International criminal-law

1
INTERNATIONAL CRIMINAL LAW
By
MIAN ALI HAIDER
L.L.B., L.L.M. (CUMLAUDE) U.K.

SESSION TRAIL
• INTRODUCTION
• SOURCES OF INTERNATIONAL CRIMINAL LAW
• APPLICATION OF SOURCES
• HOW IT WORKS
• INTERNATIONAL CRIMINAL OFFENCES
• THE CONCEPTS OF GENERAL PRINCIPLES
• NUREMBERG WAR CRIME TRAILS
• TOKYO TRIALS
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The New World Order
“…to establish a new world order
wherein the rule of law rather than
the law of the jungle will govern
the conduct between nations…”
--Republican President George Bush,
after launching the war against Iraq

4
• “To hell with international law!
You’ve got a choice to make. You’re
either for us or against us, and I
only hope for your sake you make
the right choice.”
• --Republican Senator Alfonse D’Amato
• (New York)
The New World Order

PUBLIC INTERNATIONAL LAW
• In general, public international law governs
the actions of states,
• How states interact with each other and
individual citizens,
• Public international law involves rules and
principles that deal with the conduct, rights
and obligations of states and international
organisations, as well as dealing with relations
among states 5

• International criminal law is a subset of public
international law.
• While international law typically concerns inter-
state relations, international criminal law concerns
individuals.
• In particular, international criminal law places
responsibility on individual persons—not states or
organisations—and proscribes and punishes acts
that are defined as crimes by international law.
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• International criminal law is a relatively new body of law, and
aspects of it are neither uniform nor universal.
• For example, some aspects of the law of the ICTY are unique to
that jurisdiction, do not reflect customary international law and
also differ from the law of the ICC.
• Although there are various interpretations of the categories of
international crimes, this lecture will deal with crimes falling
within the jurisdiction of international and hybrid courts,
including the ICTY, ICTR, SCSL, ECCC, and the ICC.
7

• These crimes comprise Genocide, Crimes Against
Humanity, War Crimes and the Crime Of Aggression.
• They do not include piracy, terrorism, slavery, drug
trafficking, or other international crimes.
• International criminal law also includes laws,
procedures and principles relating to modes of
liability, defences, evidence, court procedure,
sentencing, victim participation, witness protection,
mutual legal assistance and cooperation issues
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SOURCES OF ICL
• As international criminal law is a subset of public international
law, the sources of ICL are largely the same as those of public
international law. The five sources of ICL used by international
and hybrid criminal courts generally are
1) treaty law;
2) customary international law (custom, customary law);
3) general principles of law;
4) judicial decisions (subsidiary source); and
5) learned writings (subsidiary source).
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SOURCES OF ICL
• The sources of law can sometimes overlap and have a dynamic
relationship.
• For example, a treaty can reflect, become or influence the
development of customary international law and vice versa.
• A judgement of an international court may influence the
development of treaty and customary international law.
• Generally, international and hybrid courts use treaties and custom
as the main sources of international criminal law, in addition to
their own governing instruments (which may include treaties).
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SOURCES OF ICL
The five sources of ICL roughly correlate with the classic
expression of the sources of international law contained in Article
38(1) of the Statute of the International Court of Justice (ICJ):
a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
b) international custom, as evidence of a general practice accepted as
law;
c) the general principles of law recognized by civilized nations;
d) […] judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
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APPLICATION OF SOURCES
• The relevance and importance of these sources in national criminal
jurisdictions differ between countries.
• For example, in some jurisdictions, the direct source of international criminal
law is national legislation incorporating ICL.
• In this instance, treaty and customary international law cannot be used as a
direct source.
• Conversely, some courts can apply treaty law but not customary international
law, while in others, custom can be applied as well.
• Moreover, even if national legislation is the direct source of the applicable
law, international criminal law treaties, commentaries on them and
international judicial decisions are often used as aids to interpret the national
law and are sometimes considered persuasive (not binding) precedent.
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APLICABLE SENARIOS
• National courts may not find it necessary to refer directly to international law
sources when the content and meaning of the applicable national laws (including
incorporated or otherwise applicable international law) are unambiguous.
• National legislation and judicial decisions can be evidence of customary
international law—but they are not directly applied by international courts.
Indeed, the ICTY Appeals Chamber has held that “domestic judicial views or
approaches should be handled with the greatest caution at the international level,
lest one should fail to make due allowance for the unique characteristics of
international criminal proceedings”.
• At the ICC, the Rome Statute, Elements of Crimes, and Rules of Procedure and
Evidence provide the primary sources of law. Treaties and principles and rules of
international law are applied once the primary sources have been utilised, and
finally, general principles of law, including relevant and appropriate national
laws are considered.
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TREATY LAW as a SOURCE
ICL has many treaty sources. These range from obvious examples such as the
Genocide Convention and the grave breaches provisions of the four 1949
Geneva Conventions to relevant human rights treaties and treaties that are not as
widely ratified as the Geneva Conventions, including the:
– Rome Statute of the International Criminal Court;
– 1977 Additional Protocol II to the Geneva Conventions (AP II);
– Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights);
– Pact on Security, Stability and Development in the Great Lakes Region
(2006) and its Protocol on the Prevention and the Punishment of the Crime of
Genocide, War Crimes and Crimes against Humanity and all forms of
Discrimination (Great Lakes Pact and Protocol); and
– Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. 14

