International Crimes

Assignment #1
Session –2019-20
Submitted to
Dr. Meenakshi Punia
(Assistant Professor , Dept. of Law )
Prepared by : Shameem Khan
LL.M. Criminal& Security Law -2nd Sem.
SARDAR PATEL UNIVERSITY OF POLICE,SECUIRTY & CRIMINAL JUSTICE,
JODHPUR –INDIA

INTERNATIONAL CRIME
Discipline : Law
Subdiscipline : International Criminal Law

Assigned task #
A. Define International Crimes & Examine Crimes under International
Law
B. Imposing of Criminal liability
C. Excluding Criminal responsibility

A. Define International Crimes
 International Criminal law ?
• International Criminal Law (ICL) is a relatively new and constantly
developing branch of public international law
• By criminalizing gross violations of human rights and serious violations of
international humanitarian law1.
• ICL provides criminal sanctions that apply to all perpetrators, including
those at the highest political and military levels who engage in international
crime
• the international legal regime that enables perpetrators of war crimes,
crimes against humanity and genocide to be prosecuted.

 Domestic Crimes V/s International Crimes
Ref. -- Diakonia, Legal Brief, December 2013
[International Crimes and Accountability]

 Typology of International Crimes ?
• According to IHL -
1. War Crimes
2. Crimes against Humanity
3. Genocide
4. Torture

1. War Crimes -
• The term “war crimes” refers to serious breaches of international
humanitarian law committed against civilians or enemy combatants during
an international or domestic armed conflict
• for which the perpetrators may be held criminally liable on an individual
basis
• derived primarily from the Geneva Conventions of 12 August 1949
• Additional Protocols I and II of 1977, and the Hague Conventions of 1899
and 1907.
• Their most recent codification can be found in article 8 of the 1998 Rome
Statute for the International Criminal Court (ICC).

• Grave breaches of the Geneva Conventions such as:
i. Willful killing, or causing great suffering or serious injury to body or health
ii. Torture or inhumane treatment
iii. Unlawful wanton destruction or appropriation of property
iv. Forcing a prisoner of war to serve in the forces of a hostile power
v. Depriving a prisoner of war of a fair trial
vi. Unlawful deportation , confinement or transfer
vii. Taking hostages
viii. Directing attacks against civilians
ix. Directing attacks against humanitarian workers or UN peacekeepers
x. Bodo League massacre during the Korean War in 1950
xi. Directing attacks against humanitarian workers or UN peacekeepers
xii. Killing a surrendered combatant

2. Crimes against Humanity
• Crimes against Humanity are serious human rights violations
committed as part of a widespread or systematic attack against a
civilian population
• Many courts, including the International Criminal Court, require proof
that the conduct formed part of a governmental or organizational
policy
• UN report in 1948 referred to the usage of the term "crimes against
humanity" in regard to the Armenian massacres as a precedent to
the Nürnberg trial and Tokyo trial

Crimes against Humanity cont…
i. Crimes against humanity can be committed in numerous ways,
ii. Torture;
iii. murder;
iv. extermination;
v. enslavement;
vi. deportation or forcible transfer;
vii. sexual violence;
viii.persecution;
ix. imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law and the crime of apartheid.
Leopold II , King of the
Belgians and de
facto owner of the Congo
Free State who was the first
person accused of crimes
against humanity

International Criminal Court
Article 7 of the treaty stated
• Murder
• Extermination;
• Enslavement
• Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
• Torture
• Rape sexual slavery enforced prostitution forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with
any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• Enforced disappearance of persons;
• The crime of apartheid
• Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health;

3. Genocide
• Genocide: takes place when certain act or acts are committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group
• It may involve killings, causing serious bodily harm, inflicting conditions of
life calculated to bring about its physical destruction, imposing measures
intended to prevent birth, or forcibly transferring children of the group to
another group.
• The term genocide is often misused as the crime is not one which is
necessarily defined by numbers, but is defined by the specific intent of the
perpetrators to not only harm the victims but done to destroy the group as
such.
• Examples included the Holocaust and the Rwandan genocide of 1994.

