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66
cp Ambos (n 33) 241: ‘piracy comes very close to an international crime stricto sensu’. For the
definition of piracy, see Art 101 UNCLOS. From the perspective of the law of the sea, see Chapter 18,
Section V(E)(i)(a).
67
See the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 95.
68
See the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
(adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, supplementing the United
Nations Convention against Transnational Organized Crime (n 2), with a definition of ‘trafficking in persons’ in
Art 3(a).
69
Enforced disappearance can constitute a crime against humanity (eg Art 7(1)(i) ICC Statute). For a defi-
nition, see Art 2 Enforced Disappearance Convention. From a human rights law perspective, see Chapter 16,
Section III(C). Further, see eg B Finucane, ‘Enforced Disappearance as a Crime under International Law:
A Neglected Origin in the Laws of War’ (2010) 35 Yale Journal of International Law 171.
70
See eg above (n 2). For the full list of the 12 sectoral international conventions dealing with terrorism,
see UN Office of Counter-Terrorism, ‘International Legal Instruments’, un.org/en/counterterrorism/legal-instru-
ments.shtml.
71
STL, Interlocutory Decision (n 9) para 85. Note that terrorism in time of armed conflict is – at least accord-
ing to most – a different matter, and one that goes beyond the scope of this chapter. See further A Bianchi and
Y Naqvi, International Humanitarian Law and Terrorism (Oxford, Hart, 2011).
72
STL, Interlocutory Decision (n 9) para 85.
73
See eg B Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon
Invents an International Crime of Transnational Terrorism’ (2011) 24 LJIL 677.
74
Bianchi and Naqvi (n 71) 285. Further, see notably B Saul, Defining Terrorism in International Law (Oxford,
OUP, 2006) 191–270, concluding that ‘arguments that terrorism is a customary international crime are premature’
(ibid, 270). But see Cassese (n 21) 148–49, arguing that such a crime exists.
75
See the Annexes to the Report of the Ad Hoc Committee established by General Assembly resolution 51/210
of 17 December 1996, Sixth session (28 January–1 February 2002), GAOR Fifty-seventh Session, Supplement
No 37, 11 February 2002, UN Doc A/57/37.
752 INTERNATIONAL CRIMINAL LAW
Ad Hoc Committee, inter alia to develop ‘a comprehensive legal framework of

conventions dealing with international terrorism’.76 While the debate on the CCIT has been
going on since 2000,77 there is persistent disagreement among States mainly as to whether
armed struggles for self-determination, or, more generally, the activities of non-State
parties to an armed conflict, should be excluded from the scope of the Convention, as well
as to whether ‘State terrorism’ should fall within the CCIT’s scope of application.78 While,
in December 2016, the UNGA revived the process by recommending its Sixth Committee
to ‘establish a working group with a view to finalizing the process on the draft
comprehensive convention on international terrorism’,79 it remains to be seen whether
States will reach an agreement on the CCIT any time soon.
i. Crime of Torture80
Unlike what is the case for terrorism, most agree that torture is an international crime. 81
The crime of torture is outlawed by the 1984 UN Convention against Torture, as well as the
1985 Inter-American Convention to Prevent and Punish Torture.82 In Questions relating to
the Obligation to Prosecute or Extradite, the ICJ noted that ‘the Parties agree that acts of
torture are regarded by customary international law as international crimes, independently
of the [UN Convention] against torture’,83 and held that ‘the prohibition of torture is part
of customary international law and it has become a peremptory norm (jus cogens)’.84 The
international community accepts the main elements of the definition of torture as contained
in Article 1(1) of the UN Convention against Torture,85 providing that
the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an
76
UNGA Res 51/210, 17 December 1996, UN Doc A/RES/51/210, operative clause 9.
77
See the initial ‘Draft Comprehensive Convention on International Terrorism’, Working document submitted
by India, 28 August 2000, UN Doc A/C.6/55/1.
78
M Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism Major Bones of
Contention’ (2006) 4 Journal of International Criminal Justice 1031, 1031–43.
79
UNGA Res 71/151, 20 December 2016, UN Doc A/RES/71/151.
80
See also Chapter 16, Section III(B), which deals with torture from a human rights law perspective.
81
eg Cassese (n 21) 134. See, however, Ambos (n 33) 245, holding that ‘it is doubtful whether the fact that
torture constitutes a dignity violation suffices to make it a true international crime’ and that ‘isolated
incidents of torture do not amount to true international crimes’.
82
Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force
28 February 1987) OAS Treaty Series No 67. See also the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February
1989) CETS No 126, which does not serve to outlaw the crime of torture, but relies on the prohibition of torture
contained in Art 3 ECHR to establish ‘a European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment’ (CPT), on which see Chapter 16, Section IX(C).
83
Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, para 97.
84
ibid, para 99.
85
ICTY, Trial Chamber, Prosecutor v Delalić et al, 16 November 1998, Case No IT-96-21-T, paras 455–74;
ICTY, Trial Chamber, Prosecutor v Furundzija, 10 December 1998, IT-95-17/1-T, para 257; Kunarac (n 44)
paras 483–97;
see Cassese (n 21) 132.
INDIVIDUAL CRIMINAL RESPONSIBILITY 753
official capacity. It does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
The different elements of the crime of torture deserve to be highlighted. First, it must
concern ‘severe’ pain or suffering.86 Second, the infliction of the suffering must be inten-
tional. Third, the UN Convention against Torture introduces a purpose requirement.
Even if torture can be committed not only for the purpose of obtaining information or a
confession, punishment, intimidation or coercion, but also ‘for any other purpose based
on discrimination of any kind’ – a fairly open-ended formula – an instrumental purpose
remains required, distinguishing ‘the phenomenon of torture from isolated sadism more
properly the concern of domestic law’.87 Lastly, the ‘participation of a de jure or de facto
state official’ is required.88 Note that while torture can constitute a crime of genocide,
crime against humanity or war crime, 89 the distinct international crime of torture does not
require the specific elements that attach to the respective core crimes of international law.90
I. Individual Criminal Responsibility

A. Modes of Liability
International crimes, apart from war crimes perhaps, are, unlike regular crimes, not normally
committed by just one person. They are collective crimes, in which often a large number of
individuals at multiple levels of responsibility are involved. In ICL, ‘the paradigmatic
offender is often the person who orders, masterminds, or takes part in a plan at a high
level’.91 The collective nature of international criminality does not do away with the need
to establish individualised guilt and responsibility. This explains why ICL has developed
rather intricate ‘modes of liability’. In the ICC Statute, for example, these modes of
liability are laid down in Article 25.
The basic premise of responsibility in ICL is that an individual’s criminal respon-
sibility can only be engaged if he or she is personally culpable of a crime; collective
punishment is not allowed.92 Obviously, those who commit a crime as a principal perpe-
trator or co-perpetrator can be punished. 93 But a host of other forms of participation can
also engage an individual’s criminal responsibility, such as planning (at the ad hoc tribu-
nals, not the ICC);94 ordering,95 instigating (at the ad hoc tribunals)96 or soliciting/inducing
86
See Chapter 16, Section IX(A)(i), n 257 on the ECtHR’s jurisprudence on the required degree of intensity.
See, however, Art 2 of the Inter-American Convention to Prevent and Punish Torture (n 82), which does not
require that the suffering be ‘severe’.
87
Cassese (n 21) 133.
88
ibid, 133. See also Art 3 of the Inter-American Convention to Prevent and Punish Torture (n 82).
89
Ambos (n 33) 245.
90
eg, the crime of torture may be committed in time of peace or in time of war; Kunarac (n 44) paras 488–97.
91
Cryer et al (n 22) 361.
92
Art 25(2) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute. See also ICTY, Appeals Chamber, Prosecutor
v Tadić, 15 July 1999, Case No IT-94-1-A, para 186.
93
Art 25(3)(a) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute.
94
Art 7 ICTY Statute; Art 6 ICTR Statute.
95
Art 25(3)(b) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute.
96
Art 7 ICTY Statute; Art 6 ICTR Statute.
(at the ICC);97 aiding and abetting;98 and in any other way contributing to a crime by a
group acting with a common purpose (at the ICC, not the ad hoc tribunals). 99 While, before
the ad hoc tribunals, the relevant modes of liability required that the crime was eventually
perpetrated, at the ICC it suffices that the crime was attempted. 100 This is linked with the
fact that, as opposed to the statutes of the ad hoc tribunals, Article 25 of the ICC Statute
also criminalises the attempt to commit a crime, provided that the perpetrator takes action
that commences the execution of a crime by means of a substantial step, but the crime does
not occur because of circumstances independent of his or her intentions.101
ICL does not criminalise conspiracy, ie an agreement to commit a crime regardless of
whether that crime materialises, with the exception of conspiracy to commit genocide (at
the ad hoc tribunals, not the ICC), 102 which is a distinct, inchoate offence rather than a
mode of liability.103 The same goes for direct and public incitement to commit genocide, 104
which is criminalised by the statutes of the ad hoc tribunals as well as the ICC.105
B. Joint Criminal Enterprise
The ICTY did not consider the modes of liability contained in its Statute to be sufficient to
capture the responsibility of notably those who planned or designed international crimes at
hierarchically higher levels. In 1999, in the Tadić case, the ICTY Appeals Chamber derived
the concept of ‘joint criminal enterprise’ (JCE) from the object and purpose of the ICTY
Statute and the Nuremberg case law, in order to be able to punish criminal leaders who did
not physically commit any crimes.106
The actus reus of a JCE consists of: (i) ‘a plurality of persons’, who ‘need not be organ-
ised in a military, political or administrative structure’; and who have (ii) ‘a common plan,
design or purpose which amounts to or involves the commission of a crime provided for in
the [ICTY] Statute’.107 It is not required that this plan, design or purpose has been ‘previ-
ously arranged or formulated’.108 Moreover, ‘[t]he common plan or purpose may
materialize extemporaneously and be inferred from the fact that a plurality of persons acts
in unison to put into effect a [JCE]’.109 Third, (iii) the accused must have participated in the
common plan or purpose. ‘This participation need not involve the commission of a specific
crime […], but may take the form of assistance in, or contribution to, the execution of the
common plan or
97
Art 25(3)(b) ICC Statute.
98
Art 25(3)(c) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute. ‘Aiding’ refers to practical assistance,
whereas ‘abetting’ refers to moral assistance. A suspect must knowingly provide a substantial contribution to the
commission of the crime before he or she can be held accountable as an aider or abettor.
99
Art 25(3)(d) ICC Statute.
100
Art 25(3)(b)–(d) ICC Statute.
101
Art 25(3)(f) ICC Statute.
102
Art 3(b) Genocide Convention; Art 4(3)(b) ICTY Statute; Art 2(3)(b) ICTR Statute. But see also US et al
v Göring et al (n 5) 447, finding conspiracy to commit aggression to be criminal.
103
See eg ICTY, Appeals Chamber, Prosecutor v Tolimir, 8 April 2015, Case No IT-05-88/2-A, para 582.
104
See eg ICTR, Appeals Chamber, Nahimana, Barayagwiza and Ngeze v Prosecutor, 28 November 2007,
Case No ICTR-99-52-A, para 678.
105
Art 25(3)(e) ICC Statute; Art 4 ICTY Statute; Art 2 ICTR Statute.
106
Tadić (n 92) paras 185–229.
107
ibid, para 227.
108
ibid.
109
ibid.
purpose’.110 The participation need not constitute a conditio sine qua non for the
execution of the plan or purpose. But, as the ICTY Appeals Chamber held in Brđanin:
‘although the contribution need not be necessary or substantial, it should at least be a
significant contribution to the crimes for which the accused is to be found
responsible’ (emphasis added).111 JCE may come in three categories: a basic (JCE I),
systematic (JCE II) and extended (JCE III) version. The basic category concerns a
form of co-perpetration, where all co-defendants, acting pursuant to a common
design, possess the same criminal intention, and one or more of them actually
perpetrates the crime.112 The systematic category, which is a variant of the basic
version, punishes participation in the design of an organised system to ill-treat
detainees and commit various crimes (the concentration camp scenario).113 The
extended category pertains to ‘a common design to pursue one course of conduct
where one of the perpetrators commits an act which, while outside the common
design, was nevertheless a natural and foreseeable consequence of the effecting of that
common
purpose’.114
While the actus reus is the same for all JCE categories, the mens rea differs according
to the category of JCE under consideration. 115 Still in Tadić, the ICTY Appeals Chamber
held that:
With regard to the first category, what is required is the intent to perpetrate a certain crime
(this being the shared intent on the part of all co-perpetrators). With regard to the second
category […], personal knowledge of the system of ill-treatment is required […], as well as
the intent to further this common concerted system of ill-treatment. With regard to the third
category, what is required is the intention to participate in and further the criminal activity or
the criminal purpose of a group and to contribute to the joint criminal enterprise or in any
event to the commission of a crime by the group. In addition, responsibility for a crime other
than the one agreed upon in the common plan arises only if, under the circumstances of the
case, (i) it was foreseeable that such a crime might be perpetrated by one or other members
of the group and (ii) the accused willingly took that risk.116
Every person who participates in a JCE is considered to be a principal perpetrator. Thus,

