Essay on International Criminal Law

Sub-theme: Contemporary issues vis a vis International Criminal Law

Statutes & Conventions

By:
Author: Vasvi Shukla

Email-id: vasvi.shukla999@gmail.com

Contact no.: 7579420417

Academic status: Student 2nd Year, 3rd Semester, BBA, LL.B., Siddhartha
Law College, Dehradun

Undertaking: The submitted essay is my original work and I undertake the

guarantee of originality.

INTRODUCTION
Yves Sandoz once wrote:It has often been said that one of the most pressing tasks for
international criminal law is to set out clearly what violations are punishable under that
1

law and to define them in specific terms.

On one view, an international crime could be defined as any offence that requires international
cooperation for its prosecution and therefore involves more than one domestic jurisdiction, or
which requires cross-border movements or transactions, such as money laundering or trafficking
in narcotics. This essay, however, focuses on crimes under international law that is, conduct
that violates international law, and is punishable as such with the imposition of individual
criminal liability rather than all crimes that have an international aspect. Moreover, it is not an
exhaustive analysis of all conduct that may constitute a crime under international law, but rather
a focused study of those core categories of crimes crimes against humanity, genocide, war
crimes,sexual crimes, international cybercrimes, and transnational organised crimes for which
a wealth of judicial exposition exists.
This essay describes the contemprary issues relating to international criminal law and has tried to
focus on the key provisions regarding these issues mentioned in various international criminal
laws.

Yves Sandoz,Penal Aspects of International Humanitarian Law, in M. Cherif Bassiouni,International Criminal

Law (2nd edn 1998), p. 406.

THE EVOLUTION OF INTERNATIONAL CRIMINAL LAW

The horrors of the Second World War spawned a host of developments in international law.
Among the most significant was the crystallization of the principle that violation of certain
norms of international law could give rise to individual criminal responsibility. According to this
principle, certain serious violations of international law would engage not only the classical form
of responsibility in international law, i.e., the responsibility of the state, but also that of the
individual human beings perpetrating the violation. Such perpetrators could be criminally
prosecuted and punished for these violations of international law.
The emergence of this principle was primarily driven by the need to develop effective means of
enforcement. As reasoned by the International Military Tribunal at Nuremberg, Crimes against
international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced.4 The
principle of individual criminal responsibility for violations of certain international norms has
now crystallized in treaty law as well as customary international law. The Rome Statute of the
International Criminal Court (ICC), adopted in 1998, provides the most comprehensive
codification to date of international criminal law. Included within its subject matter jurisdiction
are the crimes of aggression, genocide, war crimes, and crimes against humanity. The treaty has
been widely ratified, and its Assembly of States Parties aspires to near universal participation.
Nonetheless, the development of international criminal law is a relatively recent phenomenon,
and the principle of nullem crimen sine lege takes on particular significance in this context.
Further, notwithstanding the fact that these norms directly bind individual human beings, it is
essential to bear in mind that these norms were generated in an inter-state legal system. Thus, for
example, certain crimes will require an inter-state element in order to engage the criminal
responsibility of the individual under international law.

CONTEMPRARY ISSUES VIS A VIS INTERNATIONAL CRIMINAL LAW

There are some of the issues under criminal law which are to be dealt with extra specialisation as
they are the current issues which turn the international criminal law upside down. These are
those issues which bother the common people most, some of them are, war crimes, transnational
organised crimes, cyber crime as a transnational organized crime, genocide, and crimes against
humanity. This essay deals with the meaning and provisions regarding these crimes in
International Criminal Law.

