contrast, represses attacks against the basic values of the international community,

as epitomised by systematic or large-scale violence, 4 rather than attacks against the

joint interests of States. To address these crimes, supranational prosecutorial and
judicial mechanisms, rather than mere enhanced inter-State

1
eg International Convention for the Suppression of Counterfeiting Currency (adopted 20 April 1929, entered
into force 22 February 1931) 112 LNTS 371; Convention to Suppress the Slave Trade and Slavery (adopted
25 September 1926, entered into force) 212 UNTS 17; Supplementary Convention on the Abolition of Slavery,
the Slave Trade, and Institutions and Practices Similar to Slavery (adopted 7 September 1956, entered into force
30 April 1957) 266 UNTS 3.
2
eg Convention on Offences and Certain Other Acts Committed on Board Aircraft (adopted 14 September
1963, entered into force 4 December 1969) 704 UNTS 219; United Nations Convention against Corruption
(adopted 31 October 2003, entered into force 14 December 2005) 2349 UNTS 41 (UN Convention against
Corruption); United Nations Convention against Transnational Organized Crime (adopted 15 November 2000,
entered into force 29 September 2003) 2225 UNTS 209.
3
N Boister, An Introduction to Transnational Criminal Law (Oxford, OUP, 2012) 3.
4
G Werle, ‘General Principles of International Criminal Law’ in A Cassese (ed), The Oxford Companion to
International Criminal Justice (Oxford, OUP, 2009) 55.
744 INTERNATIONAL CRIMINAL LAW

All crimes consist of a material (actus reus) and a mental (mens rea) element. Pertinent to
the material element are the perpetrator’s conduct (eg using prohibited weapons, even
absent harmful effects), consequences (eg killing civilians), and/or circumstances (eg
recruiting child soldiers, ‘age’ being the relevant circumstance). The material element is
normally established in the definition of the crime.
5
eg Internatinal Military Tribunal (Nuremberg), US et al v Göring et al, 1 October 1946, 22 IMT 203.
6
eg the Genocide Convention and the four 1949 Geneva Conventions.
7
eg J-M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law – Volume I:
Rules and Volume II: Practice (Cambridge, CUP, 2005). For general principles of ICL, see F Raimondo, General
Principles of Law in the Decisions of the International Criminal Courts and Tribunals (Leiden, Nijhoff, 2008).
8
See below, Section V(A) on the establishment and design of international criminal tribunals.
9
The ICC has jurisdiction over aggression; see below, Section III(D). Via the Lebanese Criminal Code, the
STL had jurisdiction over terrorism and torture; see Art 2 Statute of the Special Tribunal for Lebanon (UNSC Res
1757, 30 May 2007, UN Doc S/RES/1757). See also STL, Interlocutory Decision on the Applicable Law:
Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, Case No
STL-11-01/I/AC/R176bis, para 62, holding that the STL may refer to international sources of law, including on
terrorism, to assist it in inter- preting and applying Lebanese law.
10
Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures
between Member States (2002/584/JHA) [2012] OJ L190/1 (EAW Framework Decision).
 DEFINITIONS OF INTERNATIONAL CRIMES 745

The mental element, referring to the perpetrator’s state of mind when committing the
crime, is often not established in the definition of the crime, which explains why a specific
provision in the ICC Statute is devoted to it. Under Article 30(1) of the Statute, a person
shall be criminally responsible and liable for punishment for a crime within the jurisdiction
of the Court only if the material elements are committed with intent and knowledge. 11
Definitions of crimes may provide for a different mens rea. For instance, and as will be
discussed below (Section III(A)), genocide requires a ‘special intent’.
Pursuant to Article 9 of the ICC Statute, ‘Elements of Crimes’, which assist the
Court in the interpretation and application of the substantive crimes by further specify-
ing their respective elements, have been adopted by the Assembly of States Parties to
the ICC Statute.12

I. Definitions of International Crimes

All modern-day international criminal tribunals – ie the ICTY, ICTR and ICC – have (or,
for the ICTY and ICTR, ‘had’; see below, Section V(A)) jurisdiction over three categories
of crimes: genocide, crimes against humanity and war crimes. These crimes are character-
ised as ‘core crimes’ against international law. Only the ICC has jurisdiction over the crime
of aggression. The essentials of the four crimes are discussed respectively, following which
the ‘treaty crimes’ terrorism and torture are also considered.

A. Crime of Genocide13

The crime of genocide refers to a number of acts committed with the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such.14 The seriousness of
the crime is underlined by the fact that – immediately after World War II – it was codified
by means of the 1948 Genocide Convention, and that its prohibition has since been
recognised to have attained the status of a jus cogens norm15 and to impose an erga omnes
obligation on States.16

11
Art 30(2) ICC Statute goes on to state that ‘a person has intent where (a) [i]n relation to conduct, that person
means to engage in the conduct; (b) [i]n relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of events’. Art 30(3) provides that ‘“knowledge” means
awareness that a circumstance exists or a consequence will occur in the ordinary course of events’.
12
ICC ‘Elements of Crimes’, 9 September 2002, ICC-ASP/1/3, Part II.B, as amended by Res RC/Res.6 of
11 June 2010, RC/11.
13
See also Chapter 16, Section III(A), which deals with genocide from a human rights law perspective.
14
Art 6 ICC Statute; Art 4 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted by
UNSC Res 827, 25 May 1993, UN Doc S/RES/827, as amended, consolidated version as of September 2009:
icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (ICTY Statute); Art 2 Statute of the International
Criminal Tribunal for Rwanda, adopted by and annexed to UNSC Res 955, 8 November 1994, UN Doc
S/RES/995, as amended, consolidated version as of 31 January 2010: unictr.unmict.org/sites/unictr.org/files/legal-
library/100131_Statute_en_fr_0.pdf (ICTR Statute). These articles all copy the definition of genocide contained
in Art II of the Genocide Convention.
15
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) [2006]
ICJ Rep 6, para 64.
16
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion)
[1951] ICJ Rep 15, 23.
746 INTERNATIONAL CRIMINAL LAW

The specific forms of genocide, which form part of the objective elements of the crime,
concern:
(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.17

While these forms of genocide are relatively clear, it is noteworthy that in its quintessential
Akayesu judgment, the ICTR established that rape and sexual violence may also amount to
genocide (if committed with genocidal intent, on which see immediately below). 18
Judicial authorities faced more ambiguities in establishing the fulfilment of the notion
‘group’. In Akayesu, the ICTR first put forward an objective approach, requiring ‘stable’
rather than ‘mobile’ groups; referring to groups ‘constituted in a permanent fashion and
membership of which is determined by birth’ rather than ‘voluntary commitment’.19
Eventually – still in Akayesu – the ICTR inserted a subjective element in its test, noting
‘that all the Rwandan witnesses who appeared before it invariably answered spontaneously
and without hesitation the questions […] regarding their ethnic identity’.20 A subjective
approach was confirmed in later ICTY cases, considering that ‘it is more appropriate to
evaluate the status of a national, ethnical or racial group from the point of view of those
persons who wish to single that group out from the rest of the community’ and that it is
‘the stigmatisation of a group […] which allows it to be determined whether a targeted
popula- tion constitutes a national, ethnical or racial group in the eyes of the alleged
perpetrators’.21 This approach is in line with the requirement of a special, genocidal
intent (dolus specialis), which sets genocide apart from the other international crimes.
The gravity of genocide is marked by its subjective element or mens rea, namely the intent
to destroy one of the protected groups.22 That is so because perpetrators of genocide ‘do not
see the victim as a human being, but only as a member of the persecuted group’ and do not
target the victim in his or her capacity as an individual.23 Accordingly, Article II of the
Genocide Conven- tion requires intent to destroy the group ‘as such’. In Mpambara, the
ICTR held that ‘the commission of even a single instance of one of the prohibited acts is
sufficient, provided that the accused genuinely intends by that act to destroy at least a
substantial part of the
group’.24 Thus, what is required is ‘genuine intent’.25