Article 2 0f ICTR
• Since it was initially formulated in 1948, in article 2 of the Convention on
the Prevention and Punishment of the Crime of Genocide, the definition of
‘genocide’ has remained substantially the same. Article 6 of the Rome
Statute borrows from this Convention
• for example, defines the crime of genocide as “any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group

Article 2 0f ICTR
• Genocide means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as such
i. Killing members of the group;
ii. Causing serious bodily or mental harm to members of the group;
iii. Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
iv. Imposing measures intended to prevent births within the group;
v. Forcibly transferring children of the group to another group

4. Torture
• Torture: is the intentional infliction of severe suffering or pain whether
physical or mental, upon a person in the custody or under the control of the
accused.
• It does not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions.
• Depending on the context, under international law an act of torture may be
classified as a crime in itself, war crime, an act of genocide or a crime
against humanity
• It is important to note that the specific elements of these different
international crimes are not identical.

Forms of criminal responsibility
• Individual criminal responsibility : International criminal law allows for
individuals to be held criminally responsible not only for committing war crimes,
crimes against humanity and genocide, but also for attempting, assisting in,
facilitating or aiding and abetting the commission of such crimes. Individuals may
also be held criminally responsible for planning and even instigating the
commission of such crimes
• Command responsibility : Violations of international criminal law can also result
from a failure to act. Armed forces or groups are generally placed under a
command that is responsible for the conduct of its subordinates. As a result, in
order to make the system effective, hierarchical superiors should be held to
account when they fail to take proper measures to prevent their subordinates
from committing serious violations of international humanitarian law. They may
therefore be held to be criminally responsible for criminal activities to which they
made no personal contribution.

• Immunity Immunities :
flow from the idea of State sovereignty. Traditionally, State representatives were
granted immunity from foreign jurisdiction. The purpose of immunity is to allow
State representatives to effectively exercise their official functions and represent the
State in international relations. Two types of immunity have emerged.
• The ICTY, ICTR and ICC Statutes
explicitly exclude the availability of
functional immunities in cases of
international crimes (Art. 7(2), ICTY
Statute; Art. 6(2), ICTR Statute; Art.
27(1), ICC Statute). Only the ICC
Statute expressly excludes the
availability of personal immunities in
cases of international crimes (Art.
27(2)).
Indeed, the ICC Statute goes so far as to require States to
remove immunities regarding the perpetration of
international crimes by enacting appropriate legislation in
their national law (Arts 27 and 88). In practice, the ICTY
indicted two sitting Heads of State although the court’s
jurisdiction was only effectively exercised once they had
left office. The waiver of immunity is qualified in Article
98(1) of the ICC Statute with respect to non -party States

B. Imposition of Criminal responsibility
 Modes of Criminal Liability -
• Perpetrators of international crime may be convicted on the basis of their
own direct acts or omissions
• Other modes of criminal liability including ordering and facilitating a crime
• Where international crimes form part of a broad and complex state policy, a
wide range of perpetrators may be convicted under different modes of
liability.

 What follows is a list of the most common
modes of liability applied by International criminal courts and
tribunals:
1. Committing (act or omission): Physically perpetrating a crime through
an act or culpable omission.
2. Indirect perpetration: Using another person to physically carry out the
crime, while controlling the will of the direct perpetrator.
3. Joint Criminal Enterprise (JCE): Contributing to an activity of several
individuals embarking on criminal activity with a common purpose that is
carried out either jointly or by some members of this plurality of persons
4. Co-perpetration: Being directly involved in the commission of the crime,
without necessarily being a principal actor. For example being a member
of a gang who attacks an individual, without necessarily performing the
physically acts constituting the assault.