WAR CRIMES
war crime, in international law, serious violation of the laws or customs of war as defined by
international customary law and international treaties. The term war crime has been difficult to
define with precision, and its usage has evolved constantly, particularly since the end of World
War I. The first systematic attempt to define a broad range of warcrimes was the Instructions for
the Government of Armies of the United States in the Fieldalso known as the Lieber Code
after its main author, Francis Lieberwhich was issued by U.S. President Abraham Lincoln
and distributed among Union military personnel in 1863. For example, the Lieber Code held that
it was a serious breach of the law of war to force the subjects of the enemy into service for the
victorious government and prohibited wanton violence committed against persons in the
invaded country, including rape, maiming, and murder, all of which carried the penalty of death.
More recently, definitions of war crimes have been codified in international statutes, such as
those creating the International Criminal Court and the war crimes tribunals in Yugoslavia and
Rwanda, for use in international war crimes tribunals. In contrast to earlier definitions, modern
definitions are more expansive and criminalize certain behaviours committed by civilians as well
as by military personnel.
Provisions Before International Courts
International Criminal Tribunal for the former Yugoslavia Statute Articles 2 and 3 give the ICTY
jurisdiction over grave breaches of the Geneva Conventions and violations of the laws

or customs of war, respectively. Genocide is also defined in Article 6 of the Rome Statute of the
International Criminal Court.
Violations of Article 2 can only be charged if the prosecution also alleges an international armed
conflict. On the other hand, violations of Article 3 can be charged regardless of the nature of the
conflict. However, the prosecution must show that the underlying conduct was prohibited in the
type of armed conflict at issue. That is, if the Article 3 violation concerns a provision applicable
only to international armed conflict, the prosecution must show that the conflict was
international. If the Article 3 violation concerns a provision applicable in international and noninternational armed conflicts, it is not necessary to prove the nature of the conflict. At the ICTY,
the practice has been to charge violations of Article 3 that are prohibited in all armed conflicts in
order to avoid having to prove the existence of an international armed conflict in every case.
Elements Of War Crimes Before The International Criminal Tribunal for the former
Yugoslavia (ICTY)
As noted above, at the ICTY there are two separate categories of war crimes: grave breaches of
the Geneva Conventions, under Article 2 of the ICTY Statute, and violations of the laws or
customs of war, under Article 3.
In order to determine whether conduct constitutes a war crimeeither under Article 2 or Article
3within the jurisdiction of the ICTY, the court must establish the following:
1

The violation constitutes an infringement of a rule of international humanitarian

law;

The rule is customary or, if it belongs to treaty law, all required conditions are
met;

The violation is serious, that is to say that it constitutes a breach of a rule

protecting important values and involves grave consequences for the victims; and

The violation of the rule entails, under customary or conventional law, the
individual criminal responsibility of the person breaching the rule.

Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 3 is residual in nature. It gives
ICTY jurisdiction over any other serious violations of IHL not covered by arts. 2, 4 or 5 of the ICTY Statute, in
addition to the offences expressly listed in Art. 3. The list of crimes in Article 3 is therefore not closed; other crimes
are incorporated in this Article.

Tadid, AJ 94; Kunarac, AJ 66.

CRIMES AGAINST HUMANITY: DEFINITION AND PROVISIONS UNDER

INTERNATIONAL CRIMINAL LAW
The term crimes against humanity has come to mean anything atrocious committed on a large
scale. This is not, however, the original meaning nor the technical one. The term originated in the
1907 Hague Convention preamble, which codified the customary law of armed conflict. This
codification was based on existing State practices that derived from those values and principles
deemed to constitute the laws of humanity, as reflected throughout history in different
cultures. After World War I, the Allies, in connection with the Treaty of Versailles, established in
1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as the
applicable law. In addition to war crimes committed by the Germans, the commission also found
that Turkish officials committed crimes against the laws of humanity for killing Armenian
nationals and residents during the period of the war. The United States and Japan strongly
opposed the criminalization of such conduct on the grounds that crimes against the laws of
humanity were violations of moral and not positive law.
In 1945, the United States and other Allies developed the Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis and Charter of the International
Military Tribunal (IMT), sitting at Nuremberg, which contained the following definition of
crimes against humanity in Article 6(c):
Crimes against humanity: murder, extermination, enslavement, deportation, and other
inhumane acts committed against civilian populations, before or during the war; or persecutions
on political, racial or religious grounds in execution of or in connection with any crime within
the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country
where perpetrated.
The Nuremberg Charter represents the first time that crimes against humanity were established in
positive international law. The International Military Tribunal for the Far East, at Tokyo,
followed the Nuremberg Charter, as did Control Council Law No. 10 of Germany, under which
the Allies prosecuted Germans in their respective zones of occupation. Curiously, however, there
has been no specialized international convention since then on crimes against humanity. Still,
that category of crimes has been included in the statutes of the International Criminal Tribunal
for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as
well as in the statute of the International Criminal Court (ICC). In fact, there are eleven