17
Art II Genocide Convention.
18
ICTR, Trial Chamber, Prosecutor v Akayesu, 2 September 1998, Case No ICTR-96-4-T, para 731; as ‘rape
and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even,
according to the Chamber, one of the worst ways of [sic] inflict harm on the victim as he or she suffers both
bodily and mental harm’ (ibid). This has been confirmed by Art 6(b)(1), fn 3 of the ICC Elements of Crimes (n
12).
19
Akayesu (n 18) para 511.
20
ibid, para 702.
21
ICTY, Trial Chamber, Prosecutor v Jelisić, 14 December 1999, Case No IT-95-10-T, para 70. See also ICTY,
Trial Chamber, Prosecutor v Krstić, 2 August 2001, Case No IT-98-33-T, paras 559–60; A Cassese, International
Criminal Law, 3rd edn (Oxford, OUP, 2013) 120–21.
22
R Cryer et al, An Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge, CUP,
2010) 206. See also Jelisić (n 21) para 66 and Court of Bosnia and Herzegovina, the Panel of the Appellate
Division, the Section I for War Crimes, Prosecutor’s Office of Bosnia and Herzegovina v Stevanović Miladin,
9 November 2009, Case No X-KRŽ-05/24-2, paras 55–58.
23
Federal Court of Justice (GE), Prosecutor v Jorgić, 30 April 1999, Case No 3 StR 215/98, para 37.
24
ICTR, Trial Chamber, Prosecutor v Mpambara, 11 September 2006, Case No ICTR-01-65-T, para 8.
25
Cassese (n 21) 118–19.
 DEFINITIONS OF INTERNATIONAL CRIMES 747

The ICTY has clarified that the term ‘destroy’ should be interpreted as referring to the
physical or biological destruction of the group and not, for example, to attacking ‘the
cultural or sociological characteristics of a group in order to remove its separate identity’26
(a so-called ‘cultural genocide’). In the same vein, genocide should not be confused with
‘ethnic cleansing’, which ‘has no legal significance of its own’,27 but can be defined as
‘rendering an area ethnically homogeneous by using force or intimidation to remove
persons of given groups from the area’.28 According to the ICJ, the ‘deportation or
displace- ment of the members of a group, even if effected by force, is not necessarily
equivalent to destruction of that group, nor is such destruction an automatic consequence
of the displacement’.29

B. Crimes against Humanity

Crimes against humanity concern a number of acts committed as part of a widespread or

systematic attack directed against any civilian population, with knowledge of the attack. 30
As of yet, and as opposed to what is the case for genocide, there is no separate convention
on crimes against humanity. Since 2014, the ILC has been in the process of drafting such a
global convention.31
Traditionally, the specific forms of crimes against humanity concern acts such as
murder, extermination, enslavement, deportation, imprisonment, torture, rape and
persecution.32 Article 7 of the ICC Statute, which constitutes a codification as well as a
progressive devel- opment of customary international law,33 specified that also other forms
of sexual violence are included, and added enforced disappearance and the crime of
apartheid to the list. Noteworthy is that the list of acts that can constitute crimes against
humanity includes a catch-all clause, referring to ‘other inhumane acts of a similar
character intentionally caus- ing great suffering, or serious injury to body or to mental or
physical health’.34

26
ICTY, Appeals Chamber, Prosecutor v Krstić, 19 April 2004, Case No IT-98-33-A, para 25. Although, while
not sufficient in and of themselves, simultaneous attacks on cultural and religious property and symbols are often
connected to the crime of genocide.
27
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, para 190.
28
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992),
27 May 1994, UN Doc S/1994/674, Annex, para 129.
29
‘This is not to say that acts described as “ethnic cleansing” may never constitute genocide’: they do if they
can be characterised as one of the specific forms of genocide and are ‘carried out with the necessary specific
intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from
the region’. Still, ‘it
748 INTERNATIONAL CRIMINAL LAW

This catch-all clause illustrates that the characteristic element of crimes against
human- ity does not so much concern the specific acts through which they can
materialise. Rather, it is the required contextual element that sets crimes against
humanity apart from the other international crimes. The 1945 Nuremberg Charter was
the first legal instrument to crim- inalise crimes against humanity, but required a link
with an armed conflict. 35 However, when France, the UK, the US and the USSR later
that year adopted Control Council Law No 10,36 which served as a basis to prosecute
perpetrators of international crimes committed during World War II who would not be
prosecuted by the International Military Tribunal (IMT or Nuremberg Tribunal), they
dropped the link between crimes against humanity and armed conflict. 37 After the
ICTY Statute had again stipulated the requirement of a connection with an armed
conflict,38 the ICTR Statute contributed to the evolution of crimes against humanity
towards a truly self-standing international crime, instead requir- ing the contextual
element of a ‘widespread or systematic attack’ against any civilian population.39 The
ICC Statute has consolidated this evolution.40 Thus, what distinguishes crimes against
humanity from war crimes is that the former do not need to be committed during an
armed conflict.41
The widespread or systematic test is disjunctive, meaning that only one of its two
elements needs to be satisfied. The term ‘widespread’ generally connotes the large-
scale nature of the attack and the number of victims, while the term ‘systematic’ refers
to the high degree of organisation of the attack.42 The ICC Statute establishes that the
requirement of an attack includes a policy element, meaning that a plan or policy to
commit the crimes by a government or an organisation must exist;43 an element the
statutes and case law of the ad hoc tribunals did not require.44 The requirement that the
attack be directed against any civilian population entails: (i) that attacks by a State or
organisation against its own popu- lation or that of its allies are also covered; 45 but (ii)
that attacks against combatants are not covered.46 As to the subjective element, it is
required that the perpetrator is aware of the existence of a widespread or systematic
attack, and the link between his or her crime and that attack.47

35
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex:
Charter of the International Military Tribunal (8 August 1945) 82 UNTS (Nuremberg Charter) 279, Art 6(c).
36
Control Council Law No 10 on the Punishment of Persons Guilty of War Crimes, Crimes Against Peace and
Against Humanity, 20 December 1945, (1946) 3 Official Gazette Control Council for Germany 50.
37
ibid, Art II(1)(c); Cassese (n 21) 90.
38
Art 5 ICTY Statute.
39
Art 3 ICTR Statute.
40
Art 7(1) ICC Statute.
41
Although, when the underlying crimes are committed during an armed conflict, it is not excluded that
they qualify as crimes against humanity. For an application before a national court, see eg Regional Court of
Ljubljana (SI), Supreme State Prosecutor v Ribičič (Mitja), 27 June 2006, Case No Ks 962/2006, para 14,
relying on the provisions of several international instruments to come to the conclusion that crimes against
humanity can be committed in time of peace.
42
Akayesu (n 18) para 580.
43
According to Art 7(2)(a) ICC Statute, the attack requirement refers to ‘a course of conduct involving the
multiple commission of acts […] pursuant to or in furtherance of a State or organizational policy’. The ICC
Elements of Crimes (n 12) add that the policy element ‘requires that the State or organization actively
promote or encourage’ the attack.
44
eg ICTY, Appeals Chamber, Prosecutor v Kunarac, 12 June 2002, IT-96-23 & 23/1-A, para 98.
45
Cassese (n 21) 101–102.
46
Even if combatants can still be the individual victims of the underlying crimes part of an attack against a
civilian population; ibid, 102.
47
ibid, 98–100.
 DEFINITIONS OF INTERNATIONAL CRIMES 749

C. War Crimes

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use of a flag of truce resulting in death or serious personal injury); and (vi) ‘conscripting or
enlist- ing children under the age of 15 years or using them to participate actively in
hostilities’.56