the JCE doctrine follows a subjective approach, which
moves the focus from the level of contribution to the commission of the offence as the
distinguishing criterion between principals and accessories, and places it instead on the state of
mind in which the contribution to the crime was made. As a result, only those who make their
contribution with the shared intent to commit the offence can be principals to the crime,
regardless of the level of their contribution to its commission.117
Perhaps not surprisingly, ‘the vague “elastic” nature of the doctrine has led to claims that it
is overbroad, thus reliant on prosecutorial discretion rather than law to keep it in check’.118
110
ibid; eg Stevanović (n 22) para 57: the accused needs to assist or contribute. Mere presence does not
suffice in and of itself for the accused to be considered part of a JCE.
111
ICTY, Appeals Chamber, Prosecutor v Brđanin, 3 April 2007, Case No IT-99-36-A, para 430.
112
Tadić (n 92) para 196.
113
ibid, para 202.
114
ibid, para 204.
115
ibid, para 228.
116
ibid, para 228.
117
ICC, Pre-Trial Chamber I, Prosecutor v Lubanga, Decision on the Confirmation of Charges, 29 January 2007,
Case No ICC-01/04-01/06, para 329.
118
According to some, the doctrine, and especially its extended version (JCE III),
constitutes ‘a violation of the basic principle that individuals should only be criminally
liable to the extent of their own culpability’ (see above, Section IV(A)).119 Again
others argue that the doctrine, including JCE III, ‘is firmly established in customary
international law’.120
C. Co-Perpetration by Control over the Crime
When faced with situations similar to the ones outlined as regards JCE, the ICC relies on
a different mode of liability. Article 25(3)(a) of the ICC Statute provides that a person is
criminally responsible if he or she ‘[c]ommits […] a crime, whether as an individual,
jointly with another or through another person, regardless of whether that other person is
criminally responsible’. Based on a reading of that provision in conjunction with
Article 25(3)
(d) of the ICC Statute,121 the Statute is considered to exclude the (subjective) JCE doctrine
developed by the ICTY.122 Neither does the ICC accept an objective approach, according
to which ‘only those who physically carry out one or more of the objective elements of the
offence can be considered principals to the crime’. 123 The ICC follows a third approach,
namely ‘co-perpetration by control over the crime’, which was originally developed by the
German scholar Claus Roxin.124 According to ICC Trial Chamber I:
The notion underpinning this third approach is that principals to a crime are not limited to those
who physically carry out the objective elements of the offence, but also include those who, in
spite of being removed from the scene of the crime, control or mastermind its commission
because they decide whether and how the offence will be committed.125
As is the case for JCE, co-perpetration by control over the crime requires the objective
element of an agreement or common plan. 126 This agreement or common plan must
include an ‘element of criminality’, but must not be specifically directed at the commis-
sion of a crime.127 It need not be previously arranged, but can arise contemporaneously,128
119
JD Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 JICJ 69, 71
and 76.
120
Cassese (n 21) 170.
121
Art 25(3)(d) ICC Statute holds criminally responsible the person who: ‘In any other way contributes to
the commission or attempted commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the
criminal activity or criminal purpose of the group, where such activity or purpose involves the commission
of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the
group to commit the crime’; see also above, Section IV(A), n 99.
122
Lubanga, Confirmation of Charges (n 117) paras 322–41; cp G Bitti, ‘Article 21 and the Hierarchy of
Sources of Law before the ICC’ in C Stahn, The Law and Practice of the International Criminal Court (Oxford,
OUP, 2015) 431.
123
Lubanga, Confirmation of Charges (n 117) para 328.
124
See notably C Roxin, ‘Crimes as Part of Organized Power Structures’ (2011) 9 JICJ 193.
125
126
ibid, para 343. ICC, Pre-Trial Chamber II, Prosecutor v Bemba, Decision Pursuant to Article 61(7)(a) and (b)
of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009,
Case No ICC-01/05-01/08, para 350.
127
128
ICC, Appeals Chamber, Prosecutor v Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo
against His Conviction, 1 December 2014, Case No ICC-01/04-01/06 A 5, para 445.
and must not be explicit, but ‘can be inferred from the subsequent concerted action of
the co-perpetrators’.129 In addition, each co-perpetrator must make an ‘essential contri-
bution […] resulting in the realisation of the objective elements of the crime’ (emphasis
added).130 In this respect, co-perpetration differs from JCE, which only requires a ‘signifi-
cant’ contribution (see above, Section IV(B)). Indeed, while for a JCE, it is not required
that the contribution of the accused constitutes a conditio sine qua non, for co-perpetration,
‘only those to whom essential tasks have been assigned – and who, consequently, have the
power to frustrate the commission of the crime by not performing their tasks – can be said
to have joint control over the crime’.131
With respect to the mens rea, the co-perpetrator must first fulfil the subjective elements
of the crime in question.132 Second, co-perpetrators: (i) must be mutually aware that
‘implementing the common plan will result in the fulfilment of the material elements of
the crimes’; and (ii) nevertheless purposefully ‘bring about the material elements of the
crimes’, or be ‘aware that in the ordinary course of events, the fulfilment of the material
elements will be a virtually certain consequence of their actions’. 133 Third, the co-
perpetrator must be aware of ‘the factual circumstances enabling him or her to jointly
control the crime’.134
D. Command Responsibility
A last mode of liability that is characteristic for ICL and largely unknown to domestic
law135 concerns command or superior responsibility. 136 Again, because the commission
of international crimes almost always involves the machinery of the State or at least an
organised entity, the need was felt to hold military commanders as well as civilian
superiors responsible even if they did not directly commit any crimes. What characterises
command responsibility is that it concerns a form of omission liability attached to a failure
to comply with particular duties that rest upon commanders or superiors.
Commanders and superiors are criminally responsible for crimes committed by forces
under their command, respectively authority, if they fail to prevent or punish these crimes.
Accordingly, a first requirement is that there is a ‘relationship of subordination’ between
the
129
ibid; Lubanga, Confirmation of Charges (n 117) para 345.
130
Lubanga, Confirmation of Charges (n 117) para 346; Bemba (n 126) para 350.
131
Lubanga, Confirmation of Charges (n 117) para 347; Lubanga, Appeal (n 128) para 469.
132
133
Bemba (n 126) para 370; Lubanga, Appeal (n 128) paras 447–51.
134
Lubanga, Confirmation of Charges (n 117) para 366; Bemba (n 126) para 371.
135
However, it is included in Section 4 of the German Code of Crimes against International Law, (2002) 42
Bundesgesetzblatt, Part I, 2254 and Art 9(1) of the Dutch Act of 19 June 2003 containing rules concerning serious
violations of international humanitarian law (International Crimes Act), (2003) Staasblad 270. For an applica-
tion, see respectively Federal Court of Justice (DE), IM, Decision on Pretrial Detention, 17 June 2010, Case No
AK 3/10; District Court of The Hague (NL), Public Prosecutor v F, 25 June 2007, NL:GHSGR:2009:BK8758.
136
See Art 28 ICC Statute; Art 7(3) ICTY Statute; Art 6(3) ICTR Statute. It is contested wheter command
responsibility constitutes a mode of liability or a crime per se; cp Cassese (n 21) 191–92. Arguably, it has a ‘sui
generis, uniqe nature’; ibid, 191. It is a ‘hybrid form of liability, combining aspects of a mode of liability and a
separate offence liability’; E van Sliedregt, Individual Criminal Responsibility in International Law (Oxford,
OUP, 2012) 196. See further C Meloni, ‘Command Responsibility: Mode of Liability for the Crimes of
Subordinates or Separate Offence of the Superior? (2007) 5 JICJ 619.
commander or superior and the subordinate(s) concerned – be it de jure or de facto – in the

context of which the former exercises ‘effective control’ over the latter.137
Second, commanders or superiors can only be held criminally responsible if they had
‘actual or contructive knowledge’ – ie if they knew or should have known – that their
forces were committing or were about to commit such crimes. 138 For the ICTY, construc-
tive knowledge means ‘reason to know’, meaning that a commander or superior would be
criminally responsible ‘only if information was available to him which would have put him
on notice of offences committed by subordinates’.139 The ICC Statute requires that the
military commander ‘should have known, owing to the circumstances at the time’.140 This
is interpreted as a ‘form of negligence’, 141 requiring ‘more of an active duty on the part of
the superior to take the necessary measures to secure knowledge of the conduct of his
troops and to inquire, regardless of the availability of information at the time on [sic] the
commission of the crime’.142 In the case of civilian superiors, on the other hand, the
Statute requires that they ‘either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing or about to commit such
crimes’.143
Third and lastly, to be liable for the crimes concerned, the commander or superior must
have ‘failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission’.144 The duties to prevent and repress or punish are
distinct; a failure to prevent certain crimes cannot be cured by the subsequent punishment
of these crimes.145 What is expected from the commander or superior is ‘inextricably
linked to the facts of each particular situation’ 146 and depends on ‘the degree of effective
control he wielded over his subordinates’.147
E. Defences: Justifications and Excuses
In a limited number of situations, individuals can escape criminal responsibility by invok-

ing a defence, be it a justification or excuse. Criminal conduct may be ‘justified’ because it
was preferable to even worse alternatives, or it can be ‘excused’ when ‘it was produced by
an impairment of a person’s autonomy to such a degree as to negate [its]
blameworthiness’.148
137
ICTY, Appeals Chamber, Prosecutor v Delalić et al, 20 February 2001, Case No IT-96-21-A, paras 197–98;
Bemba (n 126) paras 411–15. For factors that are indicative of effective control, see Bemba (n 126) para 417.
See further Cassese (n 21) 187–89.
138
Cassese (n 21) 189.
139
Delalić (n 137) para 241.
140
Art 28(2) ICC Statute.
141
Bemba (n 126) para 429.
142
ibid, para 433. See Cassese (n 21) 190.
143
Art 28(b)(i) ICC Statute.
144
ibid, Art 28(a)(ii) and (b)(iii), which add ‘[…] or to submit the matter to the competent authorities for investi-
gation and prosecution’. Art 7 ICTY Statute and Art 6 ICTR Statute contain a nearly identical provision, but do
not explicitly include the latter option, which would nevertheless normally also under the ICTY and ICTR Statute
discharge the commander or superior of his or her duties.
145
ICTY, Trial Chamber, Prosecutor v Blaškić, 3 March 2000, Case No IT-95-14-T, para 336.
146
Delalić (n 137) para 394.
147
ICTY, Appeals Chamber, Prosecutor v Blaškić, 29 July 2004, Case No IT-95-14-A, para 72.
148
Cassese (n 21) 210.
Article 31(1) of the ICC Statute lists one justification: self-defence. 149 An action taken
in self-defence which is normally criminal is not unlawful if: (i) it responds to an imminent
or actual unlawful use of force against the person acting in self-defence or another person;
(i) there is no alternative way to stop or prevent that use of force; (iii) the person acting
in self-defence has not caused the use of force; and (iv) the action taken in self-defence is
proportionate to the use of force to which it reacts.150 The ICC Statute controversially adds
the possibility to act in self-defence in response to war crimes against ‘property which is
essential for the survival of the person or another person or property which is essential for
accomplishing a military mission’.151
Article 31(1) also lists three excuses: a mental disease or defect,152 a state of
intoxication153 and duress.154 As to the last excuse, it must concern duress
resulting from a threat of imminent death or of continuing or imminent serious bodily harm
against that person or another person, and the person [must act] necessarily and reasonably to
avoid this threat, provided that the person does not intend to cause a greater harm than the one
sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person’s control.
As illustrated by the Erdemović case at the ICTY, duress is not easily accepted. Erdemović
was a member of the Bosnian Serb Army who, as a member of an execution squad, partici-
pated in the shooting of unarmed Bosnian Muslims. He argued that when he had refused
to shoot the civilians, his commander had threatened to kill him as well. Nevertheless, the
ICTY Appeals Chamber found ‘that duress does not afford a complete defence to a soldier
charged with a crime against humanity and/or a war crime involving the killing of innocent
human beings’.155
Further, criminal responsibility is excused before the ICC in the exceptional case that a
mistake of fact (eg executing a person assuming that he or she had been duly convicted) 156
or mistake of law negates the mental element required by the crime concerned. 157 ‘Obedi-
ence to superior orders’ can be considered to constitute a particular type of mistake of
law which may excuse criminal responsibility in exceptional circumstances. 158 Article 33
of the ICC Statute provides that the fact that a crime has been committed pursuant to an
order by a superior ‘shall not relieve that person of criminal responsibility unless:
(a) [t]he person was under a legal obligation to obey orders’; (b) ‘did not know that the
149
Art 31(1)(c).
150
Cassese (n 21) 211.
151
See ibid, 212–13, arguing that the extension to acts of self-defence against property is problematic and that it
broadens the customary international law definition of self-defence.
152
Art 31(1)(a) ICC Statute.
153
ibid, Art 31(1)(b). This ground cannot be invoked where ‘the person has become voluntarily intoxicated
under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or
she was likely to engage in conduct constituting a crime within the jurisdiction of the Court’.
154
ibid, Art 31(1)(d).
155
ICTY, Appeals Chamber, Prosecutor v Erdemović, 7 October 1997, Case No IT-96-22-A, para 19. Note that
two of the five judges on the bench dissented. See Cassese (n 21) 218.
156
157
ibid, Art 32(2).
158
cp Cassese (n 21) 231.
order was unlawful; and (c) [t]he order was not manifestly unlawful’. However, ‘orders
to commit genocide or crimes against humanity are manifestly unlawful’.159 Thus, the
defence of superior orders can never relieve the subordinate of responsibility for such
crimes, but can exceptionally do so for war crimes. This defence prevents
insubordination and avoids soldiers having to decide on controversial legal questions.
Nevertheless, it is excluded by the statutes of the ICTY and ICTR,160 appears to be at
odds with customary international law and has rarely been accepted in case law.161
II. International Criminal Tribunals