international texts defining crimes against humanity, but they all differ slightly as to their
definition of that crime and its legal elements. However, what all of these definitions have in
common is:
(1) they refer to specific acts of violence against persons irrespective of whether the person is a
national or non-national and irrespective of whether these acts are committed in time of war or
time of peace, and
(2) these acts must be the product of persecution against an identifiable group of persons
irrespective of the make-up of that group or the purpose of the persecution. Such a policy can
also be manifested by the widespread or systematic conduct of the perpetrators, which results
in the commission of the specific crimes contained in the definition.
The list of the specific crimes contained within the meaning of crimes against humanity has been
expanded since Article 6(c) of the IMT to include, in the ICTY and the ICTR, rape and torture.
The statute of the ICC also expands the list of specific acts. In particular, the ICC statute adds the
crimes of enforced disappearance of persons and apartheid. Further, the ICC statute contains
clarifying language with respect to the specific crimes of extermination, enslave- ment,
deportation or forcible transfer of population, torture, and forced pregnancy.
To some extent, crimes against humanity overlap with genocide and war crimes. But crimes
against humanity are distinguishable from genocide in that they do not require an intent to
destroy in whole or in part, as cited in the 1948 Genocide Convention, but only target a given
group and carry out a policy of widespread or systematic violations. Crimes against humanity
are also distinguishable from war crimes in that they not only apply in the context of warthey
apply in times of war and peace.
Crimes against humanity have existed in customary international law for over half a century and
are also evidenced in prosecutions before some national courts. The most notable of these trials
include those of Paul Touvier, Klaus Barbie, and Maurice Papon in France, and Imre Finta in
Canada. But crimes against humanity are also deemed to be part of jus cogensthe highest
standing in international legal norms. Thus, they constitute a non-derogable rule of international
law. The implication of this standing is that they are subject to universal jurisdiction, meaning
that all States can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the
crime was committed. It also means that all States have the duty to prosecute or extradite, that no
person charged with that crime can claim the political offense exception to extradition, and

that States have the duty to assist each other in securing evidence needed to prosecute. But of
greater importance is the fact that no perpetrator can claim the defense of obedience to
superior orders and that no statute of limitation contained in the laws of any State can apply.
Lastly, no one is immune from prosecution for such crimes, even a head of State.

GENOCIDE
Key Provisions: The preamble makes reference to General Assembly resolution 96 (I), and reaffirms that genocide is a crime under international law, contrary to the spirit and aims of the
United Nations and condemned by the civilized world. It declares that genocide has inflicted
great losses on humanity at all periods of history, and that international cooperation is required in
order to liberate mankind from such an odious scourge.
Article I provides the important clarification that genocide can be committed in time of
peace or in time of war, distinguishing it from crimes against humanity, about which there was
still, in 1948, much doubt about its application absent an armed conflict. The provision also links
the concepts of prevention and punishment. Noting the connection, the International Court of
Justice, in the Bosnia and Herzegovina v. Serbia and Montenegrojudgment of 26 February 2007
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), said that not only was genocide prevented
because of the deterrent effects of punishment, the duty to prevent genocide had its own
autonomous scope which was both normative and compelling.
The crime of genocide is defined in Article II, the provision that sits at the heart of the
Convention. Genocide is a crime of intentional destruction of a national, ethnic, racial and
religious group, in whole or in part. Article II lists five punishable acts of genocide. This
definitional provision has stood the test of time, resisting calls for its expansion, and it is
reproduced without change in such instruments as the statutes of the ad hoc tribunals for the
former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court. The
obstinate refusal to modify the definition is not explained by some innate conservativism in the
international lawmaking process. Rather, the gaps left by the somewhat narrow definition of
genocide in the 1948 Convention have been filled more or less satisfactorily by the dramatic
enlargement of the ambit of crimes against humanity during the 1990s. The coverage of crimes