D. Crime of Aggression

Crimes of aggression are the modern-day versions of crimes against the peace, with which
the Treaty of Versailles (1919)57 charged the German Emperor and which were made

48
Art 8(2)(a) ICC Statute; Art 2 ICTY Statute.
49
Art 8(2)(b)–(e) ICC Statute; Art 3 ICTY Statute; Art 4 ICTR Statute.
50
Or the law of armed conflict (LOAC), on which see Chapter 15.
51
ICTY, Appeals Chamber, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, Case No IT-94-1, para 94; see also Cassese (n 21) 65.
52
See, however, above (Subsection (B)) on the Nuremberg Charter and the ICTY Statute.
53
Cassese (n 21) 77.
54
M Cottier, ‘Article 8: War Crimes’ in O Triffterer and K Ambos, The Rome Statute of the International
Criminal Court: A Commentary, 3rd edn (München, Beck, 2016) 321–22.
55
Emphasis added.
56
Cassese (n 21) 71–75.
57
Art 227 Treaty of Peace with Germany (adopted 28 June 1919, entered into force 10 January 1920) 225 CTS
188 (Treaty of Versailles).
750 INTERNATIONAL CRIMINAL LAW

punishable by the Nuremberg Charter.58 In 1974, UN General Assembly Resolution 3314

(XXIX) defined aggression as ‘the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations’.59
Today, the ICC Statute is the sole legal instrument containing the crime of aggression.
Initially, Article 5(1) of the ICC Statute simply mentioned that the crime of aggression
was a crime within the jurisdiction of the Court, while Article 5(2) of the Statute provided
that ‘[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted […] defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime.’ At the Kampala Conference in 2010,
an amendment to the ICC Statute was adopted, defining the crime of aggression. 60 Still,
according to the new Article 15bis(3) of the ICC Statute, the Court could only exercise juris-
diction over the crime of aggression: (i) ‘subject to a decision to be taken after 1 January
2017 by the same majority of States Parties as is required for the adoption of an amend-
ment to the Statute’; and (ii) after the amendments to the ICC Statute concerning the crime
of aggression had been ratified or accepted by (at least) 30 States Parties. 61 At the end of
2017, the Assembly of States Parties was finally able ‘to activate the Court’s jurisdiction
over the crime of aggression as of 17 July 2018’.62
Article 8bis of the ICC Statute heavily borrows from UN General Assembly
Resolution 3314.63 However, as the UNGA dealt with aggression as a matter of public
international law and the ICC Statute does so as a matter of international criminal law,
differences exist. Thus, Article 8bis(1) separately defines the crime of aggression,
specifying two additional elements. First, the crime of aggression can only be committed
‘by a person in a position effectively to exercise control over or to direct the political or
military action of a State’.64 Thus, it excludes:
(i) leaders of non-State armed groups; and (ii) State agents that are not in a leadership posi-
tion. Second, the Statute inserts a qualified threshold by requiring an act of aggression that
‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the
United Nations’.65 Article 8bis(2) then defines what constitutes an ‘act of aggression’ under
the Statute by copying the list contained in Article 3 of UNGA Resolution 3314. It should
be noted, however, that while Article 4 of the UNGA Resolution provides that the list of
acts enumerated in Article 3 thereof is not exhaustive, the ICC Statute does not contain such
a provision, following which the list of Article 8bis(2) must be considered to be exhaustive.

E. International Treaty Crimes

International ‘treaty crimes’ are those crimes that are the subject of multilateral treaties
because the international community has an interest in suppressing them, but the status

58
Art 6(a) Nuremberg Charter (n 35).
59
UNGA, ‘Definition of Aggression’, Annex to UNGA Res 3314 (XXIX), 14 December 1974, UN Doc
A/RES/3314 (XXIX), Art 1. Art 3 then contains a (non-exhaustive (see Art 4)) list of specific acts that qualify as
acts of aggression.
60
See Assembly of States Parties, Res RC/Res.6, 11 June 2010, RC/11.
61
Art 15bis(2) ICC Statute. See further C Kreß and L von Holtzendorff, ‘The Kampala Compromise on the
Crime of Aggression’ (2010) 8 JICJ 1179.
62
Assembly of States Parties, ‘Draft resolution proposed by the Vice-Presidents of the Assembly Activation of the
jurisdiction of the Court over the crime of aggression’, 14 December 2017, ICC-ASP/16/L.10, operative clause 1.
63
See above (n 59).
64
Art 8bis(1) ICC Statute.
65
ibid (emphasis added).
 DEFINITIONS OF INTERNATIONAL CRIMES 751

of which as a distinct crime under customary international law is uncertain and/or over
which no supranational criminal jurisdiction can be exercised. They belong to the realm of
‘transnational criminal law’ (see above, Section I). Terrorism and torture are transnational
crimes that may nevertheless have entered the realm of international criminal law, and will
be discussed respectively. Treaty crimes that will not be discussed notably include piracy,66
drug trafficking,67 trafficking in persons68 and the crime of enforced disappearance.69

i. Crime of Terrorism
Various manifestations of terrorism have been criminalised by sectoral international
conventions on terrorism.70 Yet, it is unclear whether terrorism constitutes a crime under
customary international law in and of itself. The STL has held that ‘a customary rule of
international law regarding the crime of terrorism, at least in time of peace, has indeed
emerged’.71 In the STL’s view, this crime of terrorism consists of:
(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so
on), or threatening such an act; (ii) the intent to spread fear among the population (which would
generally entail the creation of public danger) or directly or indirectly coerce a national or inter-
national authority to take some action, or to refrain from taking it; (iii) when the act involves a
transnational element.72

However, this finding of the STL has been heavily criticised.73 Mainly because on the
inter- national level, there is no generally accepted definition of terrorism, most agree
that ‘there is currently no solid consensus in international practice as to the existence
of the international crime of terrorism in customary international law’.74
The disagreement on the international level as regards the definition of terrorism is best
illustrated by the failure to reach consensus on a (Draft) Comprehensive Convention on
International Terrorism (CCIT).75 In 1996, the UN General Assembly established an

66
cp Ambos (n 33) 241: ‘piracy comes very close to an international crime stricto sensu’. For the
definition of piracy, see Art 101 UNCLOS. From the perspective of the law of the sea, see Chapter 18,
Section V(E)(i)(a).
67
See the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 95.
68
See the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
(adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, supplementing the United
Nations Convention against Transnational Organized Crime (n 2), with a definition of ‘trafficking in persons’ in
Art 3(a).
69
Enforced disappearance can constitute a crime against humanity (eg Art 7(1)(i) ICC Statute). For a defi-
nition, see Art 2 Enforced Disappearance Convention. From a human rights law perspective, see Chapter 16,
Section III(C). Further, see eg B Finucane, ‘Enforced Disappearance as a Crime under International Law:
A Neglected Origin in the Laws of War’ (2010) 35 Yale Journal of International Law 171.
70
See eg above (n 2). For the full list of the 12 sectoral international conventions dealing with terrorism,
see UN Office of Counter-Terrorism, ‘International Legal Instruments’, un.org/en/counterterrorism/legal-instru-
ments.shtml.
71
STL, Interlocutory Decision (n 9) para 85. Note that terrorism in time of armed conflict is – at least accord-
ing to most – a different matter, and one that goes beyond the scope of this chapter. See further A Bianchi and
Y Naqvi, International Humanitarian Law and Terrorism (Oxford, Hart, 2011).
72
STL, Interlocutory Decision (n 9) para 85.
73
See eg B Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon
Invents an International Crime of Transnational Terrorism’ (2011) 24 LJIL 677.
74
Bianchi and Naqvi (n 71) 285. Further, see notably B Saul, Defining Terrorism in International Law (Oxford,
OUP, 2006) 191–270, concluding that ‘arguments that terrorism is a customary international crime are premature’
(ibid, 270). But see Cassese (n 21) 148–49, arguing that such a crime exists.
75
See the Annexes to the Report of the Ad Hoc Committee established by General Assembly resolution 51/210
of 17 December 1996, Sixth session (28 January–1 February 2002), GAOR Fifty-seventh Session, Supplement
No 37, 11 February 2002, UN Doc A/57/37.
752 INTERNATIONAL CRIMINAL LAW

