An account of International Criminal Law and International Crimes

Public International Law encompasses various fields of law, some of which represent the culture and tradition of the society, others being continuously evolving in social, economic, and political values. International law has seen growth horizontally and vertically, thereby, embracing the applicable and relevant statutes and reaching out to new states, organizations as well as individuals.[1]

After the World Wars took place, International Criminal Law became an essential piece of law, made applicable to almost all the countries with power during that time. Present-day theories hint towards three important principles that form the cornerstone of international criminal law.[2]
First, international law recognizes individuals as subjects, possessed with rights, and who owe duties defined in the law.
Second, there are certain crimes for which individuals hold attributability.
Third, international law differentiates between the civil responsibility of the states and criminal liability. These foundations are less developed since there is a lack of coherence and similarly followed principles around the world. Though fluid, this has allowed international criminal law to evolve and reinvent itself. There is no theory on what to be covered within international criminal law, and thus, different segments get included within its ambit, including forced displacement, transfer of persons, political violence, protection of public goods, and interests.[3]

International criminal law attempts to modulate the behaviour of the states, international organizations as well as individuals, who tend to operate in the commission of international crime across national boundaries.[4] In a nutshell, international criminal law deals with the criminal responsibility of individuals for the commission of international crimes. The most severe violations of international humanitarian law are criminalized by international criminal law, and the perpetrators of the same are exposed to criminal liability. It is fundamental to maintain the sanctity of the rule of law, deterrence of future violations, and provide justice to victims and address provisions of redressal, and thus criminal accountability for serious crimes becomes crucial.

International Crimes

International crimes are generally regarded as ‘state criminality’ meaning crimes that have been committed in pursuit of state interests.[5] Some people link this to the phenomenon of macro criminality, which means crimes that affect individuals as well as societies.[6] There is also a section that believes that international crimes are guided by nationalist ideologies, dehumanization, patterns of victimization, scapegoating, and utopian orientation.[7] Some claim that international crime is committed against the individual victim as well as the community whose law is violated.[8] Converting an act to an ‘international crime’ as opposed to ordinary crimes entails consequences. The legal consequence of framing an action as an international crime is that the states become obliged to prosecute and punish any individual for the commission of the crime. The scope of international law allows for universal jurisdiction, which allows a State to try and prosecute the alleged perpetrators which are present within that State’s territory.[9]This allows for the State to exercise jurisdiction even if there is no link between the State exercising jurisdiction and the accused.[10]

Similar to domestic offences, international crime has two components- actus reus and mens rea, the former referring to the commission of an illegal act, the causation and the consequences, and the latter referring to the culpable frame of mind of the culprit.[11] Mens rea includes elements of knowledge, intent as well as awareness of negligence and risk.[12] Different national instruments have varied levels of strictness with respect to the inclusion of crimes within its ambit, the most permissive being the Rome Statute of the International Criminal Court [‘ICC Statute’]. In the history of international crimes, the focus has shifted from first-generation crimes to the core crimes. First-generation crimes enjoyed high recognition earlier and included crimes like piracy, slavery, etc. These included ‘private’ forms of violence, meaning the action of non-state actors which targeted the common interest of various states.[13] In this essay, the focus strongly remains at the core crimes, which include genocide, crimes against humanity, and war crimes. These offences are considered to be of exceptional gravity having cross-border harm affecting common interests of numerous states at once, thus possessing transnational elements.[14]

Genocide

The word genocide is combined from two Greek words- ‘genos’ meaning a race or a tribe and ‘cide’ meaning killing. Thus, the prima facie meaning comes up as deliberate destruction causing the killing of an ethnic group or a nation.[15] Thus, the intent to destroy, in whole or in part, a national, racial, ethnical, or religious group and committing any action in furtherance of this, is defined as genocide. An act amounts to genocide if there are deaths due to killing the members of a group, causing serious bodily injury or mental harm, forcibly transferring children of one group to another, or inflicting conditions which bring out physical destruction of life.[16] The aftermath of the Second World War and Genocide Convention, 1948 played an important role in including genocide as an international crime.[17] Genocide is considered as the ‘crime of the crimes’[18] because the intent behind such an act is supremely evil.[19]

The essence of the crime is attacking those protected specific groups which are prone to victimization.[20] This combination of hate crime and state crime[21] can be committed only against religious, racial, national, or, ethnic groups.[22] Political and cultural groups do not form a part of this as they not recognized as protected groups.[23] Similarly, extermination based on state-induced social class or political opinion is also not covered.[24] Actual destruction is not necessary to prove genocide. However, it is the ‘intent’ of the perpetrator to destroy the whole group in whole in part, which is generally difficult to prove. Proving intent is difficult as it is difficult to ‘look into the mind of the perpetrator’. Circumstantial evidence is used sometimes to infer the genocidal intent. It has been accepted that the power and meaning of the word ‘genocide’ get broadening and continue to exceed its legal meaning over time.