modes of liability cont….
5. Aiding and abetting: Substantially contributing to the perpetration of the
crime.
6. Attempt: Taking a substantial step towards committing a crime, where
independent circumstances prevent the crime from occurring.
7. Planning: Contemplating, planning and designing the commission of a
crime, regardless of whether the crime was actually committed.
8. Ordering: Using a de jure or de facto authority to instruct another person
to commit an offence.

modes of liability cont….
9. Superior/command responsibility: Failure by a superior to prevent
or punish the commission of a crime by a subordinate. If the
superior knew, or should have known, that subordinates were going
to commit a crime, but did nothing to prevent it, they can be held
criminally responsible. Failure to take any action against
subordinates who have already committed a crime also leads to
criminal responsibility.
10. Conspiracy: Agreeing to commit an offence. In international law,
the crime of conspiracy only exists in relation to genocide.
11. Incitement: instigating, inducing, encouraging, or persuading the
perpetration of the crime.

C. Excluding Criminal liability
• &DEFENCES
Amenities &
Immunities

“Defences” or grounds for excluding liability,
including:
Official capacity;
Superior orders;
 Self-defence;
Duress and necessity;
Lack of or diminished mental capacity;
Intoxication;
Alibi;
 Mistake of law and fact;
Military necessity;
Tu quoque; and
Reprisal

IMMUNITIES :mode of excluding liability
• International law, two types of immunity are broadly recognised:
1. Functional immunity
2. Personal immunity
• These immunities are recognised on the basis of the sovereignty of
states, and therefore only apply to prosecutions in national courts.
Neither functional nor
personal immunities are
a bar to trials before the
international or hybrid
courts.

mode of excluding liability : cont.……
• ICTY/ICTR Statutes Articles 7(2)/6(2)
‘‘ Irrelevance of official capacity The official position of any accused person, whether as
Head of State or Government or as a responsible Government official, shall not relieve such
person of criminal responsibility nor mitigate punishment.’’
• ICC Statute Article 27 Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of
a Government or parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this Statute, nor shall it, in
and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.

• Application of immunities :
• Functional immunity (immunity rationae materiae) applies to
government officials acting in their official capacity. It protects conduct, and
extends widely to anyone who carries out state functions
• Personal immunity (immunity rationae personae) applies to high level
government officials, such as heads of state or diplomats. It is unclear
exactly which government officials benefit from personal immunity.
Personal immunity protects the person, and is absolute while the person is
in office.
e.g., Bouterse (2000) 51 NEDERLANDSE JURISPRUDENTIE
The International Court of Justice
found that there is no exception to
personal immunity in national courts,
even for serious international crimes.

 AMNESTIES
• Amnesties are laws that preclude criminal prosecutions (and sometimes
civil claims) in the state in which they are issued.
• Amnesties have a long history.
• The status of amnesties in international law is unclear
• There is some indication that amnesties are no bar to prosecution for some
crimes, such as torture
• The SCSL Appeals Chamber has stated that a “norm that a government
cannot grant amnesty for serious violations of crimes under international
law is developing under international law”

 AMNESTIES
• The Inter-American Court of Human Rights has stated that :
This Court considers that all amnesty provisions, provisions on the prescription and the
establishment of measures designed to eliminate responsibility are inadmissible, because they are
intended to prevent the investigation and punishment of those responsible for serious human rights
violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all
of them prohibited because they violate non-derogable rights recognised by international human
rights law.
Cite….. Case of Barrios Altos v. Peru, Series C No. 75
[2001], Inter-Am. C.H.R. 5, 14 March 2001.

ICC Statute
Article 31: Grounds for excluding criminal responsibility
• 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally
responsible if, at the time of that person's conduct:
(a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of
his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;
(b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her
conduct, or capacity to control his or her conduct to conform to the requirements of law, unless 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;
(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential
for the survival of the person or another person or property which is essential for accomplishing a military mission, against an
imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property
protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for
excluding criminal responsibility under this subparagraph;
(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by 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 acts
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.