Ad Hoc Committee, inter alia to develop ‘a comprehensive legal framework of

conventions dealing with international terrorism’.76 While the debate on the CCIT has been
going on since 2000,77 there is persistent disagreement among States mainly as to whether
armed struggles for self-determination, or, more generally, the activities of non-State
parties to an armed conflict, should be excluded from the scope of the Convention, as well
as to whether ‘State terrorism’ should fall within the CCIT’s scope of application.78 While,
in December 2016, the UNGA revived the process by recommending its Sixth Committee
to ‘establish a working group with a view to finalizing the process on the draft
comprehensive convention on international terrorism’,79 it remains to be seen whether
States will reach an agreement on the CCIT any time soon.

ii. Crime of Torture80

Unlike what is the case for terrorism, most agree that torture is an international crime. 81
The crime of torture is outlawed by the 1984 UN Convention against Torture, as well as the
1985 Inter-American Convention to Prevent and Punish Torture.82 In Questions relating to
the Obligation to Prosecute or Extradite, the ICJ noted that ‘the Parties agree that acts of
torture are regarded by customary international law as international crimes, independently
of the [UN Convention] against torture’,83 and held that ‘the prohibition of torture is part
of customary international law and it has become a peremptory norm (jus cogens)’.84 The
international community accepts the main elements of the definition of torture as contained
in Article 1(1) of the UN Convention against Torture,85 providing that
the term ‘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 or a third person
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an

76
UNGA Res 51/210, 17 December 1996, UN Doc A/RES/51/210, operative clause 9.
77
See the initial ‘Draft Comprehensive Convention on International Terrorism’, Working document submitted
by India, 28 August 2000, UN Doc A/C.6/55/1.
78
M Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism Major Bones of
Contention’ (2006) 4 Journal of International Criminal Justice 1031, 1031–43.
79
UNGA Res 71/151, 20 December 2016, UN Doc A/RES/71/151.
80
See also Chapter 16, Section III(B), which deals with torture from a human rights law perspective.
81
eg Cassese (n 21) 134. See, however, Ambos (n 33) 245, holding that ‘it is doubtful whether the fact that
torture constitutes a dignity violation suffices to make it a true international crime’ and that ‘isolated
incidents of torture do not amount to true international crimes’.
82
Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force
28 February 1987) OAS Treaty Series No 67. See also the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February
1989) CETS No 126, which does not serve to outlaw the crime of torture, but relies on the prohibition of torture
contained in Art 3 ECHR to establish ‘a European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment’ (CPT), on which see Chapter 16, Section IX(C).
83
Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, para 97.
84
ibid, para 99.
85
ICTY, Trial Chamber, Prosecutor v Delalić et al, 16 November 1998, Case No IT-96-21-T, paras 455–74;
ICTY, Trial Chamber, Prosecutor v Furundzija, 10 December 1998, IT-95-17/1-T, para 257; Kunarac (n 44)
paras 483–97;
see Cassese (n 21) 132.
 INDIVIDUAL CRIMINAL RESPONSIBILITY 753

official capacity. It does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
The different elements of the crime of torture deserve to be highlighted. First, it must
concern ‘severe’ pain or suffering.86 Second, the infliction of the suffering must be inten-
tional. Third, the UN Convention against Torture introduces a purpose requirement.
Even if torture can be committed not only for the purpose of obtaining information or a
confession, punishment, intimidation or coercion, but also ‘for any other purpose based
on discrimination of any kind’ – a fairly open-ended formula – an instrumental purpose
remains required, distinguishing ‘the phenomenon of torture from isolated sadism more
properly the concern of domestic law’.87 Lastly, the ‘participation of a de jure or de facto
state official’ is required.88 Note that while torture can constitute a crime of genocide,
crime against humanity or war crime, 89 the distinct international crime of torture does not
require the specific elements that attach to the respective core crimes of international law.90

II. Individual Criminal Responsibility

A. Modes of Liability

International crimes, apart from war crimes perhaps, are, unlike regular crimes, not normally
committed by just one person. They are collective crimes, in which often a large number of
individuals at multiple levels of responsibility are involved. In ICL, ‘the paradigmatic
offender is often the person who orders, masterminds, or takes part in a plan at a high
level’.91 The collective nature of international criminality does not do away with the need
to establish individualised guilt and responsibility. This explains why ICL has developed
rather intricate ‘modes of liability’. In the ICC Statute, for example, these modes of
liability are laid down in Article 25.
The basic premise of responsibility in ICL is that an individual’s criminal respon-
sibility can only be engaged if he or she is personally culpable of a crime; collective
punishment is not allowed.92 Obviously, those who commit a crime as a principal perpe-
trator or co-perpetrator can be punished. 93 But a host of other forms of participation can
also engage an individual’s criminal responsibility, such as planning (at the ad hoc tribu-
nals, not the ICC);94 ordering,95 instigating (at the ad hoc tribunals)96 or soliciting/inducing

86
See Chapter 16, Section IX(A)(i), n 257 on the ECtHR’s jurisprudence on the required degree of intensity.
See, however, Art 2 of the Inter-American Convention to Prevent and Punish Torture (n 82), which does not
require that the suffering be ‘severe’.
87
Cassese (n 21) 133.
88
ibid, 133. See also Art 3 of the Inter-American Convention to Prevent and Punish Torture (n 82).
89
Ambos (n 33) 245.
90
eg, the crime of torture may be committed in time of peace or in time of war; Kunarac (n 44) paras 488–97.
91
Cryer et al (n 22) 361.
92
Art 25(2) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute. See also ICTY, Appeals Chamber, Prosecutor
v Tadić, 15 July 1999, Case No IT-94-1-A, para 186.
93
Art 25(3)(a) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute.
94
Art 7 ICTY Statute; Art 6 ICTR Statute.
95
Art 25(3)(b) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute.
96
Art 7 ICTY Statute; Art 6 ICTR Statute.
754 INTERNATIONAL CRIMINAL LAW

(at the ICC);97 aiding and abetting;98 and in any other way contributing to a crime by a
group acting with a common purpose (at the ICC, not the ad hoc tribunals). 99 While, before
the ad hoc tribunals, the relevant modes of liability required that the crime was eventually
perpetrated, at the ICC it suffices that the crime was attempted. 100 This is linked with the
fact that, as opposed to the statutes of the ad hoc tribunals, Article 25 of the ICC Statute
also criminalises the attempt to commit a crime, provided that the perpetrator takes action
that commences the execution of a crime by means of a substantial step, but the crime does
not occur because of circumstances independent of his or her intentions.101
ICL does not criminalise conspiracy, ie an agreement to commit a crime regardless of
whether that crime materialises, with the exception of conspiracy to commit genocide (at
the ad hoc tribunals, not the ICC), 102 which is a distinct, inchoate offence rather than a
mode of liability.103 The same goes for direct and public incitement to commit genocide, 104
which is criminalised by the statutes of the ad hoc tribunals as well as the ICC.105

