THEORY OF INTERNATIONAL CRIMINAL LAW
1.3 THE INTERNATIONAL CRIMINALISATION PROCESS
An international offence is any act entailing the criminal liability of the perpetrator, and emanating from treaty or custom. The heinous nature of an act, such as the
11 As does, eg, International Criminal Tribunal for the Former Yugoslavia (ICTY) Statute,Art 24(1) which states that, in determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.
12 Advisory Opinion Concerning Exchange of Greek and Turkish Populations(1925) PCIJ Reports, Ser B, No 10, pp 19–20, cited by Judges McDonald and Vohrah in ICTYProsecutor v Erdemovic,Appeals Chamber Judgment (1997), summarised in 92AJIL(1998), 283.
13 This formulation was consistent with theReport of the Preparatory Committee on the International Criminal Courtat the Diplomatic Conference held in Rome (15 June–17 July 1998), UN Doc A/CONF 183/2/Add 1 (14 April 1998), pp 46–47.
14 See generally R Higgins,Problems and Process: International Law and How We Use It,1994, Oxford:
OUP, pp 48–55.
15 59 Stat 1544.
extermination of an identified group, is not the sole determinant for elevating such behaviour to the status of an international offence, although this may serve as a good incentive to do so. Rather, as Dinstein correctly points out, ‘the practice of States is the conclusive determinant in the creation of international law (including international criminal law), and not the desirability of stamping out obnoxious patterns of human behaviour’.16Simply put, the establishment of international offences is the direct result of interstate consensus, all other considerations bearing a distinct subordinate character.
The legal basis for considering an offence to be of international import is where existing treaties or custom consider the act as being an international crime.17Since every international offence is now codified in multilateral agreements, we shall continue our analysis on the basis of treaty law. Although international treaties define or prescribe offences by employing inconsistent terminology, it is possible to discern two broad categories where they purport to so criminalise specific conduct. The first category comprises those treaties, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,18which contain a categorical provision that the forbidden act constitutes a crime under international law (usually termed ‘universal’
crimes). A second category of treaties may or may not describe the forbidden conduct as a crime, but clearly imposes a duty on contracting parties to prosecute or extradite the alleged offender, or simply render the said conduct an offence under their national law. The different variants of this latter category have attracted wide application in the international criminalisation process and have been the major vehicle for the anti- terrorist treaties. The fact that a treaty defines certain conduct simply as an offence, or imposes a duty on States to take action at the domestic criminal level, without, however, describing the conduct as an international crime, in no way detracts from the international nature of the offence prescribed by the treaty. Treaties of this nature usually point out that they are not applicable to acts perpetrated solely within a single country—
although this may be subject to change in the post-11 September 2001 era.
Cherif Bassiouni’s analysis of 22 categories of international crimes revealed that the conventions in which they were contained demonstrated the following 10 penal characteristics:
(1) Explicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or as a crime; (2) implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like; (3) criminalisation of the proscribed conduct; (4) duty or right to prosecute; (5) duty or right to punish the proscribed conduct; (6) duty or right to extradite; (7) duty or right to cooperate in prosecution, punishment (including judicial assistance in penal proceedings); (8) establishment of a criminal jurisdictional basis (or theory of criminal jurisdiction or priority in criminal jurisdiction); (9) reference to the establishment of an international criminal court or international tribunal with penal characteristics (or prerogatives); and (10) elimination of the defence of superior orders.19
16 Y Dinstein, ‘International Criminal Law’, 20Israel Law Review(1985), 206, p 221.
17 The authors have not found an international offence emanating independently from general principles of international law or the criminal laws of nations. For a contrary view, see CM Bassiouni (ed),International Criminal Law,1986, Dobbs Ferry, New York: Transnational, p 2.
18 78UNTS 277.
19 Op cit,Bassiouni, note 17, p 3.
No ICL convention embodies all 10 of these characteristics. Bassiouni discovered that crimes with a significant ideological or political component, such as aggression, contain the least number of these characteristics in contrast to those offences devoid of political considerations, such as drug offences. He concluded that, due to the decidedly penal nature of these treaties or their provisions, the existence of any one of the 10 aforementioned characteristics in a convention makes it part of ICL.20
When examining the general effect of treaties and their passing into the realm of customary law, one automatically looks at the status of ratifications. This does not necessarily paint a true picture. Treaties that encompass a wide variety of topics and, at the same time, expressly exclude reservations, or where certain reservations would be deemed to conflict with the object and purpose of a treaty, will, in most cases, attract few parties, not because other States fundamentally disagree with the entire convention, but simply particular aspects of it. A good example is the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.21This instrument, which penalises the procurement and enticement to prostitution as well as the maintenance of brothels, has received a marginal number of ratifications, simply because a large number of States possess legislation legalising voluntary prostitution. From a number of sources, such as the travaux preparatoiresof the Convention, from the global uniformity ascertained in national legislations, as well as from official pronouncements in international fora and other relevant treaties, it is beyond doubt that the enticement to and maintenance of all forms of involuntary prostitution constitute international offences under customary law. Thus, even though the Convention is not widely ratified, one of the acts it criminalises is clearly an offence under customary law.