A. Establishment and Design
International criminal tribunals were only established after the end of the Second World
War. Typically, they were established ad hoc, ie in relation to specific events that are
circumscribed in time and place. However, the ICC has been established as a permanent
international tribunal with a quasi-universal remit.
The first international criminal tribunals were the International Military Tribunal (IMT)
at Nuremberg,162 and the International Military Tribunal for the Far East (IMTFE) at
Tokyo,163 which were established in the immediate aftermath of World War II. The IMT
brought to justice the major war criminals belonging to Nazi Germany,164 12 of whom
were eventually executed. The IMTFE prosecuted the major Japanese war criminals, 165
seven of whom were executed. There is no doubt that these prosecutions represented
victor’s justice, as the tribunals did not have jurisdiction over crimes committed by the
Allied Powers and were composed of representatives of the war’s victorious nations.
Nevertheless, they represented a watershed: the international community had finally
signalled that atrocities would no longer go unpunished. The most famous holding of the
IMT, which has become a ‘foun- dational statement’ in ICL,166 was probably the following:
Crimes against international law are committed by men, not abstract entities, and only by
punishing individuals who commit such crimes can the provisions of international law be
enforced. […] [I]ndividuals have international duties which transcend the national
obligations of obedience imposed by the individual state.167
In 1950, the legal legacy of the tribunals was laid down in the ILC’s ‘Principles of Interna-
tional Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of
the Tribunal’.168
159
160
Art 7(4) ICTY Statute; Art 6(4) ICTR Statute.
161
See Cassese (n 21) 231–37.
162
See above (n 35).
163
See the Charter of the International Military Tribunal for the Far East (19 January 1946) 82 UNTS 284
(IMTFE Charter).
164
See Arts 1 and 6 Nuremberg Charter (n 35), referring to ‘the major war criminals of the European Axis’.
However, no war criminals belonging to the Italian Fascist regime appeared before the IMT.
165
See Arts 1 and 5 IMTFE Charter (n 163), respectively referring to ‘the major war criminals in the Far East’ and
‘Far Eastern war criminals’.
166
167
US et al v Göring et al (n 5) 447.
168
ILC, ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal’ (1950) YILC, Vol II, 374–78.
INTERNATIONAL CRIMINAL TRIBUNALS 761
While East-West tensions precluded the establishment of international criminal tribu-