War Crimes

War crimes are one of the oldest in the category of atrocity crimes. These offences concern the breach of rules of customary and treaty law of the international humanitarian law and have now become accepted as criminal offences. ICTY Statute recognizes few acts as war crimes and gives jurisdiction for

“grave breaches of Geneva Convention and have defined following acts against persons and property protected (a) willful killing; (b) torture or inhumane treatment; (c)willfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) willfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.”[25]

There have been major ideological differences in the growth of international humanitarian law despite its growing global relevance.[26] War crimes have developed incrementally, and only specific violations of international humanitarian laws are criminalized. War crime got its definition widely through practice during the twentieth century. Now there are modern conflicts that involve an extensive range of actors from classical state agents to paramilitary forces to private military contractors. War crimes include all of these crimes, extending beyond the traditional armies. Since they are subject to modifications, courts play an essential role in shaping the practice of war crimes. The transformations also help us raise criticism against the law and sharpen and refine international humanitarian law.[27]

Crimes Against Humanity

The origin of this concept lies in the humanitarian principles governing armed conflict.[28] Crimes against humanity include several different acts which amount to serious human rights violations if committed against a widespread civilian population as a systematic attack.[29] Rome Statute defines crimes against humanity when following acts are committed, with the knowledge of the attack which includes sexual violence, enslavement, torture, murder, persecution, extermination, and the crime of apartheid, imprisonment, and various other inhumane acts of similar character.[30] Crimes against humanity differ from genocide as genocide focuses on the collective victimization of a group whereas, crimes against humanity aim towards penalizing the collective nature of crime perpetration.[31]  Such crimes attack the targeted civilian population which are already at risk and thus become much broader than merely a domestic crime becoming an international crime.[32]

Crimes against humanity are international crimes as they are an attack on the collective understanding of humanity as well as the qualities of the individual as a human being.[33] These crimes target the commonalities of humanity and are therefore prohibited. They are also a threat to international peace and security and risk the well-being of the world.[34] These crimes are about the misuse of power and authority and abusing the monopoly of the use of force. Traditional understanding has been that such crimes are prohibited as a result of a state policy that does not tolerate such acts. This field of international crime includes a wide range of crimes within itself and thus is subject to modernization. This helps the various international criminal courts deal with new forms of violence and transformation of conflict. Therefore, global justice seems open to critique, some seeing it as a tool to target opponents, others as an instrument to subdue state power.


[1] S. Hoffman, International Systems and International Law, 14 World Politics, 205 (1962).

[2] Quincy Wright, The Scope of International Criminal Law, 565 (1974).

[3] Carsten Stahn, A Critical Introduction to International Criminal Law, 15-116 (2018).

[4] International Criminal Law, Cornell Law School, Available at: https://www.law.cornell.edu/wex/international_criminal_law (Last Accessed: May 24, 2020).

[5]  K. Lasslett, Understanding and Responding to State Crime: A Criminological Perspective, in Criminological Approaches to International Criminal Law, 68 (2014).

[6] H. Jäger, Verbrechen unter totalitärer Herrschaft: Studien zur nationalsozialistischen Gewaltkriminalität (Freiburg-Olten: Walter, 1967)

[7] A. Alvarez, Destructive Beliefs: Genocide and the Role of Ideology, in Supranational Criminology, 216 (2008).

[8] Telford Taylor, Large Questions in Eichmann Case, New York Times 6 (1961).

[9] International Criminal Law, Available at: https://casebook.icrc.org/glossary/international-criminal-law (Last Accessed: May 24, 2020).

[10] Ibid.

[11] Rome Statute of the International Criminal Court, (2002) Article 30.

[12] M. Badar, Dolus Eventualis and the Rome Statute Without It?, 12 New Crim. L. Rev. 433 (2009).

[13] Carsten Stahn, A Critical Introduction to International Criminal Law, 15-116 (2018).

[14] L. May, Crimes Against Humanity: A Normative Account (2005).

[15] Telford Taylor, When people kill people, The New York Times, 12 December 2016.

[16] Rome Statute of the International Criminal Court (2011), Article 6.

[17] Malcolm Shaw, International law, 431 (2008).

[18] W. A. Schabas, Genocide in International Law: The Crime of Crimes (2009).

[19] D. Amann, Group Mentality, Expressivism, and Genocide 2 Int’l Crim. L. Rev. 93, 132 (2002).

[20] G. P. Fletcher, Romantics at War: Glory and Guilt in the Age of Terrorism 66 (2002).

[21] J. E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. of Int’l L. 365 (1999).

[22] C. Lingaas, Elephant in the Room: The Uneasy Task of Defining “Racial” in International Criminal Law 15 Int’l Crim. L. Rev. 485 (2015).

[23] H. Schneider, Political Genocide in Latin America: The Need for Reconsidering the Current Internationally Accepted Definition of Genocide in Light of Spanish and Latin American Jurisprudence, 25 Am. Univ. Int’l L. Rev. 314 (2010).

[24] 144

[25] Statute of The International Criminal Tribunal for The Former Yugoslavia (2008), Article 2.

[26] Alexander, A Short History, 113 (2015).

[27] C. Stahn, Between Constructive Engagement, Collusion and Critical Distance: The ICRC and the Development of International Criminal Law, 15 Chinese J. Int’l L. 139–166 (2016).

[28] M. C. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011).

[29] International Criminal Law, Diakonia, Available at: https://www.diakonia.se/en/IHL/The-Law/International-Criminal-Law1/ (Last Accessed: May 24, 2020).

[30] Rome Statute of the International Criminal Court (2011), Article 7.

[31] J. D. Ohlin, Organizational Criminality, in 118 Pluralism in International Criminal Law (2014).

[32] Schabas, State Policy as an Element of International Crimes, 953 (2008).

[33] C. McLeod, Towards a Philosophical Account of Crimes Against Humanity, 21 E.J.I.L. 281 (2010).

[34] I. Haenen, Classifying Acts as Crimes Against Humanity in the Rome Statute of the International Criminal Court, 14 German L. J., 796, 803 (2013).

Soumya Gupta from West Bengal National University of Juridical Sciences, Kolkata.


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