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Foundations of International
Criminal Law
• Nuremberg Principles
– Genocide
– War Crimeschildren,
– Crimesagainst Humanity
[extended to violenceagainst women and children,
including internal violence]
• Security Council ad hoc Courts[ViolateArticle2]
• ICC Statute [by treaty in theabsenceof alegislature]
– Add Aggression [ > 7 yearsafter definition.]

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A New World Order
• UN Charter Reform RouteClosed by Article108
• General Assembly Resolution Treaty Route
– Rome International ICC Statute Treaty Conference
– International ICC Statute Treaty: Friday 17 July 1998
[Approved: 120, 7, 21, with theU.S. administration leading
theopposition of Israel, Iraq, Libya, Mexico...]
– Treaty Revision Conference in Seven Years
• Define Aggression
• Extend Jurisdiction?

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International Criminal Court
Authorization
Article 95
“Nothing in the present [UN] Charter
shall prevent Members of the United
Nations from entrusting the solution of
their differences to other tribunals by
virtue of agreements already in
existence or which may be concluded in
the future.”

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International Criminal Court
“There can be no global justice unless the worst of
crimes--crimes against humanity--are subject to
the law.
In this age more than ever we recognize that the
crime of genocide against one people truly is an
assault on us all--a crime against humanity.
The establishment of an International Criminal
Court will ensure that humanity’s response
will be swift and will be just.”
Kofi Annan

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The UN and the ICC
Article 2
“The Court shall be brought into
relationship with the United Nations
through an agreement to be approved by
the Assembly of States Parties to this
Statute and thereafter concluded by the
President of the Court on its behalf.”

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Criminal Jurisdiction of the ICC
Article 5
• (a) “The crime of genocide;
• (b) “Crimes against humanity;
• (c) “War crimes;
• (d) “The crime of aggression”
(once a provision is adopted...defining the crime).

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Genocide
Article 6
• (a) “Killing members of the group;
• (b) “Causing serious bodily or mental harm to members
of the group;
• (c) “Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in
whole or in part;
• (d) “Imposing measures intended to prevent births
within the group;
• (e) “Forcibly transferring children of the group to
another group.”

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Crimes against Humanity
Article 7
• (a) “Murder;
• (b) “Extermination;
• (c) “Enslavement;
• (d) “Deportation or forcible transfer of population;
• (e) “Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of
international law;“

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Article 7
• (f) “Torture;

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Article 7
• (f) “Torture;
• (g) “Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity;
• (h) “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;”

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Article 7
• (i) “Enforced disappearance of persons;
• (j) “The crime of apartheid;
• (k)” Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health.”

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Article 7
(f) “’Forced pregnancy’ means the unlawful
confinement, of a woman forcibly made
pregnant, with the intent of affecting the ethnic
composition of any population or carrying out
other grave violations of international law. This
definition shall not in any way be interpreted as
affecting national laws relating to pregnancy;”

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War Crimes [Article 8]
• (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely,
any of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
• (i) Willful killing;
• (ii) Torture or inhuman treatment, including biological experiments;
• (iii) Willfully causing great suffering, or serious injury to body or health;
• (iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
• (v) Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
• (vi) Willfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
• (vii) Unlawful deportation or transfer or unlawful confinement;
• (viii) Taking of hostages.