nals during the Cold War, the Nuremberg paradigm paved the way for the establishment,
in the 1990s, of two ad hoc tribunals to prosecute the perpetrators of international crimes
committed in Yugoslavia (ICTY) and Rwanda (ICTR), as well as the ICC. The ICTY and
ICTR were established on the basis of resolutions of the UN Security Council, 169 a process
the legality of which was confirmed by the ICTY in the Tadić case.170 After more than
20 years since their establishment, the ICTR closed on 31 December 2015 and the ICTY
on 31 December 2017. In 2010, ‘in view of the substantially reduced nature of the resid-
ual functions’ of both tribunals, the UN Security Council established the United Nations
Mechanism for International Criminal Tribunals (MICT), ‘a small, temporary and efficient
structure’, which continues ‘the jurisdiction, rights and obligations and essential func-
tions of the ICTY and the ICTR’ and will finish their work. 171 As opposed to the ICTY
and ICTR, the ICC came into being on the basis of a multilateral treaty, the Rome Stat-
ute of the International Criminal Court (ICC Statute), 172 which, in October 2018, counts
123 State Parties.173
The EU and its Member States were particularly instrumental in the establishment of
the ICC Statute,174 and all EU Member States have ratified it. Since its establishment,
the EU and its Member States have been the staunchest supporters of the Court.175 In
2011, the Council adopted a decision on the ICC. 176 This decision aims to: (i) advance
universal support for the ICC by promoting the widest possible participation in its Statute;
(ii) preserve the integrity of the Court; (iii) support its independence and its effective and
efficient functioning; (iv) enhance cooperation with the Court; and (v) support the imple-
mentation of the principle of complementarity (on which see below, Section V(C)(i)).177
The implementation of the decision is furthered by the Council’s Action Plan of 2011.178 In
particular, the EU aims to encourage States which have not yet ratified the ICC Stat- ute
to do so, and to provide technical and/or financial assistance to those States that may
169
See respectively UNSC Res 827 (n 14) and UNSC Res 955 (n 14).
170
Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (n 51) paras 28–48.
171
UNSC Res 1966, 22 December 2010, UN Doc S/RES/1966, preambular para 7 and operative clauses 1 and 4.
172
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force on 1 July 2002)
2187 UNTS 90.
173
Note that the last change in the number of State Parties to the ICC Statute was caused by the withdrawal of
Burundi (notified 27 October 2016, effective as of 27 October 2017) in a context of troubled relations between
the ICC and many African countries. While South Africa and Gambia had also formally notified the UN
Secretary General that they would withdraw from the ICC Statute on respectively 19 October 2016 and 10
November 2016, they withdrew these notifications on 7 March 2017 and 10 February 2017 respectively. The
Philippines has notified the UNSG that it will withdraw from the ICC Statute on 17 March 2018 – a notification
which, when it becomes effective on 17 March 2019, will reduce the number of State Parties to the ICC Statute to
122. See UN Treaty Collection, ‘Rome Statute of the International Criminal Court’, status as at 1 October 2018,
treaties.un.org/Pages/ ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XVIII-
10&chapter=18&lang=en.
174
See further J Wouters and S Basu, ‘The Creation of a Global Criminal Justice System: The European Union
and the International Criminal Court’ in C Ryngaert (ed), The Effectiveness of International Criminal Justice
(Antwerp, Intersentia, 2009) 117–42.
175
O Bekou, ‘Mainstreaming Support for the ICC in the EU’s Policies’, Study for the Directorate-General for
External Policies of the Union of the European Parliament, March 2014, EXPO/B/DROI/2013/28, 8. Further,
see eg M Groenleer, ‘The United States, the European Union, and the International Criminal Court: Similar
Values, Different Interests?’ (2015) 13 I•CON 923.
176
Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing
Common Position 2003/444/CFSP [2011] OJ L76/56.
177
ibid, Art 1(2).
178
Council of the EU, ‘Action Plan to follow-up on the Decision on the International Criminal Court’, 12
July 2011, 12080/11, Annex.
be willing but are unable to do so. 179 Through their 2006 Agreement on Cooperation and
Assistance, the EU and the ICC have mutually committed themselves to cooperate closely
and consult each other on matters of mutual interest. 180 To further the implementation of
the principle of complementarity, the European Commission and the High Representative
have jointly adopted a ‘Complementarity Toolkit’, the aim of which is to provide practical
guidance to EU officials, Union Delegations and Member States on how to support and
reinforce justice systems in third countries so that they can fully exercise their jurisdiction
over crimes that fall within the purview of the ICC Statute.181
The ICC, ICTY and ICTR are all truly international tribunals, which apply international
(criminal) law and are composed of international judges and prosecutors. In the early
2000s, however, to create more local ownership of accountability efforts, as well as to cut
costs, the international community pressed for the establishment of ‘mixed’, ‘hybrid’ or
‘internation- alised’ tribunals. These would apply a mixture of international and domestic
criminal law, be based in the country were the crimes were committed, 182 would be
composed of international and domestic prosecutors and judges, and could entrench the
rule of law locally. Thus, on the basis of cooperation between the UN and the State
concerned, the STL,183 the SCSL,184 the ECCC185 and the Special Panels for East Timor186
were established.
Sometimes, regional organisations play a primary role in the establishment of hybrid
tribunals. Thus, on the basis of an agreement concluded between the African Union and
Senegal,187 Extraordinary African Chambers were established to try the former Chadian
dictator Hissène Habré, after the ICJ ruled that Senegal had violated the UN Convention
179
ibid, 7–8.
180
Agreement between the International Criminal Court and the European Union on Cooperation and Assistance
(adopted 10 April 2006, entered into force 1 May 2006) [2006] OJ L115/50, Art 4. See further G Hafner,
‘Selected Legal and Policy Implications Arising from the EU–ICC Agreement of 2006’ in FANJ Goudappel and
EMH Hirsch Ballin (eds), Democracy and Rule of Law in the European Union (The Hague, TMC Asser, 2016)
203–24. 181 EC and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint Staff Working
Document on Advancing the Principle of Complementarity: Toolkit for Briding the Gap between International
and National Justice’, 31 January 2013, SWD(2013) 26 final, 2. Further, see eg A Antoniadis and O Bekou, ‘The
European Union and the International Criminal Court: An Awkward Symbiosis in Interesting Times’ (2007) 7
International Criminal Law Review 621.
182
The ICTY was and the ICC is based in The Hague (the Netherlands); the ICTR in Arusha (Tanzania).
183
See the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special
Tribunal for Lebanon (adopted 22 January 2007 (Beirut) – 6 February 2007 (New York), entered into force
10 June 2007) 2461 UNTS 257. As eventually the Lebanese parliament did not convene to vote on the ratifica-
tion of the Agreement, it was UNSC Res 1757, 30 May 2007, UN Doc S/RES/1757, which formally made the
Agreement enter into force and established the STL, rather than the Agreement itself.
184
See the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of
a Special Court for Sierra Leone (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 137.
185
See the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution
of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001, Preah Reach Kram
No NS/RKM/0801/12, as amended on 27 October 2004, Preah Reach Kram No NS/RKM/1004/006. The law was
endorsed by the Agreement between the United Nations and the Royal Government of Cambodia concerning the
Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea (adopted
6 June 2003, entered into force 29 April 2005) 2329 UNTS 117.
186
In full the District Court of Dili Special Panels of Serious Crimes (SPSC). The SPSC were established by
the UN Transitional Administration in East Timor (UNTAET) by Regulation No 2000/15 on the Establishment
of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UNTAET/REG/2000/15; the
UNTAET was in turn mandated by UNSC Res 1272, 25 October 1999, UN Doc S/RES/1272.
187
Agreement between the Government of the Republic of Senegal and the African Union on the
Establishment of Extraordinary African Chambers within the Senegalese Judicial System (adopted 22
August 2012, entered into force 30 January 2013) 52 ILM 1024.
against Torture by failing to prosecute Habré, who had found refuge in Senegal. 188 Pursu-
ant to an agreement between the EU and the Kosovo authorities,189 the Kosovo Specialist
Chambers and Specialist Prosecutor’s Office have been established.190 The Chambers and
Prosecutor have jurisdiction over crimes against humanity, war crimes, and a number of
other crimes under Kosovo law committed in Kosovo from 1 January 1998 to 31 December
2000, ie during the Kosovo war.191
All these tribunals receive substantial financial backing from the EU and its
Member States, either via contributions to the UN budget in the case of the ad hoc
tribunals, via assessed contributions to the ICC, or through voluntary contributions to
the hybrid tribunals.192 In spite of European generosity, the funding of international
tribunals remains a continuing challenge.
B. Jurisdiction
The statutes of the tribunals normally begin by delimiting the tribunals’ jurisdiction, which
is closely related to their mandate. For instance, the ICTY has ‘the power to prosecute
persons responsible for serious violations of international humanitarian law committed in
the territory of the former Yugoslavia since 1991’.193 The ICTR, in turn, has the power to
prosecute IHL violations committed in the territory of Rwanda and by Rwandan citizens
in the territory of neighbouring States between 1 January 1994 and 31 December 1994.194
The ICC’s jurisdiction has been defined somewhat more carefully. In principle, tempo-
rally, the ICC only has prospective jurisdiction, ie jurisdiction over crimes committed after
the entry into force of the Statute for the State Party in question;195 the earliest from 1 July
2002 onwards.196 As to the geographical and personal scope of its jurisdiction, it should be
recalled that the ICC was established by a treaty. Thus, it may only exercise jurisdiction
over crimes committed on the territory of a State Party and/or by a national of a State
Party, unless the UN Security Council has referred a situation to the Court. 197 States may
also accept the jurisdiction of the Court on an ad hoc basis for a period that they were not
yet a
188
See Questions relating to the Obligation to Prosecute or Extradite (n 83); see also Chapter 9, Section IV(B)
(v)(b), on the exercise of universal jurisdiction and Chapter 16, Section III(B), on the UN Convention against
Torture. 189 See Assembly of Republic of Kosovo, Law No 04/L-274 on Ratification of the International
Agreement between the Republic of Kosovo and the European Union on the European Union Rule of Law
Mission in Kosovo, 23 April 2014, kuvendikosoves.org/common/docs/ligjet/04-L-274%20a.pdf.
190
See Assembly of Republic of Kosovo, Law No 05/L-053 on Specialist Chambers and Specialist Prosecutor’s
Office, 3 August 2015, kuvendikosoves.org/common/docs/ligjet/05-L-053%20a.pdf.
191
ibid, Arts 6–8 and 13–15.
192
The EU Member States fund approximately 38% of the UN’s regular budget; Permanent Delegation of the
European Union to the UN Office and other International Organizations in Geneva, ‘The EU and the UN’,
eeas.europa.eu/delegations/un_geneva/eu_un_geneva/index_en.htm. The EU also provides for over 60% of the
ICC’s funding, see African Business Magazine, ‘Who Pays for the ICC?’, 1 October 2011, africanbusinessmaga-
zine.com/special-reports/who-pays-for-the-icc. By way of example, the EU has since 2007 contributed more than
US$15 million to the ECCC, complemented by bilateral contributions from EU Member States totalling more
than €36 million; Delegation of the European Union to Cambodia, ‘Cambodia and the EU’, 11 May 2016, eeas.
europa.eu/delegations/cambodia_en/1006/Cambodia%20and%20the%20EU.
193
Art 1 ICTY Statute.
194
Art 1 ICTR Statute.
195
196
ie the date the ICC Statute (internationally) entered into force (see above (n 172)); ibid, Art 11(1).
197
ibid, Art 12(2).
party to the Statute, or without becoming a party to the Statute at all.198 In the case of an ad
hoc declaration, the State concerned may thus grant the ICC retroactive jurisdiction (ie
over crimes committed before it became a Party to the Statute),199 be it that it may not go
back further than 1 July 2002.200 The international crimes that fall within the material
jurisdiction of the ICC (and that of the ICTY and ICTR) have been discussed above
(Section III). There are three ways of bringing a ‘situation’ before the ICC: its jurisdiction
can be triggered through (i) a State Party referral, (ii) a proprio motu investigation by
the Prosecutor, or (iii) a referral by the UN Security Council.201 In October 2018, eleven
situations were officially under investigation by the Office of the Prosecutor (OTP),202 for
which purposes all three trigger mechanisms had been used.203 It concerns situations ‘in
which one or more crimes within the jurisdiction of the Court appear to have been
committed’.204 The notion ‘situation’ is not defined in the ICC Statute, but refers to ‘a
description of facts, defined by space and time, which circumscribe the prevailing
circumstances at the time’ (ie the conflict scenario), establishing the broader context in
which the crimes have been committed205 and from which one or more cases may
206
spring. Prosecutions thus proceed in stages that ‘begin with a “situation” and end with a
concrete “case”, where one or more suspects have been identified for the purpose of
prosecution’.207 In the framework of the situations currently
under investigation before the ICC, 26 cases have been brought before the Court.208
C. Bars to the Exercise of Jurisdiction
i. Admissibility
Even where the jurisdiction of the ICC over a situation has been triggered, a specific case
will only be held admissible when there have not been or are no relevant national investi-
gations or prosecutions, and where the State which has jurisdiction over it ‘is unwilling or
unable genuinely to carry out the investigation or prosecution’. 209 This rule is known as the
‘complementarity principle’, which aims to respect national sovereignty and ensures that
international criminal justice only becomes operational as a stopgap measure in case of
198
ibid, Art 12(3).
199
WA Schabas and G Pecorella, ‘Article 12: Preconditions to the Exercise of Jurisdiction’ in Triffterer and
Ambos (n 54) 686–87.
200
201
ibid, Art 13.
202
Burundi, Central African Republic (I and II), Côte d’Ivoire, Darfur (Sudan), Democratic Republic of the
Congo, Georgia, Kenya, Libya, Mali and Uganda. See ICC, ‘Situations under Invstigation’, icc-cpi.int/Pages/
Situations.aspx.
203
Four State Parties to the ICC Statute – Uganda, the Democratic Republic of the Congo, the Central African
Republic (twice) and Mali – have referred situations occurring on their territory to the Court. The situations in
Darfur (Sudan) and Libya, both concerning non-States Parties, have been referred to the Prosecutor by the UNSC.
The Prosecutor has been granted authorisation to open an investigation proprio motu into the situation in Kenya,
Côte d’Ivoire and South Ossetia (Georgia); ICC, ‘Situations under Investigation’, icc-cpi.int/pages/situation.aspx.
204
See Arts 13–14 ICC Statute.
205
A Marchesi and E Chaitidou, ‘Article 14: Referral of a Situation by a State Party’ in Triffterer and
Ambos (n 54) 716–17.
206
WA Schabas, ‘Selecting Situations and Cases’ in Stahn (n 122) 367.
207
ibid, citing ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, Situation in the Republic of Kenya,
Case No ICC-01/09-19-Corr, 31 March 2010, para 41.
208
ICC, ‘Cases’, icc-cpi.int/Pages/cases.aspx.
209
Art 17(1)(a)–(b) ICC Statute.
investigative and/or prosecutorial failures by States. This represents a departure from the
model of the ad hoc tribunals, which was based on the primacy of the tribunals vis-à-vis
national courts.210 Still, also in the waning days of those tribunals, complementarity has
played its role: in order to complete their work on time, a number of cases pending before
the ICTY and ICTR were referred back to the national level for prosecution and trial. 211
The first isssue of admissibility is an ‘empirical’ one, and involves a determination of
whether relevant investigations or prosecutions have been or are being conducted.212 If
there are no national proceedings, this domestic inactivity renders the case admissible and
no question of unwillingness or inability arises. 213 This assessment must be based on the
facts as they exist at the time of the examination and not on hypothetical proceedings. 214
While, ‘the taking of steps directed at ascertaining whether [the suspect is] responsible for
that conduct’ is sufficient, ‘the mere preparedness to take such steps or the investigation of
other suspects is not sufficient’.215 Thus, the proceedings must concern the same person
and substantially the same conduct, meaning that ‘the case that the State is investigating
suffi- ciently mirrors the one that the Prosecutor is investigating’.216
Only if there are relevant proceedings, it must be assessed whether ‘the State is
unwilling or unable genuinely to carry out the investigation or prosecution’. 217 Article
17(2) of the ICC Statute establishes how to determine unwillingness according to three
criteria:
(a) The proceedings were or are being undertaken or the national decision was made for the
purpose of shielding the person concerned from criminal responsibility […];
(b) There has been an unjustified delay in the proceedings which in the circumstances is incon-
sistent with an intent to bring the person concerned to justice; [or]
(c) The proceedings were not or are not being conducted independently or impartially, and they
were or are being conducted in a manner which, in the circumstances, is inconsistent with an
intent to bring the person concerned to justice.
According to the ICC Appeals Chamber, the primary purpose of the unwillingness test is
to avoid sham trials that allow the accused to evade justice.218 Considering that ‘the Court
210
Art 9(2) ICTY Statute; Art 8(2) ICTR Statute.
211
The legal basis for these referrals is Rule 11bis of respectively ICTY, ‘Rules of Procedure and Evidence’,
11 February 1994, last amended 8 July 2015, IT/32/Rev.50; and ICTR, ‘Rules of Procedure and Evidence’, 29
June 1995, last amended 13 May 2015, unictr.unmict.org/sites/unictr.org/files/legal-library/150513-rpe-en-fr.pdf.
For the first referral, see ICTR, Prosecutor v Uwinkindi, Decision on Prosecutor’s Request for Referral to the
Republic of Rwanda, 28 June 2011, Case No ICTR-2001-75-R11bis.
212
ICC, Appeals Chamber, Prosecutor v Katanga and Ngudjolo Chui, Judgment on the Appeal of Mr Germain
Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case,
25 September 2009, Case No ICC-01/04-01/07 OA 8, para 78; ICC, OTP, ‘Policy Paper on Preliminary
Examinations’, November 2013, legal-tools.org/doc/acb906/pdf, para 47. Note that Art 17(c) of the ICC Statute
provides that if the person has already been tried for the conduct which is the subject of the complaint, a trial by
the ICC is normally not permitted due to the ne bis in idem principle and will make the case inadmissible, except
for the limited exceptions set out in Art 20 ICC Statute.
213
Katanga and Ngudjolo Chui (n 212) para 78; OTP (n 212) para 47.
214
OTP (n 212) para 47.
215
ICC, Appeals Chamber, Prosecutor v Muthaura, Kenyatta and Ali, Judgment on the Appeal of the Republic
of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by
the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’,
30 August 2011, Case No ICC-01/09-02/11-274, paras 1 and 40.
216
ICC, Appeals Chamber, Prosecutor v Saif Gaddafu and Al-Senussi, Judgment on the Appeal of Libya against
the Decision of Pre-Trial Chamber I of 31 May 2013 Entitled ‘Decision on the Admissibility of the Case against
Saif Al-Islam Gaddafi’, 21 May 2014, Case No ICC-01/11-01/11 OA 4, para 73.
217
Art 17(a) ICC Statute.
218
ICC, Appeals Chamber, Prosecutor v Gaddafi and Al-Senussi, Judgment on the Appeal of Mr Abdullah Al-
Senussi against the Decision of Pre-Trial Chamber I of 11 October 2013 Entitled ‘Decision on the Admissibility
was not established to be an international court of human rights, sitting in judgment