against humanity expanded to include acts perpetrated in time of peace, and to a broad range of
groups, not to mention an ever-growing list of punishable acts inspired by developments in
international human rights law. For much the same reason, judicial interpretation of article II has
remained relatively faithful to the intent of the drafters of the provision. Thus, it remains
confined to the intentional physical destruction of the group, rather than attacks on its existence
involving persecution of its culture or the phenomenon of ethnic cleansing.
Article III lists four additional categories of the crime of genocide in addition to perpetration
as such. One of these, complicity, is virtually implied in the concept of perpetration and derives
from general principles of criminal law. The other three are incomplete or inchoate offences, in
effect preliminary acts committed even where genocide itself does not take place. They enhance
the preventive dimension of the Convention. The most controversial, direct and public
incitement, is restricted by two adjectives so as to limit conflicts with the protection of freedom
of expression.
Reprising a principal established in the Charter of the International Military Tribunal, article
IV denies the defence of official capacity to Heads of State and other leading political figures.
Article V requires States to enact legislation to give effect to the Conventions provisions, and to
ensure that effective penalties are provided. Many States have accordingly enacted the relevant
texts of the Convention within their own penal codes, whereas others have deemed that the
underlying crimes of murder and assault were already adequately addressed so that perpetrators
of genocide committed on their own territory would not escape accountability.
One of the more controversial and difficult provisions says that genocide will be punished
either by a competent tribunal of the territorial State, or by such international penal tribunal as
may have jurisdiction. Little more than a decade after article VI was adopted, the Israeli courts
dismissed Adolf Eichmanns claim that the provision was an obstacle to the exercise of universal
jurisdiction over genocide. It was held that despite the terms of the Convention, exercise of
universal jurisdiction was authorised by customary international law.
Pursuant to article VII, States parties to the Convention are obliged to grant extradition in
accordance with their laws and treaties in force. There is some practice to suggest that this

rather vague formulation is nevertheless taken seriously, and that States consider themselves
obliged to facilitate extradition when genocide charges are involved, subject to recognised
principles prohibiting refoulement where there is a real risk of flagrant human rights abuses in
the receiving State.
Article VIII declares that a State party to the Convention may appeal to competent organs
of the United Nations for them to take action pursuant to the Charter. This provision, which is
largely superfluous because the right to seize the organs of the United Nations exists in any
event, has apparently been invoked only once, by the United States of America in September
2004 (9 September 2004, Secretary Colin L. Powell, Testimony Before the Senate Foreign
Relations Committee, United States of America).
The International Court of Justice is given jurisdiction over disputes relating to the
interpretation, application or fulfilment of the Convention by article IX. In Bosnia and
Herzegovina v. Serbia and Montenegro, the International Court of Justice confirmed that States
could, in effect, commit genocide, and that the Court could adjudicate the issue pursuant to
article IX. Several applications charging genocide have been filed before the Court, but only one,
Bosnia and Herzegovina v. Serbia and Montenegro, has come to a final judgment.
Enumerated Acts
In the Akayesu case, the first genocide case prosecuted before an international criminal tribunal,
the ICTR elaborated upon the possible acts that constitute genocide when committed with the
requisite intent.
1. Killing members of the group
2. Causing serious bodily or mental harm to members of the group
3. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another group