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War Crimes [Article 8]
(b) (viii) “The transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian
population into the territory it occupies, or the
deportation or transfer of all or parts of the
population of the occupied territory within or
outside this territory.”
[“ Ethnic Cleansing”, ]

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War Crimes
Article 8
“2(b) Other serious violations of the laws and customs
applicable in international armed conflict, within the
established framework of international law, namely, any
of the following acts:” [27 items, including
conscription of children]
[Legitimizes war by defining rules of engagement.]
[Aggression will be illegal (and still undefined), but not war.]

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War Crimes
Article 8
2(c) “In the case of an armed conflict
not of an international character,
serious violations of Article 3 common
to the four Geneva Conventions of 12
August 1949, …”
[Erodes national sovereignty]

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War Crimes
Article 9 Elements of Crimes
1. “Elements of Crimes shall assist the Court
in the interpretation and application of
articles 6, 7 and 8. They shall be adopted by
a twothirds majority of the members of the
Assembly of States Parties.”
[Legislation by the Assembly of States Parties.
Circumvents the UN and its Security Council!]

Introduction: The Concept of General Principles
• Part 3 of the Rome Statute sets out fundamental principles applicable for
international crimes.
• Previous tribunals such at the International Military Tribunals of Nuremberg and
Tokyo and even the ICTY and ICTR do not contain anything similar.
• Reasons why no previous attempt:
– In the days of the International Military Tribunals, the concept of international
criminal law was relatively new. The ICC Statute is the result of evolution in
this field.
– Previous tribunals were a spontaneous political creation.
– Previous tribunals were established to deal with crimes that had already
happened. They had a limited mandate both in terms of situation and time.
– The ICC is a court for future crimes and more importantly is a permanent court.

INTRODUCTION: THE CONCEPT OF GENERAL
PRINCIPLES
• Part 3 is a major achievement. It represents an attempt to merge several
criminal justice systems into one legal instrument. It attempts for the first time
to codify concepts such as modes of criminal participation, the mental element
required for crimes and the defences that are available.
• Potential advantages:
– Judges discretion to develop principles of criminal law will be limited
– Provide a legal framework for the Court
– Ensure Predictability – has an effect on rights of accused
– Promote consistent jurisprudence and practise.

ARTICLE 21: APPLICABLE LAW
• Article 21 is an important and exciting innovation. It creates its own regime of sources
of law and ranks them:
– (a) Statute, Elements of Crimes and its Rules of Procedure and Evidence.
– (b) Applicable treaties and the principles and rules of international law including
the established principles of the international law of armed conflict.
– (c) General principles of law derived from national laws of legal systems of the
world including as appropriate the national laws of the States that would normally
exercise jurisdiction over the crime.
• Previous international criminal tribunals make no reference to the sources of law.
• Previous international criminal tribunals have tended to turn to Article 38 of the
International Court of Justice:
– international treaties.
– international custom.
– general principles of law recognised by civilised nations.

Article 21: Applicable law
• Article 21(1)(a): The Rome Statute, together with its Rules of Procedure and Evidence
and Elements of Crimes, are the primary source or law.
– Art 9 and Art 51 state that the Statue overrides the RPE and Elements in the case
of conflict
• Bashir: The Court can not look to other sources of law unless
– lacuna in the Statute, Rules and Elements
– lacuna can not be filled by interpreting the Statute in accordance with Article 31
and 32 of the Vienna Convention on the Law of Treaties
• Article 21(1)(b):
– Corresponds to Art 38 of the ICJ
– Expressly refers to the international law of armed conflict - Perhaps an
opportunity to recognise certain defences not included in the Statute (e.g. reprisals
and military necessity).

Article 21: Applicable law
• Article 21(1)(c) General principles of law derived from national laws … including
as appropriate the national laws of the States that would normally exercise
jurisdiction over the crime.
– Hugely controversial.
– Can the ICC apply the national law of the State where the crime was
committed?
– Concern: law might vary depending on place of crime/nationality of accused.
• Special Court for Sierra Leone
– Concerns are exaggerated
– Judges will be extremely reluctant to adopt the national criminal laws of a
particular country.
• Lubanga
– “general principles” = adopting a comparative approach to criminal law.
– ICC will be reluctant to automatically import approaches taken by other ad hoc
tribunals: “precedents of the ad hoc tribunals are in no way binding and that
procedural rules and jurisprudence of the ad hoc tribunals are not automatically
applicable without analysis”.