over domestic legal systems to ensure that they are compliant with international
standards of human rights’,219 this test ‘is not one that involves an assessment of
whether the due process rights of a suspect have been breached per se’.220 Still, there
may be situations where ‘violations of the rights of the suspect are so egregious that
the proceedings can no longer be regarded as being capable of providing any genuine
form of justice’.221
Article 17(3) provides that, to determine inability,
the Court shall consider whether, due to a total or substantial collapse or unavailability of its
national judicial system, the State is unable to obtain the accused or the necessary evidence and
testimony or otherwise unable to carry out its proceedings.
Thus, in the Gaddafi case, Pre-Trial Chamber I found that Libya faced ‘substantial difficul-
ties in exercising its judicial powers fully across the entire territory’ and that ‘its national
system [could not] yet be applied in full in areas or aspects relevant to the case’, thus being
‘unavailable’.222 The Chamber set forth how Libya was unable to find Mr Gaddafi and
obtain the necessary testimony, as well as how it was otherwise unable to carry out the
proceedings against him, referring to the failing attempts to secure legal representation for
Mr Gaddafi.223
Lastly, to be admissible before the ICC, a case must be of sufficient ‘gravity’.224
Accord- ingly, ‘the fact that a case addresses one of the most serious crimes for the
international community as a whole is not sufficient for it to be admissible before the
Court’.225 The gravity of a case should not only be assessed from a quantitative, but also
from a qualita- tive perspective.226 Relevant factors include ‘the scale, nature and manner
of commission of the alleged crimes, their impact on victims, and the existence of any
aggravating circumstances’.227
ii. Immunities
The international criminal tribunals that have so far been established only have jurisdic-
tion over natural persons,228 and not over entities such as armed groups, corporations229
of the Case against Abdullah Al-Senussi’, 24 July 2014, Case No ICC-01/11-01/11 OA 6, paras 2, 218, 222
and 224.
219
ibid, para 219.
220
ibid, para 2. See also paras 219–28.
221
ibid, para 3. See also para 230.
222
ICC, Pre-Trial Chamber I, Prosecutor v Gaddafi and Al-Senussi, Decision on the Admissibility of the Case
against Saif Al-Islam Gaddafi, 31 May 2013, Case No ICC-01/11-01/11, para 205.
223
ibid, paras 206–14.
224
Art 17(1)(d) ICC Statute.
225
ICC, Pre-Trial Chamber I, Situation in the Democratic Republic of Congo, Decision on the Prosecutor’s
Application for Warrants of Arrests, Article 58, 10 February 2016, Case No ICC-01/04-01/07, para 42.
226
ICC, Pre-Trial Chamber I, Prosecutor v Abu Garda, Decision on the Confirmation of Charges, 8 February
2010, Case No ICC-02/05-02/09, para 31.
227
ICC, Pre-Trial Chamber II, Muthaura, Kenyatta and Ali, Decision on the Confinnation of Charges Pursuant
to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, Case No ICC-01/09-02/11, para 50.
228
Art 25 ICC Statute.
229
Note, however, that according to Art 46C, entitled ‘Corporate Criminal Liability’, of the Protocol on
Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted
or States.230 However, the absence of international jurisdiction over such entities need not
mean thatno criminal responsibility can be engaged. The natural persons who are
responsible for the crimes committed by armed groups or corporations over whom the
tribunals have jurisdiction can be prosecuted. Also, State officials are not allowed to hide
behind their official capacity: unlike domestic courts, the tribunals do not recognise
immunities.
Thus, Article 27 of the ICC Statute provides that (1) the ‘Statute shall apply equally
to all persons without any distinction based on official capacity’ (referring to immunities
ratione materiae); and that (2) ‘[i]mmunities or special procedural rules which may attach
to the official capacity of a person […] shall not bar the Court from exercising its
jurisdiction over such a person’ (referring to immunities ratione personae).231 However, the
irrelevance of official capacity only pertains to the ICC’s adjudicatory jurisdiction (ie
where an individual is before the ICC), not its executive jurisdiction (eg where the ICC
issues an arrest warrant in view of bringing the individual before the Court). As regards its
executive jurisdiction, reference needs to be made to Article 98(1) of the ICC Statute,
which provides that the ICC
may not proceed with a request for surrender or assistance which would require the requested
State to act inconsistently with its obligations under international law with respect to the
State or diplomatic immunity of a person or property of a third State, unless the Court can
first obtain the cooperation of that third State for the waiver of the immunity.232
This provision concerns a ‘triangular relation’: on the one hand, it concerns the vertical rela-
tion between the ICC and the requested State Party; on the other, it relates to the horizontal
relation between the requested State Party and a ‘third State’. 233 Irrespective of whether the
notion ‘third State’ refers to ‘a State other than the requested State’ (including State Parties
to the ICC Statute) or only to ‘a non-State Party’, 234 in as much as it concerns a State that
is party to the ICC Statute, that State is considered to have waived the immunity of its offi-
cials by accepting Article 27 of the Statute and is under an obligation to cooperate with the
Court.235 Accordingly, and irrespective of whether the request concerning one of its
officials is addressed to that State itself or – as in the scenario of Article 98 – a different
State, that State must comply with any request for surrender or assistance.236
If the request concerns an official of a third State that is not a party to the ICC Statute,
that State has not accepted Article 27 of the ICC Statute, neither is it under an obligation
27 June 2014, not yet entered into force), the future African Court of Justice and Human and Peoples’ Rights
‘shall have jurisdiction over legal persons, with the exception of States’. On this Court, see Chapter 16, Section
XI(B)(ii). 230 In an earlier draft of its ASR, the ILC had included the notion ‘State crime’ in Art 19; see ILC,
Report of the Commission to the General Assembly on the work of its forty-eighth session (6 May–26 July
1996), UN Doc A/51/10, (1996) YILC, Vol II, Part Two, 60.
231
See also Art 7(2) ICTY Statute; Art 6(2) ICTR Statute. On immunities more generally, see Chapter 11. On
this interpretation of Art 27 ICC Statute, see eg O Triffterer and C Burchard, ‘Article 27: Irrelevance of Official
Capacity’ in Triffterer and Ambos (n 54) 1040.
232
See also the similar provision contained in Art 98(2) ICC Statute, pertaining to relevant international
agreements between the requested State Party and the ‘sending State’.
233
Triffterer and Burchard (n 231) 1040.
234
Which is the subject of discussion; cp C Kreß and K Prost, ‘Article 98: Cooperation with respect to
Waiver of Immunity and Consent’ in Triffterer and Ambos (n 54) 2123.
235
ibid, 2125. For the general obligation of State Parties to cooperate with the Court, see Art 86 ICC Statute.
236
P Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315, 328; Kreß and Prost
(n 234) 2125.
to cooperate with the Court.237 Article 98(1) should then ensure that State Parties do
not have to act in contravention of their obligation to respect the immunity of a foreign
State official. According to some, State Parties would nevertheless be obliged to
comply with any request for surrender or assistance concerning such an official, because
also under customary international law, there is an exception to the immunity of State
officials before international courts (ie on the vertical level), which ‘encompasses
State measures of arrest and surrender of a person sought by the Court’.238 This was
the position taken by ICC Pre-Trial Chamber I in 2011, finding that Malawi and Chad
(State Parties to the ICC Statue) had failed to comply with the Court’s requests to
arrest and surrender the Sudanese President Omar Al Bashir (Sudan not being a State
Party to the ICC Statute). 239 However, at least for immunities ratione personae, this
position can be questioned. While for international crimes, there is an exception to the
immunity ratione materiae of State officials before foreign domestic courts (ie on the
horizontal level), such is not the case for immunities ratione personae (see Chapter 11,
Section III). Principally, Al Bashir still enjoys personal immunity vis-à-vis other
States, including State Parties to the ICC Statute. Unless the Court would first have
obtained Sudan’s cooperation for the waiver of Al Bashir’s immunity (which was not
the case), these States are thus ‘not obliged to execute the ICC request for surrender of
President Al Bashir, and can lawfully decide not to comply with it’.240
The matter becomes even more complicated if it concerns a situation that was referred
to the ICC by the UN Security Council, as was the case for the situation in Darfur
(Sudan).241 In 2014, Pre-Trial Chamber II found that the Democratic Republic of the
Congo (DRC) – a State Party to the ICC Statute – failed to comply with the requests to
arrest and surrender Al Bashir, but changed the reasoning adopted by Pre-Trial Chamber I.
It found that, as the UNSC had decided that Sudan ‘shall cooperate fully’ with the ICC, 242
this implied that the UNSC had implicitly waived the immunity of Al Bashir and thus
lifted any impediment at the horizontal level between the DRC and Sudan as to the
extradition of Al Bashir.243 Consequently, the DRC should have complied with the requests
to arrest and surrender him. This reasoning has been criticised, primarily because it can
hardly be argued that the UNSC has the power to affect the rights and powers of an
international organisation – the ICC – by modifying its constituent treaty, ie by dispensing
with the requirement of Article 98(1) to obtain the cooperation of Sudan for the waiver of
the immunity of Al Bashir.244
237
Except where that third State accepts the exercise of jurisdiction by the Court on an ad hoc basis (see Art
12(3) ICC Statute, and the discussion thereof above, Section V(B)); Triffterer and Burchard (n 231) 1042.
238
Kreß and Prost (n 234) 2127 (as regards immunity ratione materiae).
239
ICC, Pre-Trial Chamber I, Prosecutor v Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute
on the Failure by the Republic of Malawi [Chad] to Comply with the Cooperation Requests Issued by the Court
with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 12 [13] December 2011, Case No
ICC-02/05-01/09, paras 22–47 [para 13, citing the Malawi decision].
240
Gaeta (n 236) 329; cp ICC, Pre-Trial Chamber II, Prosecutor v Al Bashir, Decision under Article 87(7) of the
Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender
of Omar Al-Bashir, Case No ICC-02/05-01/09, 6 July 2017, para 68: ‘The Chamber is unable to identify a rule in
customary international law that would exclude immunity for Heads of State when their arrest is sought for inter-
national crimes by another State, even when the arrest is sought on behalf of an international court, including,
specifically, this Court.’
241
See UNSC Res 1593, 31 March 2005, UN Doc S/RES/1593.
242
ibid, operative clause 2.
243
ICC, Pre-Trial Chamber II, Prosecutor v Al Bashir, Decision on the Cooperation of the Democratic Republic
of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, 9 April 2014, Case No ICC-02/05-
01/09, para 29.
244
P Gaeta, ‘Guest Post: The ICC Changes Its Mind on the Immunity from Arrest of President Al Bashir,
But It Is Wrong Again’, Opinio Juris, 23 April 2014, opiniojuris.org/2014/04/23/guest-post-icc-changes-mind-
immunity-arrest-president-al-bashir-wrong.
In the latest episode of the ‘Al Bashir saga’, Pre-Trial Chamber II found that South
Africa failed to comply with its obligations under the Statute to arrest Al Bashir and
surrender him to the Court, again adopting a different reasoning.245 It now argued that
the necessary effect of the Security Council resolution triggering the Court’s jurisdiction […]
and imposing on Sudan the obligation to cooperate fully with the Court, is that, for the limited
purpose of the situation in Darfur, Sudan has rights and duties analogous to those of States Parties
to the Statute.246
Accordingly, Sudan would, like State Parties to the ICC Statute, be bound by Article
27 and the obligation to cooperate with the Court, following which South Africa was
under an obligation to arrest Al Bashir when it had the chance to do so. As the
Chamber acknowledged, ‘this is an expansion of the applicability of an international
treaty to a State which has not voluntarily accepted it as such’.247 Nevertheless, the
Chamber considered that the UN Charter permits the UNSC to impose such
obligations on States.248 Again, others have contested this, arguing that the UNSC has
the power to refer situations to the ICC based on the ICC Statute as a treaty, rather than
that it has the power to create a distinct source of jurisdiction for the ICC based upon
which the Court can treat States that have not consented to the ICC Statute as ‘quasi-
State parties’.249
iii. Minors
Lastly, it is to be noted that persons under 18 years old at the time of the alleged commis-
sion of a crime are excluded from the personal jurisdiction of the ICC.250 Crimes
committed against minors are obviously subject to the jurisdiction of the Court, notably
including the crime of ‘[c]onscripting or enlisting children under the age of fifteen years
into [armed forces] or using them to participate actively in hostilities’.251
D. Procedure
It would lead us too far to discuss the procedures before the various international
criminal tribunals. It suffices here to give a general overview of the functioning of the
ICC, as laid down in the ICC Statute and its Rules of Procedure and Evidence.252
i. Preliminary Investigation
After a situation has been referred to the Court by a State Party or the UN Security
Council, or before the Prosecutor decides to request the authorisation to open an
official
245
cp Al Bashir (2017) (n 240) para 134: ‘It is also acknowledged that previous decisions by the Court,
while invariably concluding that States Parties to the Statute have a duty to arrest Omar Al-Bashir and
surrender him to the Court, have not employed exactly the same legal argumentation on the matter.’
246
Al Bashir (2017) (n 240) para 88. This approach was proposed by D Akande, ‘The Legal Nature of Security
Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 JICJ 333.
247
Al-Bashir (2017) (n 240) para 89.
248
ibid.
249
Gaeta (n 244).
250
Art 26 ICC Statute.
251
Art 8(2)(b)(xxvi) and 8(2)(e)(vii) ICC Statute.
252
ICC, ‘Rules of Procedure and Evidence’, 9 September 2002, ICC-ASP/1/3, Part II-A, as amended by ICC-
ASP/10/Res.1 of 20 December 2011, ICC-ASP/11/Res.2 of 21 November 2012 and ICC-ASP/12/Res.7 of
12 November 2013.
investigation into a certain situation following a proprio motu initiative, the OTP first
conducts a preliminary investigation into that situation. In October 2018, a preliminary
investigation was ongoing for nine situations, while it had been closed with a decision
not to proceed for five situations.253 During such an investigation, the Prosecutor must
determine whether there is a ‘reasonable basis to proceed’ with the initiation of an ‘offi-
cial’ investigation.254 More specifically: (i) the information available to the Prosecutor
must provide ‘a reasonable basis to believe’ that a crime within the temporal, material and
geopgraphical or personal jurisdiction of the Court ‘has been or is being committed’ (on
jurisdiction, see above, Section V(B)); (ii) the case should be admissible (on admissibility,
see above, Section V(C)(i)); and (iii) ‘taking into account the gravity of the crime and the
interests of the victims’, there must be no ‘substantial reasons to believe that an investiga-
tion would not serve the interests of justice’.255
As alluded to above (Section V(B)), at the preliminary stage of the proceedings, this
assessment is to be made at the ‘situation’ rather than ‘case’ level, as concrete cases only
spring from the official investigation of a situation. The jurisdictional scope of the Court
serves to determine the situation within which the OTP conducts its investigative activities
by means of objective parameters.256 The consideration of admissibility, which includes
complementarity and gravity, takes into account ‘potential cases’ that would probably arise
from an official investigation into the situation. 257 For example, when the OTP received
information on alleged war crimes committed by officials of the UK in the context of the
armed conflict in Iraq and its subsequent occupation (2003–2008), the Prosecutor found
that ‘[t]he number of potential victims of crimes within the jurisdiction of the Court in this
situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman
treatment – was of a different order than the number of victims found in other situations
under investigation or analysis by the Office’, concluding that the OTP would not seek
authorisation to initiate an official investigation. 258 However, when the OTP declined to
initiate an official investigation into the ‘Flotilla incident’,259 which concerned the attack
by Israeli forces of an activist humanitarian aid convoy that intended to break the naval
block- ade of Gaza in 2010 and was referred to the ICC by the Union of the Comoros, Pre-
Trial Chamber I considered that ‘ten killings, 50–55 injuries, and possibly hundreds of
instances of outrages upon personal dignity, or torture or inhuman treatment, […] are a
compelling indicator of sufficient, and not of insufficient gravity’.260
253
Afghanistan, Colombia, Gabon (closed), Guinea, Honduras (closed), Iraq/UK, Nigeria, Palestine, the
Philippines, Registered Vessels of Comoros, Greece and Cambodia (closed), Republic of Korea (closed), Ukraine,
Venezuela I (closed) and II. See ICC, ‘Preliminary Investigations’, icc-cpi.int/pages/pe.aspx. Of course, the situ-
ations currently under official investigation as enumerated above (n 202) also went through the preliminary
investigation phase.
254
255
ibid.
256
OTP (n 212) para 41.
257
ibid, para 43.
258
ICC, OTP, Louis-Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, ‘OTP response
to communications received concerning Iraq’, 9 February 2006, icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-
AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf, 9. See, however, ICC,
‘Prosecutor of the International Criminal Court, Fatou Bensouda, re-opens the preliminary examination of the
situation in Iraq’, 13 May 2014, icc-cpi.int//Pages/item.aspx?name=otp-statement-iraq-13-05-2014.
259
See ICC, OTP, ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’,
6 November 2014, icc-cpi.int/iccdocs/otp/OTP-COM-Article_53(1)-Report-06Nov2014Eng.pdf.
260
ICC, Pre-Trial Chamber I, Decision on the Request of the Union of the Comoros to Review the Prosecutor’s
Decision Not to Initiate an Investigation, 16 July 2016, Case No ICC-01/13-34, para 26. Nevertheless, on
29 November 2017, the Prosecutor took the ‘final decision’ not to proceed with the investigation; ICC, OTP,
Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of
Cambodia, ‘Notice of Prosecutor’s Final Decision under Rule 108(3)’, 29 November 2017, Case No ICC-01/13.
The interests of justice, lastly, only need to be considered where jurisdiction and admis-
sibility have been established.261 These interests should be determined in dialogue with the
victims and respected intermediaries or representatives (eg local leaders, other States, inter-
national organisations, and/or NGOs).262 They should not be conflated with the interests
of peace, which fall within the mandate of other institutions. 263 The OTP has stressed that
there is a presumption in favour of investigation, and that it will exercise its discretion not
to initiate an investigation based on considerations of the interests of justice only
exceptionally and as a ‘last resort’.264
ii. Official Investigation