TRANSNATIONAL ORGANIZED CRIMES

The term organized crime appears to have emerged in Chicago in 1919,1 and the term retains
undertones of the bootlegging gangs prevalent during that era. But the phenomenon of organized
criminal activity far pre-dates this coinage and its manifestations have developed considerably
since that time. Depending on the definition, offences that could be classed as organized crime
have always been with us, but it was only recently that the nations of the world began to compare
notes and collaborate on a collective response.
The rapid growth in the scale and scope of the problem in the post-Cold War world led to the
passage of the United Nations Convention against Transnational Organized Crime, which came
into effect in late 2003.Remarkably, the Convention contains no precise definition of
transnational organized crime, nor does it contain a list of the kinds of crimes that might fall
under this heading. Instead, the Convention defines organized criminal group. This is needed
because the Convention requires parties to criminalize participation in an organized criminal
group. But the purpose of the Convention is to prevent and combat transnational organized
crime, not organized crime groups. Attacking the groups is just one tactic toward this end.
Different forms of transnational organized crime
Transnational organized crime is not stagnant, but is an everchanging industry, adapting to
markets and creating new forms of crime. In short, it is an illicit business that transcends cultural,
social, linguistic and geographical boundaries and one that knows no borders or rules.
Drug trafficking continues to be the most lucrative form of business for criminals, with an
4

estimated annual value of $320 billion. In 2009, UNODC placed the approximate annual worth
5

of the global cocaine and opiate markets alone at $85 billion and $68 billion, respectively.

Human trafficking is a global crime in which men, women and children are used as products
for sexual or labour-based exploitation. While figures vary, an estimate from the International
Labour Organization (ILO) in 2005 indicated the number of victims of trafficking at any given

Based
on 2005 figures (World Drug Report 2011 (United Nations publication, Sales No. E.11.XI.10)). Available
from
www.unodc.org/wdr.

World Drug Report 2011.

time to be around 2.4 million, with annual profits of about $32 billion.

Recent research on

overall forced labour trends however would suggest that the scope of the problem is much
7

bigger. In Europe, the trafficking of mostly women and children for sexual exploitation alone
brings in $3 billion annually and involves 140,000 victims at any one time, with an annual flow
of 70,000 victims.

Smuggling of migrants is a well-organized business moving people around the globe through
criminal networks, groups and routes. Migrants can be offered a smuggling package by
organized crime groups, and the treatment they get along the route corresponds to the price they
pay to their smugglers. In the process of being smuggled, their rights are often breached and they
can be robbed, raped, beaten, held for ransom or even left to die in some cases, when the risks
get too high for their smugglers. Many smugglers do not care if migrants drown in the sea, die of
dehydration in a desert or suffocate in a container. Every year this trade is valued at billions of
dollars. In 2009 some $6.6 billion was generated through the illegal smuggling of 3 million
9

migrants from Latin America to North America, while the previous year 55,000 migrants were
smuggled from Africa into Europe for a sum of $150 million.

10
11

Illicit trading in firearms brings in around $170 million to $320 million annually and puts
handguns and assault rifles in the hands of criminals and gangs. It is difficult to count the victims

Based on 2005 estimates from the International Labour Organization (ILO). More recent and precise estimates by
ILO on overall forced labour trends however would lead us to think that the scope of the problem is much bigger.
(International Labour Office, A Global Alliance against Forced Labour: Global Report under the Followup to the
ILO Declaration on Fundamental Principles and Rights at Work (Geneva, ILO, 2005)). Available from
www.ilo.org/wcmsp5/ groups/public/@ed_norm/@declaration/documents/publication/ wcms_081882.pdf.
7

International Labour Organization, Global Estimate of Forced Labour 2012: Results and Methodology (Geneva,
ILO, 2012). Available from http://www.ilo.org/sapfl/Informationresources/ILOPublications/ WCMS_182004/lang-en/index.htm

United Nations Office on Drugs and Crime, Trafficking in persons to Europe for sexual exploitation ,
June 2010.

Available from www.unodc. org/documents/publications/TiP_Europe_EN_LORES.pdf.

9

The Globalization of Crime: A Transnational Organized Crime Threat Assessment (United Nations publication,
Sales No. E.10.IV.6.2010). Available from www.unodc.org/documents/data-and-analysis/tocta/
TOCTA_Report_2010_low_res.pdf.
10

Ibid.