B. Joint Criminal Enterprise

The ICTY did not consider the modes of liability contained in its Statute to be sufficient to
capture the responsibility of notably those who planned or designed international crimes at
hierarchically higher levels. In 1999, in the Tadić case, the ICTY Appeals Chamber derived
the concept of ‘joint criminal enterprise’ (JCE) from the object and purpose of the ICTY
Statute and the Nuremberg case law, in order to be able to punish criminal leaders who did
not physically commit any crimes.106
The actus reus of a JCE consists of: (i) ‘a plurality of persons’, who ‘need not be organ-
ised in a military, political or administrative structure’; and who have (ii) ‘a common plan,
design or purpose which amounts to or involves the commission of a crime provided for in
the [ICTY] Statute’.107 It is not required that this plan, design or purpose has been ‘previ-
ously arranged or formulated’.108 Moreover, ‘[t]he common plan or purpose may
materialize extemporaneously and be inferred from the fact that a plurality of persons acts
in unison to put into effect a [JCE]’.109 Third, (iii) the accused must have participated in the
common plan or purpose. ‘This participation need not involve the commission of a specific
crime […], but may take the form of assistance in, or contribution to, the execution of the
common plan or

97
Art 25(3)(b) ICC Statute.
98
Art 25(3)(c) ICC Statute; Art 7 ICTY Statute; Art 6 ICTR Statute. ‘Aiding’ refers to practical assistance,
whereas ‘abetting’ refers to moral assistance. A suspect must knowingly provide a substantial contribution to the
commission of the crime before he or she can be held accountable as an aider or abettor.
99
Art 25(3)(d) ICC Statute.
100
Art 25(3)(b)–(d) ICC Statute.
101
Art 25(3)(f) ICC Statute.
102
Art 3(b) Genocide Convention; Art 4(3)(b) ICTY Statute; Art 2(3)(b) ICTR Statute. But see also US et al
v Göring et al (n 5) 447, finding conspiracy to commit aggression to be criminal.
103
See eg ICTY, Appeals Chamber, Prosecutor v Tolimir, 8 April 2015, Case No IT-05-88/2-A, para 582.
104
See eg ICTR, Appeals Chamber, Nahimana, Barayagwiza and Ngeze v Prosecutor, 28 November 2007,
Case No ICTR-99-52-A, para 678.
105
Art 25(3)(e) ICC Statute; Art 4 ICTY Statute; Art 2 ICTR Statute.
106
Tadić (n 92) paras 185–229.
107
ibid, para 227.
108
ibid.
109
ibid.
 INDIVIDUAL CRIMINAL RESPONSIBILITY 755

purpose’.110 The participation need not constitute a conditio sine qua non for the
execution of the plan or purpose. But, as the ICTY Appeals Chamber held in Brđanin:
‘although the contribution need not be necessary or substantial, it should at least be a
significant contri- bution to the crimes for which the accused is to be found
responsible’ (emphasis added).111 JCE may come in three categories: a basic (JCE I),
systematic (JCE II) and extended (JCE III) version. The basic category concerns a
form of co-perpetration, where all co-defendants, acting pursuant to a common
design, possess the same criminal intention, and one or more of them actually
perpetrates the crime.112 The systematic category, which is a variant of the basic
version, punishes participation in the design of an organised system to ill-treat
detainees and commit various crimes (the concentration camp scenario).113 The
extended category pertains to ‘a common design to pursue one course of conduct
where one of the perpetrators commits an act which, while outside the common
design, was nevertheless a natural and foreseeable consequence of the effecting of that
common
purpose’.114
While the actus reus is the same for all JCE categories, the mens rea differs according
to the category of JCE under consideration. 115 Still in Tadić, the ICTY Appeals Chamber
held that:
With regard to the first category, what is required is the intent to perpetrate a certain crime
(this being the shared intent on the part of all co-perpetrators). With regard to the second
category […], personal knowledge of the system of ill-treatment is required […], as well as
the intent to further this common concerted system of ill-treatment. With regard to the third
category, what is required is the intention to participate in and further the criminal activity or
the criminal purpose of a group and to contribute to the joint criminal enterprise or in any
event to the commission of a crime by the group. In addition, responsibility for a crime other
than the one agreed upon in the common plan arises only if, under the circumstances of the
case, (i) it was foreseeable that such a crime might be perpetrated by one or other members
of the group and (ii) the accused willingly took that risk.116

Every person who participates in a JCE is considered to be a principal perpetrator. Thus,

the JCE doctrine follows a subjective approach, which
moves the focus from the level of contribution to the commission of the offence as the
distinguish- ing criterion between principals and accessories, and places it instead on the state of
mind in which the contribution to the crime was made. As a result, only those who make their
contribution with the shared intent to commit the offence can be principals to the crime,
regardless of the level of their contribution to its commission.117
Perhaps not surprisingly, ‘the vague “elastic” nature of the doctrine has led to claims that it
is overbroad, thus reliant on prosecutorial discretion rather than law to keep it in check’.118

110
ibid; eg Stevanović (n 22) para 57: the accused needs to assist or contribute. Mere presence does not
suffice in and of itself for the accused to be considered part of a JCE.
111
ICTY, Appeals Chamber, Prosecutor v Brđanin, 3 April 2007, Case No IT-99-36-A, para 430.
112
Tadić (n 92) para 196.
113
ibid, para 202.
114
ibid, para 204.
115
ibid, para 228.
116
ibid, para 228.
117
ICC, Pre-Trial Chamber I, Prosecutor v Lubanga, Decision on the Confirmation of Charges, 29 January 2007,
Case No ICC-01/04-01/06, para 329.
118
Cryer et al (n 22) 373.
756 INTERNATIONAL CRIMINAL LAW

According to some, the doctrine, and especially its extended version (JCE III),
constitutes ‘a violation of the basic principle that individuals should only be criminally
liable to the extent of their own culpability’ (see above, Section IV(A)).119 Again
others argue that the doctrine, including JCE III, ‘is firmly established in customary
international law’.120

C. Co-Perpetration by Control over the Crime

When faced with situations similar to the ones outlined as regards JCE, the ICC relies on
a different mode of liability. Article 25(3)(a) of the ICC Statute provides that a person is
criminally responsible if he or she ‘[c]ommits […] a crime, whether as an individual,
jointly with another or through another person, regardless of whether that other person is
crimi- nally responsible’. Based on a reading of that provision in conjunction with
Article 25(3)
(d) of the ICC Statute,121 the Statute is considered to exclude the (subjective) JCE doctrine
developed by the ICTY.122 Neither does the ICC accept an objective approach, according
to which ‘only those who physically carry out one or more of the objective elements of the
offence can be considered principals to the crime’. 123 The ICC follows a third approach,
namely ‘co-perpetration by control over the crime’, which was originally developed by the
German scholar Claus Roxin.124 According to ICC Trial Chamber I:
The notion underpinning this third approach is that principals to a crime are not limited to those
who physically carry out the objective elements of the offence, but also include those who, in
spite of being removed from the scene of the crime, control or mastermind its commission
because they decide whether and how the offence will be committed.125
As is the case for JCE, co-perpetration by control over the crime requires the objective
element of an agreement or common plan. 126 This agreement or common plan must
include an ‘element of criminality’, but must not be specifically directed at the commis-
sion of a crime.127 It need not be previously arranged, but can arise contemporaneously,128