If the Prosecutor initiates an investigation proprio motu, it can only open an official
investigation after the Pre-Trial Chamber authorises him or her to do so.265 This
requirement was introduced into the ICC Statute as some States feared ‘politically
motivated or frivolous proprio motu proceedings’.266 If it concerns a situation that was
referred to the Prosecutor by a State Party or the UN Security Council, no such
authorisation is required, and the Prosecutor can decide to proceed from a preliminary to
an official investigation independently. Once an official investigation is opened, the Pre-
Trial Chamber may issue arrest warrants or summonses to appear (see eg above, Section
V(C)(ii), on the arrest warrants issued against Al Bashir). 267 The Pre-Trial Chamber may,
upon the request of the Pros- ecutor, take such measures as may be necessary to ensure the
efficiency and integrity of the proceedings and, in particular, to protect the rights of the
defence.268 The Pre-Trial Chamber subsequently holds a hearing to confirm the charges
against the person charged, normally in the latter’s presence.269 The indictment must
include the ‘material facts’ underpinning the charges, which must be given with enough
detail to inform the defendant clearly of the charges and allow him or her to prepare a
defence.270
iii. Trial
When the charges are confirmed, a trial is conducted, always in the presence of the
accused.271 The trial itself follows a straightforward scheme: opening statements, presen-
tation of evidence, closing arguments, deliberations and judgment. 272 Victims may, under
certain conditions, participate in the trial.273 In the event of a conviction, a sentence will be
imposed;274 the maximum sentence is life imprisonment.275 The Trial Chamber can
261
ICC, OTP, ‘Policy Paper on the Interests of Justice’, September 2007, icc-cpi.int/NR/rdonlyres/772C95C9-
F54D-4321-BF09-73422BB23528/143640/ICCOTPInterestsOfJustice.pdf, 2.
262
ibid, 6.
263
ibid, 1.
264
ibid, 1 and 9.
265
Arts 13(c) and 15(3)–(4) ICC Statute.
266
M Bergsmo, J Pejic and D Zhu, ‘Article 15: Prosecutor’ in Triffterer and Ambos (n 54) 727.
267
Art 58 ICC Statute.
268
ibid, Art 56.
269
ibid, Art 61. This is a feature that is known within the frameworks of the ICC and the ECCC only.
270
Cryer et al (n 22)
456. 271 Part VI ICC
Statute. 272 Cryer et al
(n 22) 469.
273
274
ibid, Art 76.
275
ibid, Art 77(1)(b).
also order reparations to be made to the victims. 276 The Trial Chamber’s decisions can be
appealed or revised.277 The ICC Statute lists the grounds of appeal as procedural error,
error of fact, and error of law, and as an additional ground in case of conviction ‘[a]ny
other ground that affects the fairness or reliability of the proceedings or decision’. 278 In the
event of a sentence of imprisonment, the sentence is not served at the ICC’s premises, but
in a State designated by the Court from a list of States which have indicated to the Court
their willingness to accept sentenced persons.279
International criminal tribunals have given rather strong protection to the rights of
the accused, even if the latter have been accused of the most horrific crimes.280 The case
law of the ECtHR has partly influenced the protective scope of these rights, in particular
with respect to the right to a fair trial, the length of the proceedings, the scope of appeals,
the equality of arms, the adversarial nature of the hearing, and judicial independence and
impartiality.281
III. Limitations of International Criminal Justice

