflicts (Protocol I),m considerably enlarges the list of grave

8. Breach of the Hague Convention for the Protection of Cultural Pro-

9. Apartheid. In 1973 the General Assembly of the United Nations

52 Laws of War 387.

10. Racial Discrimination. The 1965 International Convention on the

60 [1965] U.N. Juridical Yrbk. 63, 65.

14. Narcotic Drugs. According to Art. 36 of the 1961 Single Convention

15. Counterfeiting Currency. Art. 3 of the 1929 Geneva Convention for

17. Obscene Publications. In Art. 1 of the 1923 International Convention

66 96 U.N.T.S. 272, 274.

offence."' The Convention practically sets up universal jurisdiction over the

20. Crimes against Diplomatic Agents and Other Internationally Protected

71 [1970] U.N. Juridical Yrbk. 131, id.

21. Taking Hostages. In 1979 the General Assembly adopted an Inter-

22. Unauthorized Possession or Use of Nuclear Material. In 1979 the

23. Terrorism. The last mentioned Conventions were signed as a part of

80 [1979] U.N. Juridical Yrbk. 124.

group of persons or the general public.88 The Convention stipulates that

These are the principal international offences which are recognized-or

a) A categorical provision to the effect that the forbidden act constitutes

93 Charter of the International Military Tribunal, supra n. 10 at 257-260.

B. Contracting States are obligated to suppress international offences

international offenders. It is true that International Military Tribunals func-

apply international law-including international criminal law-as well as

116 Ibid. (Arts. 1-2).

which only mirror the limited degree of evolution reached by interna-

121 Eichmann v. Attorney General, supra n. 31 at 2051-3.

principle of direct individual responsibility for international crimes,' 3' but it

c) Offences connected and offences not connected with violations of

The following acts shall be punishable:

But it is premature to think, at -this stage, that general principles of inter-

"grave breaches" be committed. 1'7 Issuing a command to commit a pro-

143 Ibid., at 541 (Art. 2).

therefore is that, in the absence of an express -treaty provision, .the ordinary

1. Compulsion. As the International Military Tribunal at Nuremberg

144 See Miller, supra n. 140 at 481-3.

tc avoid fatal results in other circumstances-but there is no uniform and

following illustration: if the accused is threatened with a few days of con-

2. Mistake. A mistake may be of facts or of law. It is indisputable that

contention of the accused that he believed in the existence of an imaginary