119
JD Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 JICJ 69, 71
and 76.
120
Cassese (n 21) 170.
121
Art 25(3)(d) ICC Statute holds criminally responsible the person who: ‘In any other way contributes to
the commission or attempted commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the
criminal activity or criminal purpose of the group, where such activity or purpose involves the commission
of a crime within the juris- diction of the Court; or (ii) Be made in the knowledge of the intention of the
group to commit the crime’; see also above, Section IV(A), n 99.
122
Lubanga, Confirmation of Charges (n 117) paras 322–41; cp G Bitti, ‘Article 21 and the Hierarchy of
Sources of Law before the ICC’ in C Stahn, The Law and Practice of the International Criminal Court (Oxford,
OUP, 2015) 431.
123
Lubanga, Confirmation of Charges (n 117) para 328.
124
See notably C Roxin, ‘Crimes as Part of Organized Power Structures’ (2011) 9 JICJ 193.
125
Lubanga, Confirmation of Charges (n 117) para 330.
126
ibid, para 343. ICC, Pre-Trial Chamber II, Prosecutor v Bemba, Decision Pursuant to Article 61(7)(a) and (b)
of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009,
Case No ICC-01/05-01/08, para 350.
127
Lubanga, Confirmation of Charges (n 117) para 344.
128
ICC, Appeals Chamber, Prosecutor v Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo
against His Conviction, 1 December 2014, Case No ICC-01/04-01/06 A 5, para 445.
 INDIVIDUAL CRIMINAL RESPONSIBILITY 757

and must not be explicit, but ‘can be inferred from the subsequent concerted action of
the co-perpetrators’.129 In addition, each co-perpetrator must make an ‘essential contri-
bution […] resulting in the realisation of the objective elements of the crime’ (emphasis
added).130 In this respect, co-perpetration differs from JCE, which only requires a ‘signifi-
cant’ contribution (see above, Section IV(B)). Indeed, while for a JCE, it is not required
that the contribution of the accused constitutes a conditio sine qua non, for co-perpetration,
‘only those to whom essential tasks have been assigned – and who, consequently, have the
power to frustrate the commission of the crime by not performing their tasks – can be said
to have joint control over the crime’.131
With respect to the mens rea, the co-perpetrator must first fulfil the subjective elements
of the crime in question.132 Second, co-perpetrators: (i) must be mutually aware that
‘imple- menting the common plan will result in the fulfilment of the material elements of
the crimes’; and (ii) nevertheless purposefully ‘bring about the material elements of the
crimes’, or be ‘aware that in the ordinary course of events, the fulfilment of the material
elements will be a virtually certain consequence of their actions’. 133 Third, the co-
perpetrator must be aware of ‘the factual circumstances enabling him or her to jointly
control the crime’.134

D. Command Responsibility

A last mode of liability that is characteristic for ICL and largely unknown to domestic
law135 concerns command or superior responsibility. 136 Again, because the commission
of international crimes almost always involves the machinery of the State or at least an
organised entity, the need was felt to hold military commanders as well as civilian
superiors responsible even if they did not directly commit any crimes. What characterises
command responsibility is that it concerns a form of omission liability attached to a failure
to comply with particular duties that rest upon commanders or superiors.
Commanders and superiors are criminally responsible for crimes committed by forces
under their command, respectively authority, if they fail to prevent or punish these crimes.
Accordingly, a first requirement is that there is a ‘relationship of subordination’ between
the

129
ibid; Lubanga, Confirmation of Charges (n 117) para 345.
130
Lubanga, Confirmation of Charges (n 117) para 346; Bemba (n 126) para 350.
131
Lubanga, Confirmation of Charges (n 117) para 347; Lubanga, Appeal (n 128) para 469.
132
Lubanga, Confirmation of Charges (n 117) para 349.
133
Bemba (n 126) para 370; Lubanga, Appeal (n 128) paras 447–51.
134
Lubanga, Confirmation of Charges (n 117) para 366; Bemba (n 126) para 371.
135
However, it is included in Section 4 of the German Code of Crimes against International Law, (2002) 42
Bundesgesetzblatt, Part I, 2254 and Art 9(1) of the Dutch Act of 19 June 2003 containing rules concerning serious
violations of international humanitarian law (International Crimes Act), (2003) Staasblad 270. For an applica-
tion, see respectively Federal Court of Justice (DE), IM, Decision on Pretrial Detention, 17 June 2010, Case No
AK 3/10; District Court of The Hague (NL), Public Prosecutor v F, 25 June 2007, NL:GHSGR:2009:BK8758.
136
See Art 28 ICC Statute; Art 7(3) ICTY Statute; Art 6(3) ICTR Statute. It is contested wheter command
responsibility constitutes a mode of liability or a crime per se; cp Cassese (n 21) 191–92. Arguably, it has a ‘sui
generis, uniqe nature’; ibid, 191. It is a ‘hybrid form of liability, combining aspects of a mode of liability and a
separate offence liability’; E van Sliedregt, Individual Criminal Responsibility in International Law (Oxford,
OUP, 2012) 196. See further C Meloni, ‘Command Responsibility: Mode of Liability for the Crimes of
Subordinates or Separate Offence of the Superior? (2007) 5 JICJ 619.
758 INTERNATIONAL CRIMINAL LAW

commander or superior and the subordinate(s) concerned – be it de jure or de facto – in the

context of which the former exercises ‘effective control’ over the latter.137
Second, commanders or superiors can only be held criminally responsible if they had
‘actual or contructive knowledge’ – ie if they knew or should have known – that their
forces were committing or were about to commit such crimes. 138 For the ICTY, construc-
tive knowledge means ‘reason to know’, meaning that a commander or superior would be
criminally responsible ‘only if information was available to him which would have put him
on notice of offences committed by subordinates’.139 The ICC Statute requires that the
military commander ‘should have known, owing to the circumstances at the time’.140 This
is interpreted as a ‘form of negligence’, 141 requiring ‘more of an active duty on the part of
the superior to take the necessary measures to secure knowledge of the conduct of his
troops and to inquire, regardless of the availability of information at the time on [sic] the
commis- sion of the crime’.142 In the case of civilian superiors, on the other hand, the
Statute requires that they ‘either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing or about to commit such
crimes’.143
Third and lastly, to be liable for the crimes concerned, the commander or superior must
have ‘failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission’.144 The duties to prevent and repress or punish are
distinct; a failure to prevent certain crimes cannot be cured by the subsequent punishment
of these crimes.145 What is expected from the commander or superior is ‘inextricably
linked to the facts of each particular situation’ 146 and depends on ‘the degree of effective
control he wielded over his subordinates’.147

E. Defences: Justifications and Excuses

In a limited number of situations, individuals can escape criminal responsibility by invok-

ing a defence, be it a justification or excuse. Criminal conduct may be ‘justified’ because it
was preferable to even worse alternatives, or it can be ‘excused’ when ‘it was produced by
an impairment of a person’s autonomy to such a degree as to negate [its]
blameworthiness’.148

137
ICTY, Appeals Chamber, Prosecutor v Delalić et al, 20 February 2001, Case No IT-96-21-A, paras 197–98;
Bemba (n 126) paras 411–15. For factors that are indicative of effective control, see Bemba (n 126) para 417.
See further Cassese (n 21) 187–89.
138
Cassese (n 21) 189.
139
Delalić (n 137) para 241.
140
Art 28(2) ICC Statute.
141
Bemba (n 126) para 429.
142
ibid, para 433. See Cassese (n 21) 190.
143
Art 28(b)(i) ICC Statute.
144
ibid, Art 28(a)(ii) and (b)(iii), which add ‘[…] or to submit the matter to the competent authorities for investi-
gation and prosecution’. Art 7 ICTY Statute and Art 6 ICTR Statute contain a nearly identical provision, but do
not explicitly include the latter option, which would nevertheless normally also under the ICTY and ICTR Statute
discharge the commander or superior of his or her duties.
145
ICTY, Trial Chamber, Prosecutor v Blaškić, 3 March 2000, Case No IT-95-14-T, para 336.
146
Delalić (n 137) para 394.
147
ICTY, Appeals Chamber, Prosecutor v Blaškić, 29 July 2004, Case No IT-95-14-A, para 72.
148
Cassese (n 21) 210.
 INDIVIDUAL CRIMINAL RESPONSIBILITY 759

Article 31(1) of the ICC Statute lists one justification: self-defence. 149 An action taken
in self-defence which is normally criminal is not unlawful if: (i) it responds to an imminent
or actual unlawful use of force against the person acting in self-defence or another person;
(ii) there is no alternative way to stop or prevent that use of force; (iii) the person acting
in self-defence has not caused the use of force; and (iv) the action taken in self-defence is
proportionate to the use of force to which it reacts.150 The ICC Statute controversially adds
the possibility to act in self-defence in response to war crimes against ‘property which is
essential for the survival of the person or another person or property which is essential for
accomplishing a military mission’.151
Article 31(1) also lists three excuses: a mental disease or defect,152 a state of
intoxication153 and duress.154 As to the last excuse, it must concern 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 [must act] 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.