Where international custom criminalises certain conduct, the incumbent court must also satisfy itself that the particular offence is ‘defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible’.22In the Vasiljevicjudgment, the Prosecution charged the accused,inter alia,with the offence of Violence to life and person’. The Trial Chamber was faced with the decision whether the definition of the offence was of sufficient clarity in order to satisfy the requirements of the principlenullum crimen sine lege. Despite the existence of the offence in the ICTY Statute, the Trial Chamber very boldly stated that in the absence of any clear indication in the practice of States as to what the definition of the offence of ‘Violence to life and person’ may be under customary law, it was not satisfied that such an offence giving rise to individual criminal responsibility exists under that body of law.23
Every offence prescribed in treaties or custom must ultimately be implemented into national law through an act of legislation. This process is followed not only where the offence is not precisely defined in the treaty, but also where it is set out in detail in its constitutive instrument. The national legislator might wish further to elaborate the substantive or procedural elements of the offence, and/or adapt it to domestic exigencies, but should be guided in this respect by the framework
20 Op cit,Bassiouni, note 17, p 4.
21 96UNTS 271.
22 ICTY Prosecutor v Vasiljevic,Judgment (29 November 2002), Case No IT-98–32-T, para 201.
23 Ibid,para 203.
established in the relevant treaty. A State that violates its treaty obligations by either failing to incorporate a treaty into its domestic legal system, or by omitting fundamental aspects of the treaty from its implementing statute, will generally be held liable vis-à-vis other contracting parties. In the field of ICL there may be great divergence in the views of States during the negotiation of a treaty. Where the treaty is finally adopted through a compromise the divergence remains, and in the absence of a contrary provision there is no reason why a State party cannot adopt implementing legislation that helps to supplement or fortify the provisions of a weak treaty. A State may decide, for example, that the 1977 Protocol II Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non- International Armed Conflicts24does not cover enough offences, nor does it establish a high enough gravity, nor sufficient jurisdictional bases. Such fortifications to ICL treaties should be accepted with extreme caution however, as long as they: are not expressly or tacitly prohibited; do not conflict with the object or purpose or other obligations under that treaty; and they, moreover, do not violate the rights of the accused.
The practical difference between offences clearly specified under international law, and those whose further elaboration is left to contracting States, relates primarily to the removal of perplexities associated with the negotiation and drafting of definitions at preparatory conferences. If it is felt that, to get more States on board, a well signed convention is more important than a ‘strong’ convention, specificity, depth, or other elements that were initially envisaged to be included in the convention may have to be sacrificed. Ultimately, the gravity of an offence as a universal crime is devoid of significance if political or other considerations prevent prosecution or other criminal enforcement action. Thus, while several instances of genocide have occurred since 1948 no action was taken at either national or international level until the creation of the ad hoc tribunals for Yugoslavia and Rwanda in 1993 and 1994, respectively.
Although the majority of international penal proscriptions require that each crime have an international or transnational element, which is based on the nature of the violative conduct, the nationality of the offender or the victim, or its impact, these two elements (the international or transnational) are not generally required in the international criminalisation process.25 This was clearly demonstrated by the elevation of breaches of humanitarian law, applicable in non-international armed conflicts, to the status of international offences entailing the individual responsibility of the offenders.26Non-international armed conflict violations do not by their nature possess international or transnational elements and are confined to a single territory, unless other States decide to intervene. This development further shows the evolution of the international society in regulating areas otherwise falling within the exclusive domain of States, thus eroding the principle of domestic jurisdiction.
In conclusion, the prohibition of certain conduct by treaty or custom always entails the criminal liability under international law of the offender, irrespective of whether
24 1125 UNTS 609.
25 For a contrary view, seeop cit,Bassiouni, note 17, p 24.
26 Tadicappeals jurisdiction decision (1995), para 134.
the prohibited conduct is defined as a universal crime or an offence to be further elaborated through domestic law. This represents the first step in the criminalisation process. In the dawn of the 21st century, one should dismiss the notion espoused in 1950 by Schwarzenberger that ICL is ‘merely a loose and misleading label for topics which comprise anything but international criminal law’; he argued further that whatever the content of these rules, there is no evidence that they are endowed with a prohibitive character and specific penal sanctions.27Schwarzenberger grounded his argument on the fact that, in the absence of international enforcement mechanisms, the concept of offences against the law of nations was redundant, unless regulated and enforced before a domestic setting, believing that ICL could not function outside each individual State. This led him to believe that ICL was, in fact, domestic criminal law. He also argued that sovereign States could not and would not agree to being held liable for State crimes, a notion that now seems to be settled within the ranks of the International Law Commission and generalopinio juris.28 Next, we will examine the final step of the international criminal process, which comprises the enforcement of substantive ICL.