ARTICLES 22 TO 24: NULLUM CRIMEN
• Articles 22 to 24 of the Rome Statute address the principle of legality:
– Article 22 sets out the principle of nullum crimen sine lege = an individual
may only be criminally responsible for conduct which was unambiguously
criminal at the time of its commission.
– Article 23 sets out the principle of nulla poena sine lege = an individual may
only be punished in accordance with the law.
– Article 24 sets out the principle of non-retroactivity = no individual shall be
criminally responsible under the Statute for conduct prior to its entry into
force (1 July 2002).

Articles 22 to 24: Nullum crimen
• Articles 22 to 24 are a gigantic step forward in international criminal law:
– Previously, the principle of legality was applied with a degree of
flexibility: See France et al. v. Goering:
• the maxim nullum crimen sine lege … is a general principle. To assert that it is
unjust to punish those who in defiance of treaties and assurances have attacked
neighbouring states without warning is obviously untrue, for in such
circumstances the attacker must know that he is doing wrong, and so far from it
being unjust to punish him, it would be unjust if his wrong were allowed to go
unpunished”.
• Reasons for the flexible approach:
– There was no significant body of international criminal law to draw from.
– Other tribunals were set up after the fact in order to deal with past crimes.
Flexibility was needed to pursue moral justice.
– The principle of legality has developed since the Second World War. See:
• Art 11 of Universal Declaration of Human Rights
• Art 15 of the ICCPR

Articles 22: Nullum crimen
Superiority of the Rome Statute
• Article 22: nullum crimen sine lege
– In contrast to other ad hoc tribunals, the Rome Statute contains a very
detailed list of crimes and combines the Statute with the Element of Crimes.
– Prohibits the extension of crimes by analogy: See Bemba case =
recklessness is excluded from Article 30 of the Statute.
– However, the ban on analogy faces a difficulty with Article 7(1)(k) of the
Statute which provides for the crime of “other inhumane acts of a similar
character”.
• Article 23: nulla poena sine lege
– Part 7 of the Rome Statute provides for imprisonment of up to 30 years or
life, fine and forfeiture.
– Does the Rome Statute go far enough?
– Current sentencing is heavily influenced by Judges personalities.
– Sentencing should be consistent.

Article 26:
Exclusion of jurisdiction over persons under eighteen
• Article 26 “The Court shall have no jurisdiction over any person who was
under the age of 18 at the time of the alleged commission of a crime”.
• Some countries (such as Israel) argued that the age should be lower and should
correspond to the age permitted for recruitment into the armed forces.
• With the exception of the Special Court for Sierra Leone, no other
international criminal tribunal has included a minimum age provision in its
Statute.
• This Issue has caused much moral debate.

Article 26:
Exclusion of jurisdiction over persons under eighteen
• Special Court for Sierra Leone
– The minimum age for prosecution is 15.
– The age of 15 was supported by former Secretary General Annan
– With the exception of Amnesty International, several child rights
groups and Unicef objected.
• ICC
– International criminal law enforcement is directed at those who
bear the greatest responsibility for the core crimes.
– It is unlikely that an accused would be under the age of 18.
– Prosecutor is going to be very reluctant to indict a juvenile.
– Prosecution of juveniles is complicated.
• Juveniles have to be tried differently
• Rehabilitative sentences need to be considered

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.

Article 27: Irrelevance of official capacity
• Art 27 – Contains two distinct concepts (official capacity and personal immunity).
• Art 27(1) - doctrine of “official capacity”: State officials cannot be subjected
to criminal responsibility for acts carried out in the name of the State.
• Article 7 of the Charter of the International Military Tribunals provides:
– “The official position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as freeing them
from responsibility or mitigating punishment”
• Articles 6(2) and 7(2) of the ICTR and ICTY respectively contain a similar provision:
– “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.”
• ICTR has gone even further in holding that an accused’s official capacity may in fact
be an aggravating factor. See Kambanda

Article 27:Irrelevance of official capacity
• Art 27(2) - personal immunities under customary international law: “a reciprocal
respect among states for their sovereignty and the right to protect officials
representing foreign states abroad from possible abuses by the territorial state”. per
Professor Gaeta.
• No other international criminal tribunal has a similar provision in its Statute.
• Democratic Republic of Congo vs Belgium (Arrest Warrant Case)
– An incumbent or former Minister for Foreign Affairs may be not subject to
criminal proceedings before a national court but may be subject to prosecution
in international criminal courts. The Court relied on Article 27(2) in making its
finding.
• Special Court for Sierra Leone – Charles Taylor
– The Court interpreted the Arrest Warrant case as consisting of an exception to
personal immunity when international crimes are involved.