International criminal justice’s aspirations to bring about a more just world through
the meting out of accountability for the gravest crimes should be nuanced. First, inter-
national criminal tribunals, given logistical and financial constraints, can only try a
handful of criminals.282 This means that most international criminals must be tried by
domestic courts, which may lack the resources, legislation, jurisdiction and/or willingness
to do so.283
Second, international criminal tribunals are crucially dependent on the cooperation of
States for the arrest of suspects and the gathering of evidence. 284 Practice has demonstrated
that such cooperation is not self-evident, especially not if the investigation and prosecu-
tion concern senior leaders or commanders. ICTY fugitives such as Karadžić and Mladić
could remain on the run for many years, apparently protected by segments of the Serbian
security services. The ICC as well has had its fair share of cooperation problems, as
particularly illustrated by the Al Bashir saga (see above, Section V(C)(ii)). Due to such
problems, a number of prosecutions were suspended or even discontinued, notably
including the
276
ibid, Art 75. For this purpose, a Trust Fund has been established in accordance with Art 79.
277
Part VIII ICC Statute.
278
ibid, Art 81(1).
279
ibid, Art 103. The States which have indicated this are Austria, Belgium, Colombia, Denmark, Finland, Mali,
Serbia and the UK.
280
Note that Art 21(3) ICC Statute provides that the application of the law of the ICC should be consistent
with internationally recognised human rights.
281
See WA Schabas, ‘Synergy or Fragmentation? International Criminal Caw and the European Convention
on Human Rights’ (2011) 9 JICJ 609.
282
This explains why the statutes of a number of tribunals stipulate that they focus only on the most responsible
persons; see eg Art 1 ECCC Statute and Art 1(1) SCSL Statute. See also ICC, OTP, ‘Strategic Plan, 2016–2018’,
16 November 2015, icc-cpi.int/iccdocs/otp/EN-OTP_Strategic_Plan_2016-2018.pdf, 16.
283
International crimes can also be prosecuted by third States on the basis of the universality principle, on which
see Chapter 9, Section IV(B)(v).
284
The entire Part IX of the ICC Statute is devoted to issues of international cooperation and judicial
assistance.
LIMITATIONS OF INTERNATIONAL CRIMINAL JUSTICE 773
case against Uhuru Kenyatta, the president of Kenya.285 Such problems may seriously
dent the legitimacy of the ICC, which may be perceived as not being able to deliver on its
promises.
Third, the retributive criminal justice paradigm may not always be appropriate to
provide accountability or to offer affected societies a sense of closure. Instead, non-
criminal ‘transitional justice’ solutions have been suggested that would be more attuned
to local cultural sensitivities and could further peace and reconciliation in ways that
criminal law cannot. Two such mechanisms stand out: amnesties and truth and
reconciliation commissions. Thoughtfully drafted amnesty laws, which protect their
beneficiaries from prosecution, can bring an end to vicious conflicts and smooth
democratic transition processes.286 A truth and reconciliation commission, such as the
one established in post-apartheid South Africa,287 may promise non-prosecution in return
for truth-telling, can allow victims to reconcile with perpetrators,288 and establish a
historical record. It is unclear whether such mechanisms, insofar as they shield
perpetrators of international crimes from justice, are compatible with the duty to
prosecute underlying the ICC’s principle of complementarity.289 The EU chooses to
promote national criminal investigations and prosecutions. The EU Day Against
Impunity for genocide, crimes against humanity and war crimes, is a special annual
event at the EU level (organised by the Presidency of the Council of the EU, the
European Commission, the Network for investigation and prosecution of genocide,
crimes against humanity and war crimes and Eurojust) to commemorate the victims of
core international crimes and to raise awareness and promote the fight against impu-
nity. In addition to the promotion of criminal investigations and prosecutions, the event
is intended to appropriately recognise the common efforts of the EU Member States and
the EU in enforcing ICL, to address the position and participation of victims in criminal
proceedings, and to reinvigorate Europe-wide commitment to the continuing fight against
impunity.290
285
See ICC, Trial Chamber V(B), Prosecutor v Uhuru Muigai Kenyatta, Notice of Withdrawal of the Charges
against Uhuru Muigai Kenyatta, 5 December 2014, Case No ICC-01/09-02/11.
286
Amnesty laws should carefully balance the interests of peace and justice. Thus, ‘self-amnesty laws’ (adopted
by authoritarian regimes to bar the prosecution of their crimes) or ‘blanket amnesty laws’ (exempting entire
groups from prosecution without making a distinction based on the role of individuals or the gravity of their
crimes) are problematic from a human rights law perspective. Eg, in 1995, Peruvian President Alberto Fijumori
enacted Amnesty Law 26479 (confirmed and extended by Amnesty Law 26492 later that year), granting a general
amnesty to all military, police and civilian personnel involved in human rights violations in relation to the fight
against terrorism (ie against the guerilla groups the Shining Path and the Túpac Amaru Revolutionary Movement
(MRTA)). However, when called upon to adjugde the compatibility of the Amnesty Laws with the IACHR, the
IACtHR ruled that ‘all amnesty provisions […] are inadmissible, because they are intended to prevent the investi-
gation and punishment of those responsible for serious human rights violations’; IACtHR, Barrios Altos v Peru,
14 March 2001, IACtHR Ser C No 83, para 41. On the situation in Peru, see C Sandoval, ‘The Challenge of
Impunity in Peru: The Significance of the Inter-American Court of Human Rights’ (2008) 5 Essex Human Rights
Review 1. On the issue more generally, see L Mallinder, ‘Can Amnesties and International Justice Be
Reconciled?’ (2007) 1 International Journal of Transitional Justice 208.
287
See South African Truth and Reconciliation Commission, ‘Final Report’, 29 October 1998, justice.gov.za/trc/
report.
288
However, it is not fully clear whether truth-telling does lead to reconciliation. Moreover, victims are often not
satisfied with truth an sich. See further OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: Truth
Commissions’, 2006, HR/PUB/06/1.
289
See notably Art 17(2)(a) ICC Statute, as discussed above, Section V(C)(i).
290
See Eurojust, ‘Strategy of the EU Genocide Network to combat impunity for the crime of genocide, crimes
against humanity and war crimes within the European Union and its Member States’, November 2014, eurojust.
europa.eu/Practitioners/Genocide-Network/Pages/strategy.aspx, measure 7c.
IV. Extradition
A. General System
So far, this chapter has been concerned with substantive ICL and the supranational
mechanisms enforcing it. As pointed out, ICL and its machinery are of rather recent
vintage, starting with the 1946 Nuremberg trials. Horizontal State cooperation in
criminal matters is much older: the first extradition treaty was arguably signed as
early as the thirteenth century BC, between the Egyptian Pharaoh Ramesses II and the
Hittite King Hattusili III.291 Given the abiding practical relevance of extradition for
common crimes (and to a lesser extent international crimes), as well as public
international law’s imprint on current extradition practices, the basic features of the
law of extradition will be outlined here.
The law of extradition is related to the law of jurisdiction in criminal matters (on
which see Chapter 9, Section IV). A State may have jurisdiction under international
law over a crime, eg, on the basis of the territoriality or nationality principle, but it may
not have custody of the presumed offender. The latter may well have fled to another
State, and in order to gain custody and bring him or her to justice before its own courts,
the forum State will have to file an extradition request with the custodial State. Indeed,
in light of the prohibition of extraterritorial enforcement jurisdiction,292 international
law does not allow the forum State to enforce its arrest warrants abroad. That being
said, a person who has been arrested in violation of this prohibitive rule may not be
allowed to invoke irregularities in his or her arrest or detention procedure when
brought to justice in the forum State (principle of male captus bene detentus),293
although in some common law countries, judges can resort to the abuse of process
doctrine to avert a miscarriage of justice.294
Extradition is governed partly by international and partly by national (criminal/adminis-
trative) law, which explains the wide variety in extradition practices. However, such
practices evince a number of commonalities. Most European States have entered into a
considerable number of bilateral and multilateral extradition treaties with other States, as
without a treaty, extradition will not normally be possible. There is obviously no duty to
conclude extradition treaties. As a result, a patchwork of treaties, especially bilateral ones,
has seen the light. In practice, no State has extradition agreements with all other States,
especially not with States whose legal or political system is not deemed trustworthy.
The precise extradition rules and procedures are laid down in domestic legislation,
especially of the requested State. Such legislation typically provides for a diplomatic or
political rather than a judicial decision-making process, which explains why the
processing of an
291
See Treaty Between Hattusili and Ramesses II, paras 11–14, as translated in S Langdon and AH Gardiner,
‘The Treaty of Alliance Between Hattusili, King of the Hittites, and the Pharaoh Ramesses II of Egypt’ (1920) 6
Journal of Egyptian Archaeology 179, 192–94.
292
SS Lotus [1927] PCIJ Series A, No 10, 18–19. See also Chapter 9, Section I.
293
See eg Stocké v Germany App no 11755/85 (ECtHR, 13 December 1989); Öcalan v Turkey App no 46221/99
(ECtHR, 12 March 2003).
294
The principle of male captus bene detentus was applied in the UK. See eg King’s Bench (UK), Ex parte
Susanna Scott [1829] 109 Eng Rep 166; King’s Bench Divisional Court (UK), Ex parte Elliot [1949] 1 All ER
373; until the House of Lords reversed its case law in R v Horseferry Road Magistrates’ Court, ex parte Bennett
[1993] 3 WLR 90.
EXTRADITION 775
extradition request may take a rather long time.295 Still, as decisions on extradition are
administrative acts, they may be subject to judicial review.296
Extradition is not normally possible for all crimes: treaties or domestic laws either
enumerate the crimes eligible for extradition, or lay down a severity threshold (eg, all
crimes punishable by at least one year’s imprisonment).297 Also, they normally require
double criminality: the act for which extradition is sought should be a crime in both the
requesting and the requested State. 298 Specific categories of crimes may be excluded from
extradition; eg, political299 or fiscal offences.300 States may also refuse to extradite their
own nationals.301 Once a person has been extradited, States can only try that person for the
offences for which he or she has been extradited (a rule referred to as the ‘principle of
specialty’).302
While extradition law is to an important extent governed by domestic law, interna-
tional law has had a sizable impact on extradition practices. Some international treaties
on specific crimes provide for a State’s duty to either prosecute or extradite the person
who has presumably committed the crime and who is present on its territory (aut
dedere aut judicare). However, aut dedere aut judicare is no general principle of
international law, and is limited to more serious crimes, often violations of
international law, such as war crimes,303 torture,304 terrorism,305 apartheid306 or
corruption.307 In respect of these crimes, State Parties to the relevant conventions are
under an obligation to extradite the alleged perpetrator if they do not prosecute him or
her. In Questions relating to the Obligation to Prosecute or Extradite (Belgium v
Senegal), the ICJ has held, at least as far as the aut dedere aut judicare clause of the
UN Convention against Torture is concerned,308 that ‘the choice between extradition
or submission for prosecution, pursuant to the Convention, does not mean that the
295
This explains in turn the adoption of the EAW Framework Decision (n 10), the execution of which has
been entrusted to judicial authorities who can process surrender requests more speedily.
296
See eg the UK House of Lords’ review of the decision to extradite General Pinochet to Spain: R v Bow Street
Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 1) [1998] 3 WLR 1456.
297
For an example of the former, see eg Art II Convention on Extradition Between the United States of
America and Sweden (adopted 24 October 1961, entered into force 3 December 1963) 494 UNTS 141. For
examples of the latter, see eg Art 2(1) European Convention on Extradition (adopted 13 December 1957,
entered into force 18 April 1960) CETS No 24.
298
Requiring double criminality, see eg Art 2(1) European Convention on Extradition (n 297); Art 2(1)
Extradition Treaty between the United States of America and the United Kingdom of Great Britain and Northern
Ireland (adopted 31 March 2003, entered into force 26 April 2007) 2490 UNTS 249: ‘An offense shall be an
extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by
deprivation of liberty for a period of one year or more or by a more severe penalty’ (emphasis added).
299
See eg C van Den Wyngaert, ‘The Political Offence Exception to Extradition: Defining the Issues and
Searching a Feasible Alternative’ (1983) 20 Revue belge de droit international 741.
300
Art 5 European Convention on Extradition (n 297).
301
eg Austria (see Section 12 of the Austrian Extradition and Legal Assistance Act (4 December 1979)),
the Czech Republic (see Art 14(4) of the Charter of Fundamental Rights and Freedoms (1 January 1991)),
France (see Arts 696-1 to 696-7 of the Code of Criminal Procedure (25 January 1974)), Germany (except to
a Member State of the EU or to an international court, see Art 16(2) Basic Law for the Federal Republic of
Germany (8 May 1949)).
302
See eg Art 14(1) European Convention on Extradition (n 297); Court of Appeal Antwerp (BE), NV ICLBLTR
and NV S v JS, 25 October 2006, (2008–2009) Rechtskundig Weekblad 460.
303
See respectively Arts 49, 50, 129 and 146 of GC I, II, III and IV.
304
See Arts 5(2) and 7(1) UN Convention against Torture.
305
See Art 7 Convention for the Suppression of Unlawful Seizure of Aircraft (16 December 1970, entered into
force 14 October 1971) 860 UNTS 105.
306
See Art XI(2) International Convention on the Suppression and Punishment of the Crime of Apartheid
(adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243.
307
See Art 44(11) UN Convention against Corruption (n 2).
308
Art 7(1) UN Convention against Torture.
two alternatives are to be given the same weight’; according to the Court, ‘[e]xtradition is
an option offered to the State by the Convention, whereas prosecution is an international
obligation under the Convention, the violation of which is a wrongful act engaging the
responsibility of the State’.309
Also international human rights treaties have influenced, or rather limited, States’
extradition practices. This applies in particular to Europe, where the ECtHR is the final
arbitrator of the compatibility of judicial and administrative decisions taken by ECHR
Contracting Parties.310 The ECtHR case law has a broad application: it applies to deci-
sions regarding extradition, deportation, expulsion, or any other form of removal from the
territory. In the seminal Soering case of 1989, the ECtHR held that the United Kingdom
violated Article 3 ECHR, which prohibits inhuman and degrading treatment, by extradit-
ing an individual to the United States, where he would possibly be exposed to the death
row phenomenon.311 In later cases, the risk of being sentenced to death,312 or even to life
imprisonment without parole in the third State, 313 have been considered to fall within the
scope of Article 3 ECHR.314 The Court has confirmed that this provision is absolute, which
means that it is not possible to weigh the risk of ill-treatment against the reasons for
extraditing or deporting the person.315 The ECtHR not only reviews extradition or
deportation decisions in light of Article 3 ECHR, but also in light of Article 13 ECHR
(right to an effective remedy, ie judicial review),316 Article 5 ECHR (right to liberty) and
Article 6 ECHR (right to a fair trial) provided that the breaches are flagrant. 317 In Abu
Qatada, the ECtHR for the first time held there to be a real risk that an individual’s retrial
in a third State after deportation would amount to a flagrant denial of justice. 318 However,
under certain conditions, the ECtHR is willing to accept diplomatic assurances from the
receiving State that the extradited or deported individual’s rights, especially his or her right
not to be ill-treated, will not be violated.319
In the fight against terrorism, regular extradition procedures have at times been
circum- vented through extraordinary renditions – secret transfers from one State to
another, often combined with secret detention where torture is employed during
interrogation sessions. European States have cooperated with the United States in
extraordinary rendition programs; the Council of Europe and the ECtHR have
condemned such practices as violations of the ECHR.320
309
Questions relating to the Obligation to Prosecute or Extradite (n 83) para 95.
310
On the ECHR and the ECtHR, see Chapter 16, Section IX.
311
Soering v UK App no 14038/88 (ECtHR, 7 July 1989).
312
ibid.
313
Trabelsi v Belgium App no 140/10 (ECtHR, 4 September 2014).
314
See also Chapter 16, Section IX(A)(i) on the normative provisions of the ECHR.
315
Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008) paras 125 and 138.
316
A v the Netherlands App no 4900/06 (ECtHR, 20 July 2010).
317
Soering v UK (n 311) para 113; Mamatkulov and Askarov v Turkey App nos 46827/99 and 46951/99 (ECtHR,
4 February 2005) paras 90 and 91; Al-Saadoon and Mufdhi v UK App no 61498/08 (ECtHR, 2 March 2010) para
149; Othman (Abu Qatada) v UK App no 8139/09 (ECtHR, 17 January 2012) paras 233 and 258.
318
Abu Qatada v UK (n 317) para 288.
319
The Court assesses the quality of assurances given and whether, in light of the receiving State’s practices,
they can be relied upon. For 11 factors taken into account by the Court in this assessment, see Abu Qatada v UK
(n 317) para 189. In that case, the Court accepted the receiving State’s diplomatic assurances that on the
individual’s return he would not be exposed to a real risk of ill-treatment (paras 186–207).
320
Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, ‘Alleged
secret detentions and unlawful inter-state transfers involving Council of Europe member states’, Draft report –
Part II (Explanatory memorandum), 7 June 2006, AS/Jur (2006) 16 Part II; Parliamentary Assembly of the
Council of Europe, Committee on Legal Affairs and Human Rights, ‘Secret detentions and illegal transfers of
EXTRADITION 777
B. Extradition Procedures in Europe
Specifically for European States, one has seen the coming about of a multiplicity of multi-
lateral instruments on extradition at the regional and subregional level over the past six
decades, including: (i) the 1957 European Convention on Extradition, negotiated within
the framework of the Council of Europe;321 (ii) the 1962 Benelux Extradition Treaty
(between Belgium, the Netherlands and Luxembourg);322 (iii) the 1990 Convention
implementing the Schengen Agreement (making the European Extradition Convention
applicable amongst the Schengen States); 323 and (iv) the 1995 and 1996 EU Extradition
Conventions.324
The main extradition instrument has for a long time been the European Extradition
Convention. This Convention is a classic extradition treaty, which provides for traditional
extradition exceptions,325 and does not do away with the rather cumbersome diplomatic
extradition procedures.326 However, in the relations between EU Member States and for
the offences that fall within its scope, 327 all instruments concerning extradition have been
replaced by the 2002 EU Framework Decision on the European Arrest Warrant (EAW).328
The EAW is based on the principle of mutual trust and smooths the extradition process.
Departing from the ordinary international extradition practice, ‘surrender’ – so no longer
‘extradition’ – procedures on the basis of the EAW Framework Decision are depoliticised
and only involve judicial authorities, require Member States to surrender their own nation-
als, and abandon the requirement of double criminality for 32 (serious) crimes (eg
terrorism and trafficking in human beings). 329 However, the issuing Member State cannot
issue an arrest warrant for any act: acts should be punishable by the law of the issuing
Member State
detainees involving Council of Europe member states: second report’, 11 June 2007, Doc 11302 rev; Babar
Ahmad and others v UK App nos 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 (ECtHR, 10 April
2012); Husayn (Abu Zubaydah) v Poland App no 7511/13 (ECtHR, 24 July 2014); Al Nashiri v Poland App no
28761/11 (ECtHR, 24 July 2014); finding violations of Arts 3, 5, 6(1), 8 and 13 ECHR.
321
See above (n 297).
322
Treaty Concerning Extradition and Mutual Assistance in Criminal Matters between the Kingdom of
Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands (adopted 27 June 1962,
entered into force 11 December 1967) UNTS No 8893. Nothwithstanding the European Convention on
Extradition, the Benelux Extradition Treaty governed the relevant relations between Belgium, the
Netherlands and Luxembourg, as those countries made reservations to the European Convention for that
purpose.
323
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States
of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual
Abolition of Checks at Their Common Borders (adopted 19 June 1990, entered into force 1 September 1993)
[2000] OJ L239/19, Art 60.
324
Convention Drawn up on the Basis of Article K.3 of the Treaty on European Union, on Simplified Extradition
Procedure between the Member States of the European Union (adopted 10 March 1995, not entered into force)
[1995] OJ C78/2; Convention drawn up on the basis of Article K.3 of the Treaty on European Union relating to
Extradition between the Member States of the European Union (adopted 27 September 1996, not entered into
force) [1996] OJ C313/11. Even if these EU Extradition Conventions have never entered into force because they
were not ratified by all then EU Member States, they applied between those Member States that made
declarations in that respect; see eg Art 16 of the 1995 Convention.
325
See Arts 3–6 of the European Convention on Extradition (n 297).
326
ibid, Art 21.
327
See Recital 11 EAW Framework Decision (n 10), making this replacement explicit; and ibid, Art 2, enumerat-
ing the offences that fall within the EAW Framework Decision’s scope.
328
See above (n 10).
329
Art 2(2) EAW Framework Decision.
by a custodial sentence or a detention order for a maximum period of at least 12