As illustrated by the Erdemović case at the ICTY, duress is not easily accepted. Erdemović
was a member of the Bosnian Serb Army who, as a member of an execution squad, partici-
pated in the shooting of unarmed Bosnian Muslims. He argued that when he had refused
to shoot the civilians, his commander had threatened to kill him as well. Nevertheless, the
ICTY Appeals Chamber found ‘that duress does not afford a complete defence to a soldier
charged with a crime against humanity and/or a war crime involving the killing of innocent
human beings’.155
Further, criminal responsibility is excused before the ICC in the exceptional case that a
mistake of fact (eg executing a person assuming that he or she had been duly convicted) 156
or mistake of law negates the mental element required by the crime concerned. 157 ‘Obedi-
ence to superior orders’ can be considered to constitute a particular type of mistake of
law which may excuse criminal responsibility in exceptional circumstances. 158 Article 33
of the ICC Statute provides that the fact that a crime has been committed pursuant to an
order by a superior ‘shall not relieve that person of criminal responsibility unless:
(a) [t]he person was under a legal obligation to obey orders’; (b) ‘did not know that the

149
Art 31(1)(c).
150
Cassese (n 21) 211.
151
See ibid, 212–13, arguing that the extension to acts of self-defence against property is problematic and that it
broadens the customary international law definition of self-defence.
152
Art 31(1)(a) ICC Statute.
153
ibid, Art 31(1)(b). This ground cannot be invoked where ‘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’.
154
ibid, Art 31(1)(d).
155
ICTY, Appeals Chamber, Prosecutor v Erdemović, 7 October 1997, Case No IT-96-22-A, para 19. Note that
two of the five judges on the bench dissented. See Cassese (n 21) 218.
156
Art 32(1) ICC Statute.
157
ibid, Art 32(2).
158
cp Cassese (n 21) 231.
760 INTERNATIONAL CRIMINAL LAW

order was unlawful; and (c) [t]he order was not manifestly unlawful’. However, ‘orders
to commit genocide or crimes against humanity are manifestly unlawful’.159 Thus, the
defence of superior orders can never relieve the subordinate of responsibility for such
crimes, but can exceptionally do so for war crimes. This defence prevents
insubordination and avoids soldiers having to decide on controversial legal questions.
Nevertheless, it is excluded by the statutes of the ICTY and ICTR,160 appears to be at
odds with customary international law and has rarely been accepted in case law.161

III.International Criminal Tribunals

A. Establishment and Design

International criminal tribunals were only established after the end of the Second World
War. Typically, they were established ad hoc, ie in relation to specific events that are
circumscribed in time and place. However, the ICC has been established as a permanent
international tribunal with a quasi-universal remit.
The first international criminal tribunals were the International Military Tribunal (IMT)
at Nuremberg,162 and the International Military Tribunal for the Far East (IMTFE) at
Tokyo,163 which were established in the immediate aftermath of World War II. The IMT
brought to justice the major war criminals belonging to Nazi Germany,164 12 of whom
were eventually executed. The IMTFE prosecuted the major Japanese war criminals, 165
seven of whom were executed. There is no doubt that these prosecutions represented
victor’s justice, as the tribunals did not have jurisdiction over crimes committed by the
Allied Powers and were composed of representatives of the war’s victorious nations.
Nevertheless, they repre- sented a watershed: the international community had finally
signalled that atrocities would no longer go unpunished. The most famous holding of the
IMT, which has become a ‘foun- dational statement’ in ICL,166 was probably the following:
Crimes against international law are committed by men, not abstract entities, and only by
punish- ing individuals who commit such crimes can the provisions of international law be
enforced. […] [I]ndividuals have international duties which transcend the national
obligations of obedience imposed by the individual state.167
In 1950, the legal legacy of the tribunals was laid down in the ILC’s ‘Principles of Interna-
tional Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of
the Tribunal’.168
159
Art 33(2) ICC Statute.
160
Art 7(4) ICTY Statute; Art 6(4) ICTR Statute.
161
See Cassese (n 21) 231–37.
162
See above (n 35).
163
See the Charter of the International Military Tribunal for the Far East (19 January 1946) 82 UNTS 284
(IMTFE Charter).
164
See Arts 1 and 6 Nuremberg Charter (n 35), referring to ‘the major war criminals of the European Axis’.
However, no war criminals belonging to the Italian Fascist regime appeared before the IMT.
165
See Arts 1 and 5 IMTFE Charter (n 163), respectively referring to ‘the major war criminals in the Far East’ and
‘Far Eastern war criminals’.
166
Cryer et al (n 22) 113.
167
US et al v Göring et al (n 5) 447.
168
ILC, ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal’ (1950) YILC, Vol II, 374–78.
 INTERNATIONAL CRIMINAL TRIBUNALS 761

While East-West tensions precluded the establishment of international criminal tribu-

nals during the Cold War, the Nuremberg paradigm paved the way for the establishment,
in the 1990s, of two ad hoc tribunals to prosecute the perpetrators of international crimes
committed in Yugoslavia (ICTY) and Rwanda (ICTR), as well as the ICC. The ICTY and
ICTR were established on the basis of resolutions of the UN Security Council, 169 a process
the legality of which was confirmed by the ICTY in the Tadić case.170 After more than
20 years since their establishment, the ICTR closed on 31 December 2015 and the ICTY
on 31 December 2017. In 2010, ‘in view of the substantially reduced nature of the resid-
ual functions’ of both tribunals, the UN Security Council established the United Nations
Mechanism for International Criminal Tribunals (MICT), ‘a small, temporary and efficient
structure’, which continues ‘the jurisdiction, rights and obligations and essential func-
tions of the ICTY and the ICTR’ and will finish their work. 171 As opposed to the ICTY
and ICTR, the ICC came into being on the basis of a multilateral treaty, the Rome Stat-
ute of the International Criminal Court (ICC Statute), 172 which, in October 2018, counts
123 State Parties.173
The EU and its Member States were particularly instrumental in the establishment of
the ICC Statute,174 and all EU Member States have ratified it. Since its establish- ment,
the EU and its Member States have been the staunchest supporters of the Court.175 In
2011, the Council adopted a decision on the ICC. 176 This decision aims to: (i) advance
universal support for the ICC by promoting the widest possible participation in its Statute;
(ii) preserve the integrity of the Court; (iii) support its independence and its effective and
efficient functioning; (iv) enhance cooperation with the Court; and (v) support the imple-
mentation of the principle of complementarity (on which see below, Section V(C)(i)).177
The implementation of the decision is furthered by the Council’s Action Plan of 2011.178 In
particular, the EU aims to encourage States which have not yet ratified the ICC Stat- ute
to do so, and to provide technical and/or financial assistance to those States that may