• ICC – Omar AlBashir
• An arrest warrant was possible because:
– The purpose of the ICC was to end impunity.
– Article 27 was a core principle of the Rome Statute.
– Chamber need only to apply the ICC Statute.
– The Security Council accepted that the Court would exercise it authority in
accordance with its Statute.
• The reasoning has been criticised
– Rome Statute is based on a treaty which requires consent.
– State Parties to the ICC have waived their immunity.
– Bashir decision fails to distinguish betweens the ICC’s powers to issue an arrest
warrant and the duties of States to comply with it.
– Art 27(2) does not apply to Non-State parties. Art 98(1) of the Rome Statute is
evidence of this:
• “The Court 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 …”

• Libya: Colonel Muammar Gaddafi
– An arrest warrant was sought.
– Libya is not a signatory to the Rome Statute
– Several countries such as Turkey have offered him guarantees should he
leave
– Are these guarantees enforceable? Does it make a difference if the
guarantor State is a signatory to the Rome Statute?
– Adopting the current approach in Bashir –it is uncertain.
– It is arguable that such a guarantee is possible, even if made by a State
Party to the ICC.

Article 28:
Responsibility of commanders and other superiors
• Art 28(1): A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes committed by forces
under his or her effective command and control, or effective authority and
control where:
– (i) That military commander or person either knew or should have known that the subordinates
were committing or about to commit such crimes; and
– (ii) That military commander or person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
• Art 28(2): all other superiors - A superior shall be criminally responsible for
crimes committed by subordinates under his or her effective authority and
control, where:
– (i) The superior either knew, or consciously disregarded information which clearly indicated,
that the subordinates were committing or about to commit such crimes;
– (ii) The crimes concerned activities that were within the effective responsibility and control of
the superior; and
– (iii) The superior failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent authorities for

Article 28:
Responsibility of commanders and other superiors
Rome Statute
• Art 28 distinguishes between
civilian and military superiors.
• Art 28 mental standard is the
superior knew, should have known
or consciously disregarded the fact
that subordinates were about to or
were committing crimes.
• Art 28 requires a causation element
linking the superior’s failures to the
crimes committed.
• Art 28 has no express provision
requiring a superior to punish for
offences already committed.
Other Ad Hoc Tribunals
• The ad hoc tribunals make no such
distinction.
• ICTY (Art 7(3)) and ICTR (Art 6(3))
- knew or had reason to know that
the subordinate was about to commit
such acts or had done so.
• The ad hoc tribunals have no such
requirement.
• ICTY (Art 7(3)) and ICTR (Art 6(3))
- expressly state that liability may be
imposed on a superior for failing to
punish crimes already committed by
subordinates.

Article 33:
Superior orders and prescription of law
• Article 33 of the Rome Statute provides an accused who has acted pursuant to
an order of a Government or of a military or civilian superior, with the defence
of superior orders provided that:
– (a) The accused was under a legal obligation to obey the orders of the
Government or the superior in question;
– (b) The accused did not know that the order was unlawful; and
– (c) The order was not manifestly unlawful.
• Article 33(2) provides that orders to commit genocide or crimes against
humanity are manifestly unlawful.

Article 29:
Non-applicability of statute of limitations
• Article 29 confirms that there is no statute of limitations for crimes within
the jurisdiction of the Court.
• The extreme gravity of the crimes involved mean that society has an
indefinite interest in prosecution and punishment.
• This Article acts as a bar to States who might refuse to surrender an
individual to the Court on ground that offence was time barred under
national jurisdiction. per Professor Schabas

Article 30: Mental element
• Unless otherwise stated the mental requirement for crimes within the
jurisdiction of the Court is:
– Intent = to engage in a certain conduct or with respect to a consequence
when a person means to cause that consequence or is aware that it will
occur in the ordinary course of events.
– Knowledge = awareness that a circumstance exists or a consequence
will occur in the ordinary course of events.
• Professor Ambos contends that this provision could have gone further as
modern criminal law distinguishes between, purpose, knowledge,
recklessness and negligence.
• However, many of the crimes contain their own definition of mens rea. e.g.
genocide – requires specific intent.