months or, where a sentence has been passed or a detention order has been made, for
sentences of at least four months.330
Judicial authorities of the Member State of execution (ie, the State which receives
the surrender request) are normally required to execute the EAW. However, the EAW
Frame- work Decision lists a number of grounds for mandatory and optional non-
execution of the EAW. Mandatory grounds include amnesty, double jeopardy and
age,331 whereas optional grounds include absence of double criminality, prosecution in
the executing State, applicability of a statute of limitations, final judgment in a third
State, execution of a sentence in the executing State, and extraterritorial offences.332 In
a number of scenarios, the executing State can also subject the execution of the EAW
to certain guarantees, namely where the EAW has been issued for the purposes of
executing a sentence or a detention order imposed by a decision rendered in absentia,
where the offence is punishable by a custodial life sentence or life-time detention
order, and where a person who is the subject of a EAW for the purposes of prosecution
is a national or resident of the executing State.333 In the latter scenario, the executing
State may subject surrender to the condition that the person, after being heard, is
returned to the executing Member State in order to serve the custodial sentence or
detention order passed against him or her in the issuing Member State.334
The EAW Framework Decision provides for strict time limits for the execution of the
EAW. In cases where the requested person consents to his or her surrender, the final
decision on the execution of the EAW should be taken within a period of 10 days after
consent has been given.335 In other cases, the final decision on the execution of the EAW
should be taken within a period of 60 days after the arrest of the requested person. 336 The
time limits can exceptionally be extended for a further 30 days.337 The person must be
surrendered no later than 10 days after the final decision on the execution of the EAW.338
The specialty principle, as it applies under ordinary extradition law, continues to apply
under the EAW regime, subject to limited exceptions. Thus, a person surrendered may
not normally be prosecuted, sentenced or otherwise deprived of his or her liberty for an
offence committed prior to his or her surrender other than that for which he or she was
surrendered.339
The EAW has been criticised by human rights advocates and defence lawyers, who
feared that the smoother surrender procedures under the EAW could go to the detriment of
individual rights guarantees,340 even if the preamble of the Framework Decision confirms
the applicability of human rights in EAW surrender proceedings.341 Various aspects of the
EAW, and its interpretation and application, have been challenged before the CJEU, but the
330
ibid, Art 2(1).
331
ibid, Art 3.
332
ibid, Art 4.
333
Judgment of 17 July 2008, Kozłowski, C-66/08 EU:C:2008:437.
334
Art 5 EAW Framework Decision.
335
ibid, Art 17(2). Consent can be given on the basis of Art 13.
336
ibid, Art 17(3).
337
ibid, Art 17(4).
338
ibid, Art 23(2).
339
ibid, Art 27(2). The exceptions are listed in Art 27(1) and (3).
340
See eg L Marin, ‘The European Arrest Warrant and Domestic Legal Orders: Tensions between Mutual
Recognition and Fundamental Rights: The Italian Case’ (2008) 15 Maastricht Journal of European and
Comparative Law 473; JAE Vervaele, ‘The Transnational ne bis in idem Principle in the EU Mutual Recognition
and Equivalent Protection of Human Rights’ (2005) 1 Utrecht Law Review 100.
341
EAW Framework Decision, recitals (12) and (13).
EXTRADITION 779
Court has not proved willing to subject the operation of the EAW to stringent human rights
requirements. In Advocaten voor de Wereld (2007),342 it rejected claims that the EAW
should have been regulated by a treaty rather than a Framework Decision,343 or that the
abandon- ment of the condition of double criminality in Article 2(2) of the Framework
Decision violated the principle of legality of criminal offences and penalties. 344 In Radu
(2013), it held that ‘the executing judicial authorities cannot refuse to execute a European
arrest warrant issued for the purposes of conducting a criminal prosecution on the ground
that the requested person was not heard in the issuing Member State before that arrest
warrant was issued’.345 In Melloni (2013), it ruled that Article 53 of the EU Charter does
not allow an executing Member State to apply its own constitutional standards on the right
to a fair trial and the rights of the defence, rather than the issuing Member State’s
standards, when making the surrender of a person convicted in absentia conditional upon
the conviction being open to review in the issuing Member State. 346 In the Court’s view, a
contrary interpretation of Article 53 of the Charter ‘would undermine the principle of the
primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules
which are fully in compliance with the Charter where they infringe the fundamental rights
guaranteed by that State’s constitution’.347 All these decisions confirm the principle of
mutual trust between Member States underpinning the EAW, a principle that should not be
undermined by spurious human rights arguments.
One should realise that the EAW only applies to the relations between EU Member
States. In the relations between the EU and its Member States on the one hand, and third
States on the other, the classic extradition rules continue to apply. Extradition treaties have
also been concluded by the EU itself, most notably with the United States.348 These
agreements affect but do not invalidate bilateral extradition treaties existing in the relations
between a Member State and the third State, nor do they preclude the conclusion of
bilateral extradition treaties after the entry into force of the EU agreement.349 Such
bilateral treaties should, however, comply with the framework rules set out in the EU
agreement. Under the EU-US Agreement, for instance, Member States are precluded from
extraditing a person to the US if the offence is not punishable under the laws of the
requesting and requested State by deprivation of liberty for a maximum period of more
than one year or by a more severe penalty, 350 or where the offence for which extradition is
sought is punishable by death in the United States, if assurances are not provided that the
death penalty shall not be imposed or carried out.351
342
Judgment of 3 May 2007, Advocaten voor de Wereld VZW v Leden van de Ministerraad, C-303/05,
EU:C:2007:261.
343
The Court found that Art 34 TEU did not establish any order of priority between the different
instruments listed in that provision, and thus that the Council legitimately opted for a Framework Decision,
even in a field that was previously regulated by conventions; ibid, paras 41–42.
344
ibid, para 57.
345
Judgment of 29 January 2013, Ciprian Vasile Radu, C-396/11, EU:C:2013:39, para 43.
346
Judgment of 26 February 2013, Stefano Melloni v Ministerio Fiscal, C-399/11, EU:C:2013:107, para 64.
347
ibid, para 58.
348
Agreement on Extradition between the European Union and the United States of America (adopted 25
June 2003, entered into force 1 February 2010) [2003] OJ L181/27.
349
By virtue of Art 3 of the EU-US Agreement, the EU ensures ‘that the provisions of this Agreement are
applied in relation to bilateral extradition treaties between its Member States and the [US], in force at the time of
the entry into force of this Agreement’. Nevertheless, as specified in Art 18, the Agreement does ‘not preclude the
conclusion, after its entry into force, of bilateral Agreements between a Member State and the [US] consistent
with this Agreement’.
350
Art 4(1) EU-US Agreement.
351
ibid, Art 13.
V. Concluding Observations
ICL started its ascendancy only after the Second World War and is a rather new functional
domain of public international law. It is an important field, however, not only because,
in a departure from the State-centric perspective of international law, it provides for the
responsibility of individuals, but also because the establishment of international criminal
tribunals, and especially the ICC, has raised the prospect that those who commit unspeak-
able atrocities, wherever on earth, will no longer escape accountability.
While the vertical cooperation between international criminal tribunals and States
has not gone smoothly, horizontal cooperation in criminal matters in contrast, given its
long pedigree, is likely to stay with us. Mechanisms of extradition and surrender of
(mostly common) criminals between States are firmly in place, and are expected to
gain in promi- nence as transnational criminality spreads with increased opportunities
of international exchange and commerce. It remains a challenge, however, to ensure
that States’ desire to facilitate extradition and surrender procedures does not
undermine the individual rights of presumed offenders. Courts, including the ECtHR
and the CJEU, play a key role in this respect.
Bibliography
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Europäisches Strafrecht, Rechtshilfe, 5th edn (München, Beck, 2018).
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Pedone, 2012).
Bantekas, I, International Criminal Law, 4th edn (Oxford, Hart, 2010).
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Bassiouni, MC, Introduction au droit pénal international (Brussels, Bruylant, 2002).
Bassiouni, MC, Introduction to International Criminal Law, 2nd edn (Dordrecht, Nijhoff,
2012).
Bueno Arús, F and de Miguel Zaragoza, J, Manual de derecho penal internacional (Madrid,
Universidad Pontificia de Comillas, 2003).
Cassese, A, International Criminal Law, 3rd edn (Oxford, OUP, 2013).
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Cassese, A, Gaeta, P and Jones, JRWD (eds), The Rome Statute of the International
Criminal Court: A Commentary, 2 Vols (Oxford, OUP, 2002).
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OUP, 2014) 752–82.
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Editions Panthéon-Assas, 2004).
FURTHER READING 781
Huet, A and Koering-Joulin, R, Droit pénal international, 3rd edn (Paris, PUF, 2005).
Jones, JRWD and Powles, S, International Criminal Practice, 3rd edn (Ardsley,
Transnational,
2003).
Kolb, R and Scalia, D (eds), Droit international pénal: prècis, 2nd edn (Basel, Helbing &
Lichtenhahn, 2012).
L Reydams, J Wouters and C Ryngaert (eds), International Prosecutors (Oxford, OUP,
2012).
Schabas, WA, An Introduction to the International Criminal Court, 5th edn (Cambridge,
CUP, 2017).
Schabas, WA, The International Criminal Court: A Commentary on the Rome Statute,
2nd edn (Oxford, OUP, 2016).
Stahn, C (ed), The Law and Practice of the International Criminal Court (Oxford, OUP,
2015).
Triffterer, O and Ambos, K (eds), Rome Statute of the International Criminal Court: A
Commentary, 3rd edn (München, Beck, 2016).
Werle, G and Jeßberger, F, Völkerstrafrecht, 4th edn (Tübingen, Mohr Siebeck, 2016).
Werle, G and Jeßberger, F, Principles of International Criminal Law, 3rd edn (Oxford,
OUP,
2014).
Further Reading
Bohlander, M (ed), International Criminal Justice: A Critical Analysis of Procedures and
Institutions (London, Cameron May, 2007).
Boister, H, An Introduction to Transnational Criminal Law (Oxford, OUP, 2012).
Ferdinandusse, W, Direct Application of International Criminal Law in National Courts
(Den Haag, TMC Asser Press, 2006).
Lawther, C, Moffett, L and Jacobs, D, Research Handbook on Transitional Justice
(Cheltenham, Edward Elgar, 2017).
Mettraux, G, International Crimes and the ad hoc Tribunals (Oxford, OUP, 2005).
Politi, P and Gioia, F (eds), The International Criminal Court and National Jurisdictions
(Aldershot, Ashgate, 2008).
Ratner, SR, Abrams, JS and Bischoff, JL, Accountability for Human Rights Atrocities in
International Law: Beyond the Nuremberg Legacy, 3rd edn (Oxford, OUP, 2009).
Schabas, WA, McDermott, Y and Hayes, N (eds), The Ashgate Research Companion to
International Criminal Law: Critical Perspectives (Farnham, Ashgate, 2013).
Schiff, BN, Building the International Criminal Court (Cambridge, CUP, 2008).
Simbeye, Y, Immunity and International Criminal Law (Aldershot, Ashgate, 2004).
Stigen, J, The Relationship between the International Criminal Court and National
Jurisdictions: The Principle of Complementarity (Leiden, Nijhoff, 2008).
J Wouters, S Verhoeven and B Demeyere, ‘The International Criminal Court’s Office of the
Prosecutor: Navigating between Independence and Accountability?’ (2008) 8
International Criminal Law Review 273.
Yokaris, A, La répression pénale en droit international public (Brussels, Bruylant, 2007).

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Ad Hoc Committee, inter alia to develop ‘a comprehensive legal framework of

I. Individual Criminal Responsibility

B. Joint Criminal Enterprise

Every person who participates in a JCE is considered to be a principal perpetrator. Thus,

C. Co-Perpetration by Control over the Crime

commander or superior and the subordinate(s) concerned – be it de jure or de facto – in the

E. Defences: Justiﬁcations and Excuses

In a limited number of situations, individuals can escape criminal responsibility by invok-

II. International Criminal Tribunals

While East-West tensions precluded the establishment of international criminal tribu-

C. Bars to the Exercise of Jurisdiction

was not established to be an international court of human rights, sitting in judgment

ii. Official Investigation

III. Limitations of International Criminal Justice

B. Extradition Procedures in Europe

by a custodial sentence or a detention order for a maximum period of at least 12

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