Article 31 cont….
2. The Court shall determine the applicability of the grounds for excluding criminal responsibility
provided for in this Statute to the case before it.
3. At trial, the Court may consider a ground for excluding criminal responsibility other than those
referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article
21. The procedures relating to the consideration of such a ground shall be provided for in the Rules
of Procedure and Evidence.

ICC Statute
Article 32: Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the
mental element required by the crime.
2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of
the Court shall not be a ground for excluding criminal responsibility. A mistake of law may,
however, be a ground for excluding criminal responsibility if it negates the mental element
required by such a crime, or as provided for in article 33.

Grounds for excluding criminal responsibility :
 Self – Defence -
• Under the Rome Statute, defence of yourself, another person, or
property can be grounds for excluding criminal liability
• Although not expressed in its Statute, the ICTY considers self-defence
to be an applicable defence under customary International law
• Self-defence cannot be used to excuse a deliberate attack upon a
civilian population
…… Milan Martid, Case No. IT-95-11-A, Appeal Judgement, 8 Oct. 2008

 Lack Of Mental Capacity And Diminished Mental Responsibility :
• Lack of mental capacity constitutes a complete defence to the charge.
• The defendant’s diminished mental responsibility is relevant to the sentence to be
imposed and is not a defence leading to an acquittal.
• The relevant principle of law upon which both the common law and the civil law
systems are based is that the defendant’s diminished mental responsibility is
relevant to the sentence to be imposed and is not a defence leading to an acquittal.
.... Zejnil Delalid et al. (Čelibidi), Case No. IT-96-21-A, Appeal Judgement

 INTOXICATION –
Intoxication can also exclude criminal liability at the ICC. If the accused, at the time of
conduct, was intoxicated to the point that they could not understand the lawfulness of or control
their behaviour, they cannot be held guilty. It is notable that the intoxication must destroy the
accused’s mental capacity—impairment, even if extreme, is not enough.
 ALIBI - if a defendant raises an alibi, he is denying that he was in a position to commit
the crime. By raising that issue, the defendant requires the prosecution to eliminate the
reasonable possibility that the alibi is true (Rome Statute Article 33)
• A successful alibi does not require conclusive proof of an accused’s whereabouts.
• The alibi need only raise reasonable doubt that the accused was in a position to commit the
crime
• The ICC also recognises alibi as a defence, although it is not included in the Rome Statute.
Under Rule 67(B)(i)(a) of the ICTY RPE and Rule 79 of the ICC RPE, the defence must inform
the prosecution whether there is an alibi and disclose information about the alibi.

 MILITARY NECESSITY –
The ICTY Appeals Chamber has held that military necessity is not a
defence for attacks on civilians.
(Pavle Strugar, Case No. IT-01-42-A, Appeal Judgement, 17 July 2008)
• In Article 8(2)(a)(iv), it notes that extensive destruction of property is
a war crime when it is not justified by military necessity and is carried
out unlawfully and wantonly.

 TU QUOQUE – (currently not applicable )
• The tu quoque argument posits that breaches of international humanitarian
law, being committed by the enemy, justify similar breaches by the other
party to the conflict
• The tu quoque defence has no place in contemporary international
humanitarian law

REPRISALS –
• Reprisals against civilians are forbidden in all armed conflicts
• Reprisals consist of unlawful acts that are undertaken in response to
unlawful acts committed by the opposing armed force in an effort to
persuade this force to desist from committing further unlawful acts.
• Under the jurisprudence of the ICTY, reprisals against civilians are
forbidden in all armed conflict
…Martid, Decision on the Review of Indictment, 8 March 1996

The Crux
• Massacres of civilians, rape, forcible transfer, torture, indiscriminate bombings,
apartheid and persecution all violate the most basic tenants of humanity, morality
and human dignity.
• Over the last century, the international community has reaffirmed the importance
of the protection of these basic values by prohibiting the above conduct
• 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
• Occupied Palestinian Territory has long been at the forefront of international
political discourse. Yet despite voluminous documentation regarding gross
violations of human rights and serious violations of IHL, there has been little
accountability for many criminal acts

International Crimes

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