Article 31:
Grounds for excluding criminal responsibility
• Articles 31 to 33 set out possible defences to crimes within the
jurisdiction of the Court.
• The Rome Statute is the first ICL instrument to attempt to codify
defences.
• Article 31 provides an non-exhaustive list of defences:
– Insanity
– Intoxication
– Self-Defence
– Duress/Necessity

Article 31:
Insanity
• Similar to the M’Naughton rules, a person shall not be criminally responsible if at the
time of the offence, he or she:
– Suffered from a mental disease;
– Suffered from a mental defect;
– Their capacity to appreciate the unlawfulness or nature of their conduct is
destroyed; or
– Their capacity to control their conduct to conform to the law is destroyed.
• This defence will be rarely invoked – ICC is focused on leaders.
• The Rome Statute is silent as to who bears the burden of proof required to assert this
defence and to what degree. Article 67 of the Statute prevents “any reversal of the
burden of proof or any onus of rebuttal”.

Article 31:
Intoxication
• A person shall not be criminally responsible if at the time of the offence,
he or she:
– Are in a state of intoxication
– That destroys their capacity to appreciate the unlawfulness or
nature of their conduct; OR
– Their capacity to control their conduct to conform to the law is
destroyed.
– UNLESS: the person was voluntarily intoxicated
• Concern among States about allowing voluntary intoxication for
international crimes.
• This defence will be rarely invoked – ICC focused on leaders not foot
soldier.

Article 31:
Self-Defence
• A person shall not be criminally responsible if at the time of the offence:
– There existed an imminent and unlawful danger to a person or property by
unlawful force; and
– The accused’s reaction was proportionate
• Applies to defence of self, another or property.
• In the case of defending property:
– Confined to war crimes.
– Defence of property must be essential for the survival of the person or another
person.
• Article 31(1)(c) - This is not collective self-defence which applies to States and is
governed by Article 51 of the UN Charter.
• Objective Test – Professor Ambos suggests that this has the effect of barring pre-
emptive strikes from being considered as self-defence.

Article 31:
DURESS/NECESSITY
• A person shall not be criminally responsible if at the time of the offence there
exists:
– A threat of imminent death or continuing or imminent serious bodily harm
against the person concerned or a third person made by other persons or
by circumstances beyond that person’s control;
– The person’s response is a necessary and reasonable reaction to avoid this
threat; and
– The person does not intend to cause a greater harm than the one sought to
be avoided person
• Article 31(1)(d) of the Rome Statute collapses this distinction between duress
and necessity.
• Inclusion resurrects the defence of duress and necessity which was rejected in
the ICTY case of Erdemovic.

Article 32: Mistake of fact or mistake of law
• Article 32 provides that a mistake of fact or law may be a defence.
However, this defence is based on the common law understanding of
mistake of fact or law.
• A mistake is only relevant when it can be shown that the mistake has
negated the mental element of the offence.
• Heavily criticised by academics and practitioners:
– Article 32 is superfluous and repetitious. It merely restates the
principles outlined in Article 30 of the Statute.
– It fails to appreciate the various nuances and types of mistakes that
may exist.
• Mistake of law:
– Ignorance of the law is no excuse
– Expressly makes exception for the defence of superior orders

CUSTOMARY INTERNATIONAL LAW
AS SOURCE
• Custom is generally understood as consisting of:
• STATE PRACTICE;
• The state practice must be consistent, uniform and general
among the relevant states, although it does not have to be
universa
• OPINIO JURIS;
• It can be defined as a general belief or acceptance among
states that a certain practice is required by law. This sense of
legal obligation, coupled with state practice, differentiates
custom from acts of courtesy, fairness or mere usage
60

AS SOURCE
• Treaties only bind states that are parties to them, whereas
general customary law binds all states and “local” custom
binds as few as two states only.
• Much of the content of substantive ICL exists in
customary law, whether or not the same rules
simultaneously exist in treaty law.
• It is generally more difficult to determine the content of
custom than that of treaty law.
61

AS SOURCE
In general, and depending on the circumstances, evidence of state
practice and opinio juris may include:
• diplomatic correspondence;
• official policy statements and press releases by governments;
• executive decisions and practices;
• opinions of government legal advisers;
• military manuals;
• comments on draft statements on international law by the International Law
Commission;
• authoritative commentaries on treaties;
• national legislation;
• national and international judicial decisions;
• contents of treaties; and
• the practice of international organisations and their organs, including, for example, UN
General Assembly and Security Council resolutions relating to legal questions. 62