11

UNODC

of these illicit weapons, but in some regions (such as the Americas) there is a strong correlation
between homicide rates and the percentage of homicides by firearms.
Trafficking in natural resources includes the smuggling of raw materials such as diamonds and
rare metals (often from conflict zones). The trafficking of timber in South-East Asia generates
annual revenues of $3.5 billion.

12

In addition to funding criminal groups, this strand of criminal

activity ultimately contributes to deforestation, climate change and rural poverty.

The illegal trade in wildlife is another lucrative business for organized criminal groups, with
poachers targeting skins and body parts for export to foreign markets. Trafficking in elephant
ivory, rhino horn and tiger parts from Africa and South-East Asia to Asia produces $75 million in
criminal profits each year and threatens the existence of some species.

13

The sale of fraudulent medicines is a worrying business, as it represents a potentially deadly

trade for consumers. Piggybacking on the rising legitimate trade in pharmaceuticals from Asia to
other developing regions, criminals traffic fraudulent medicines from Asia, in particular to
South-East Asia and Africa to the value of $1.6 billion.

14

Cybercrime encompasses several areas, but one of the most profitable for criminals is identity
15

theft, which generates around $1 billion each year. Criminals are increasingly exploiting the
Internet to steal private data, access bank accounts and fraudulently attain payment card details.

12

The Globalization of Crime: A Transnational Organized Crime Threat Assessment.

13

Ibid

14

Globalization of Crime: A Transnational Organized Crime Threat Assessment.

15

Ibid.

TORTURE
United Nations Transitional Administration in East Timor (UNTAET) Regulation No. 2000/15
potentially provides three separate ways to prosecute torture torture as such, torture as a crime
against humanity, and torture as a war crime. Further, the Regulation provides different
definitions of torture depending on which type of crime is prosecuted.

16

A. Torture as an Independent Offense

UNTAET Regulation No. 2000/15 provides for the prosecution of torture independently of war
crimes or crimes against humanity. Section 7.1 states that: 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/her or a third person information or a confession, punishing
him/her for an act he/she or a third person has committed or is suspected of having committed, or
humiliating, intimidating or coercing him/her or a third person, or for any reason based on
discrimination of any kind. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
B. Torture as a Crime against Humanity or War Crime
Section 5.2(d) of the UNTAET Regulation provides that in the context of crimes against
humanity: Torture means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful
sanctions.
Although the Regulation does not specifically define torture as a war crime, in discussing the
crime in this context, the ICTY has stated that the constitutive elements of torture are as follows:
(1)

The infliction, by act or omission, of severe pain or suffering, whether physical or mental.

(2) The act or omission must be intentional.

16

See UNTAET Reg. No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal

Offences, UNTAET/REG/2000/15, 5.2(d) (defining torture as a means of committing a crime against humanity)
and 7 (defining torture as a separate criminal offense) (6 June 2000) [hereinafter UNTAET Regulation No. 2000/15].

(iii) The act or omission must aim at obtaining information or a confession, or at punishing,
intimidating or coercing the victim or a third person, or at discriminating, on any ground, against
the victim or a third person.

CONCLUSION
The foregoing discussion has sought to identify some of the legal issues arising from the recent
trends in International Criminal Law and their respective provisions. The most obvious first
conclusion is that more research into this fairly opaque area of the law is urgently needed. Such
efforts are now being undertaken by various bodies and individuals, but more is surely needed.
Clearly, the investigation and the discussions cannot be purely academic, given that the
phenomenon of war crimes, international cyber crimes, sexual offenses, genocide and
transnational organized crimes has serious operational consequences. The close involvement of
the military in these efforts is to be welcomed and further encouraged.
If states do not show leadership in taking the legal and moral high ground in approaching the
challenge of contemporary issues mentioned above, the law will be rendered an empty shell, and
increased suffering of innocents will be the inevitable result.