GENERAL PRINCIPLES OF LAW AS
SOURCE
• Where no rule in custom or treaty law could be found, the ICC has on occasion
—and usually with some circumspection—considered general principles of law
in search of an applicable ICL rule.
• These principles are formulated through the process of examining the national
laws and practices of principal legal systems of the world in order to determine
whether the court could deduce a common approach.
• If a common approach exists, the court could derive a general principle of law
that could be applied in the ICL context
• Not every nation’s practices need to be reviewed—only enough to show that
most nations within the various systems of law (e.g., common law and civil law)
recognise a principle of law.
• Where a principle “is found to have been accepted generally as a fundamental
rule of justice by most nations in their municipal law, its declaration as a rule of
international law would seem to be fully justified”. Where national approaches
are too divergent, such a finding is precluded 63

64
Conclusions and Consequences
• Breaks open gridlock in UN Charter.
– U.S. government can’t obstruct through the
Security Council.
– Extra-UN World rule of law by treaty
statute with multiple legislatures and
affiliated tribunals?
– Opening for UN Human Rights Court?
• No more Security Council ad hoc courts?

65
Conclusions and Consequences
• ICC respects basic principles.
– Expansion of Nuremberg jurisdiction:
• Violence against women and children
• Aggression
• Non-international conflict
– Independent Prosecutor
– Independent Court
– Universal Applicability
– Major atrocities may receive some attention.
[East Timor, Guatemala, Myanmar, etc.,…]

Nuremberg War CrimeNuremberg War Crime
TrialsTrials
The Downfall of Nazi Germany

After the war, the Allies faced the task of
cleaning up the aftermath and punishing
war criminals.
• This marked the first time
leaders would be
criminally charged for
their actions during a
conflict.
• Rules for international
military tribunals had to
be prepared especially for
this trial, and it set a
precedent for the many to
follow soon after.

The Location
• The city of
Nuremberg, Germany
was chosen as the
location for the trials.
Once the site of huge
Nazi Party rallies, it
would now bring to
justice the former
leaders of that party.
• The seat of the
international military
tribunal was kept in
Berlin to appease the
Soviets.

• The Palace of Justice was where
the trials were held. It required
extensive renovations to repair
the building so the trial could be
held. Luckily, this building was
one of the few to escape major
damage in the Allied bombings
of Nuremberg during the war.

The Prosecution
• United States Supreme
Court Justice Robert
Jackson was chosen as the
United States’ chief
prosecutor in the trial.
• Roman Rudenko was the
chief prosecutor for the
Russians.
• Sir Hartley Shawcross was
the British prosecutor.

The Judges
• Francis Biddle – Former
U.S. Attorney General and
American justice on the
court.
• Henri de Vabres
Donnedieu – French
justice on the court.
• Sir Geoffrey Lawrence –
British justice and
president of the court.
• Ion Timofeevich
Nikitchenko – Major
general of jurisprudence
and Soviet justice on the
court.

The Trial
• The defendants all faced
charges related to the
atrocities committed by
Nazi Germany during the
war.
• 1. Conspiracy to commit
crimes against peace
2. Planning, initiating and
waging wars of aggression
3. War-Crimes
4. Crimes against
humanity
• Not all defendants faced
all charges.
• The trial lasted 218 days
and included testimony
from 360 witnesses.
• Verdicts were announced
on Sept. 30 and Oct. 1,
1946.
• The executions were all
carried out on Oct. 16,
1946 in the old
gymnasium of the
Nuremberg prison.

The Defendants
• Twenty two Nazi leaders were
tried, including one, Martin
Bormann, in absentia after not
being found. He was later
discovered to have died in
1945.
• These were all top ranking
Nazis, with trials of lower
ranked criminals occurring later
resulting in thousands of
sentences being handed out.
• Twelve of those tried at
Nuremberg were given the
sentence of death by hanging,
including Martin Bormann.

Hermann Goering
• Reichsmarschall and
Chief of the Air Force
• He was Hitler’s heir
apparent until days before
the war’s end when he fell
out of favor.
• He was sentenced to death
by hanging but committed
suicide using a cyanide
pill three hours before his
sentence could be carried
out.

Hans Frank
• Governor-General of
occupied Poland
• Sentenced to death by
hanging, and executed
on October 16, 1946.

Wilhelm Frick
• Minister of the Interior

Alfred Jodl
• Chief of Army Operations
hanging, and executed on
October 16, 1946.
• In 1953 a German appeals
court found him not guilty
of breaking international
law but… it was a little
late.

Ernst Kaltenbrunner
• Chief of Reich Main
Security Office whose
departments included
the Gestapo and SS.

Wilhelm Keitel
• Chief of Staff of the
High Command of the
Armed Forces
on October 16, 1946
despite request to be
shot as a soldier.

Alfred Rosenberg
• Minister of the
Occupied Eastern
Territories

Fritz Sauckel
• Labor leader

Arthur Seyss-Inquart
• Commisar of the
Netherlands

Julius Streicher
• Editor of the newspaper
Der Sturmer and Director
of the Central Committee
for the Defence against
Jewish Atrocity and
Boycott Propaganda
hanging, and executed on
October 16, 1946.

Joachim von Ribbentrop
• Minister of Foreign
Affairs

• Three of the remaining ten
defendants were acquitted
of all charges: Hans
Fritzsche, Hjalmar
Schacht, and Franz von
Papen.
• Albert Speer, Baldur von
Schirach, Konstantin von
Neurath, and Karl Dönitz
all were given between 10
and 20 year prison
sentences.
• Erich Raeder, Rudolf
Hess, and Walther Funk
were all given life
sentences. Erich and
Walther were both
released early, Rudolf died
in prison.

Later Trials
• Following the
Nuremberg trial came
many smaller trials of
German and Japanese
war criminals.
• Other war criminals who
escaped were brought to
justice through the
efforts of Nazi hunters
and Israel’s Mossad.

TOKYO TRIALS:
JUSTICE ACHIEVED?

International Military Tribunal of the Far East
(IMTFE)..
An international tribunal composed of eleven different countries,
The aim was to bring justice to victims. Doing so by, reckoning with the
past. This is was said to pave the way for a peaceful and democratic
Japan.
Strongly influenced by Nuremberg Trials
Active role in compiling important historical records, that documents
were crucial to the trial for identifying individuals guilty of human rights
violations (The Japanese government had attempted to burn these files
before the occupation)

Main Accusations:
Crimes against Peace
Murder
Conventional war crimes
Crimes against humanity
Ill treatment of POW

THE TRIAL
Predictably, there were opposition to these accusations…
The Japanese government denied the responsibility for the Nanjing Massacre
(while admitting the events took place, there was the refusal to take responsibility
for such events)
Denial of conspiring to dominate the Asia-Pacific region.
(although evidence revealed that this had been a major since 1928, when it
became part of the Japanese government policy)

VERDICT
The Japanese military, along with it's supporters(conspirators), were found guilty
of serious war crimes and atrocities.
Responsibility was given to leaders who had either 'secretly ordered or willfully
permitted' such atrocities
Individuals involved were charged with crimes against peace
Out of the fifty-five separate counts of crimes, the number was reduced to
seventeen

MAIN QUESTION: WAS THE IMTFE
SUCCESSFUL IN ACHIEVING THEIR
CLAIMED GOAL?
Goal : To bring justice to victims, To reckon with the past
which was said to pave the way for a future peaceful and
democratic Japan.
Contemporary Japan in fact is more or less a peaceful
democracy, but do the Japanese credit the IMTFE for this
outcome ?

A DIVIDED PUBLIC OPINION
Leftwing Liberals: Thankful for the IMTFE. Credited them for unveiling truth,
claiming they were a major force of a democratic and demilitarized Japan. Yet felt
that the IMTFE should have done more to pursue postwar justice
Rightwing Conservatives: Strongly opposed.
Resent the IMTFE being the cause of Japan s label as a criminal nation.

GROUNDS FOR OPPOSITION
The tribunal choose to ignore:
Emperor Hirohito was not called trialed
Major human rights violations of China (such as: Human
experiments conducted by Unit 731, alleged use of biological and
chemical warfare)
Wartime sufferings of the Japanese colonial subjects in Korea and
Taiwan
Those imprisoned by the IMTFE were pardoned by 1956, when
the US sought Japan as an ally in the Cold War.

Outcome: Partial Justice
The points listed for the grounds for opposition raise suspicion for hidden motives
of the IMTFE.
The Tokyo Trials resulted in symbolic closure, yet it can not be proven that their
involvement created a real tangible difference.

International criminal-law

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