169
See respectively UNSC Res 827 (n 14) and UNSC Res 955 (n 14).
170
Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (n 51) paras 28–48.
171
UNSC Res 1966, 22 December 2010, UN Doc S/RES/1966, preambular para 7 and operative clauses 1 and 4.
172
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force on 1 July 2002)
2187 UNTS 90.
173
Note that the last change in the number of State Parties to the ICC Statute was caused by the withdrawal of
Burundi (notified 27 October 2016, effective as of 27 October 2017) in a context of troubled relations between
the ICC and many African countries. While South Africa and Gambia had also formally notified the UN
Secretary General that they would withdraw from the ICC Statute on respectively 19 October 2016 and 10
November 2016, they withdrew these notifications on 7 March 2017 and 10 February 2017 respectively. The
Philippines has notified the UNSG that it will withdraw from the ICC Statute on 17 March 2018 – a notification
which, when it becomes effective on 17 March 2019, will reduce the number of State Parties to the ICC Statute to
122. See UN Treaty Collection, ‘Rome Statute of the International Criminal Court’, status as at 1 October 2018,
treaties.un.org/Pages/ ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XVIII-
10&chapter=18&lang=en.
174
See further J Wouters and S Basu, ‘The Creation of a Global Criminal Justice System: The European Union
and the International Criminal Court’ in C Ryngaert (ed), The Effectiveness of International Criminal Justice
(Antwerp, Intersentia, 2009) 117–42.
175
O Bekou, ‘Mainstreaming Support for the ICC in the EU’s Policies’, Study for the Directorate-General for
External Policies of the Union of the European Parliament, March 2014, EXPO/B/DROI/2013/28, 8. Further,
see eg M Groenleer, ‘The United States, the European Union, and the International Criminal Court: Similar
Values, Different Interests?’ (2015) 13 I•CON 923.
176
Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing
Common Position 2003/444/CFSP [2011] OJ L76/56.
177
ibid, Art 1(2).
178
Council of the EU, ‘Action Plan to follow-up on the Decision on the International Criminal Court’, 12
July 2011, 12080/11, Annex.
762 INTERNATIONAL CRIMINAL LAW

be willing but are unable to do so. 179 Through their 2006 Agreement on Cooperation and
Assistance, the EU and the ICC have mutually committed themselves to cooperate closely
and consult each other on matters of mutual interest. 180 To further the implementation of
the principle of complementarity, the European Commission and the High Representative
have jointly adopted a ‘Complementarity Toolkit’, the aim of which is to provide practical
guidance to EU officials, Union Delegations and Member States on how to support and
reinforce justice systems in third countries so that they can fully exercise their jurisdiction
over crimes that fall within the purview of the ICC Statute.181
The ICC, ICTY and ICTR are all truly international tribunals, which apply international
(criminal) law and are composed of international judges and prosecutors. In the early
2000s, however, to create more local ownership of accountability efforts, as well as to cut
costs, the international community pressed for the establishment of ‘mixed’, ‘hybrid’ or
‘internation- alised’ tribunals. These would apply a mixture of international and domestic
criminal law, be based in the country were the crimes were committed, 182 would be
composed of inter- national and domestic prosecutors and judges, and could entrench the
rule of law locally. Thus, on the basis of cooperation between the UN and the State
concerned, the STL,183 the SCSL,184 the ECCC185 and the Special Panels for East Timor186
were established.
Sometimes, regional organisations play a primary role in the establishment of hybrid
tribunals. Thus, on the basis of an agreement concluded between the African Union and
Senegal,187 Extraordinary African Chambers were established to try the former Chadian
dictator Hissène Habré, after the ICJ ruled that Senegal had violated the UN Convention

179
ibid, 7–8.
180
Agreement between the International Criminal Court and the European Union on Cooperation and Assistance
(adopted 10 April 2006, entered into force 1 May 2006) [2006] OJ L115/50, Art 4. See further G Hafner,
‘Selected Legal and Policy Implications Arising from the EU–ICC Agreement of 2006’ in FANJ Goudappel and
EMH Hirsch Ballin (eds), Democracy and Rule of Law in the European Union (The Hague, TMC Asser, 2016)
203–24. 181 EC and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint Staff Working
Document on Advancing the Principle of Complementarity: Toolkit for Briding the Gap between International
and National Justice’, 31 January 2013, SWD(2013) 26 final, 2. Further, see eg A Antoniadis and O Bekou, ‘The
European Union and the International Criminal Court: An Awkward Symbiosis in Interesting Times’ (2007) 7
International Criminal Law Review 621.
182
The ICTY was and the ICC is based in The Hague (the Netherlands); the ICTR in Arusha (Tanzania).
183
See the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special
Tribunal for Lebanon (adopted 22 January 2007 (Beirut) – 6 February 2007 (New York), entered into force
10 June 2007) 2461 UNTS 257. As eventually the Lebanese parliament did not convene to vote on the ratifica-
tion of the Agreement, it was UNSC Res 1757, 30 May 2007, UN Doc S/RES/1757, which formally made the
Agreement enter into force and established the STL, rather than the Agreement itself.
184
See the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of
a Special Court for Sierra Leone (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 137.
185
See the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution
of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001, Preah Reach Kram
No NS/RKM/0801/12, as amended on 27 October 2004, Preah Reach Kram No NS/RKM/1004/006. The law was
endorsed by the Agreement between the United Nations and the Royal Government of Cambodia concerning the
Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea (adopted
6 June 2003, entered into force 29 April 2005) 2329 UNTS 117.
186
In full the District Court of Dili Special Panels of Serious Crimes (SPSC). The SPSC were established by
the UN Transitional Administration in East Timor (UNTAET) by Regulation No 2000/15 on the Establishment
of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UNTAET/REG/2000/15; the
UNTAET was in turn mandated by UNSC Res 1272, 25 October 1999, UN Doc S/RES/1272.
187
Agreement between the Government of the Republic of Senegal and the African Union on the
Establishment of Extraordinary African Chambers within the Senegalese Judicial System (adopted 22
August 2012, entered into force 30 January 2013) 52 ILM 1024.
 INTERNATIONAL CRIMINAL TRIBUNALS 763

against Torture by failing to prosecute Habré, who had found refuge in Senegal. 188 Pursu-
ant to an agreement between the EU and the Kosovo authorities,189 the Kosovo Specialist
Chambers and Specialist Prosecutor’s Office have been established.190 The Chambers and
Prosecutor have jurisdiction over crimes against humanity, war crimes, and a number of
other crimes under Kosovo law committed in Kosovo from 1 January 1998 to 31 December
2000, ie during the Kosovo war.191
All these tribunals receive substantial financial backing from the EU and its
Member States, either via contributions to the UN budget in the case of the ad hoc
tribunals, via assessed contributions to the ICC, or through voluntary contributions to
the hybrid tribunals.192 In spite of European generosity, the funding of international
tribunals remains a continuing challenge.

B. Jurisdiction

The statutes of the tribunals normally begin by delimiting the tribunals’ jurisdiction, which
is closely related to their mandate. For instance, the ICTY has ‘the power to prosecute
persons responsible for serious violations of international humanitarian law committed in
the territory of the former Yugoslavia since 1991’.193 The ICTR, in turn, has the power to
prosecute IHL violations committed in the territory of Rwanda and by Rwandan citizens
in the territory of neighbouring States between 1 January 1994 and 31 December 1994.194
The ICC’s jurisdiction has been defined somewhat more carefully. In principle, tempo-
rally, the ICC only has prospective jurisdiction, ie jurisdiction over crimes committed after
the entry into force of the Statute for the State Party in question;195 the earliest from 1 July
2002 onwards.196 As to the geographical and personal scope of its jurisdiction, it should be
recalled that the ICC was established by a treaty. Thus, it may only exercise jurisdiction
over crimes committed on the territory of a State Party and/or by a national of a State
Party, unless the UN Security Council has referred a situation to the Court. 197 States may
also accept the jurisdiction of the Court on an ad hoc basis for a period that they were not
yet a

188
See Questions relating to the Obligation to Prosecute or Extradite (n 83); see also Chapter 9, Section IV(B)
(v)(b), on the exercise of universal jurisdiction and Chapter 16, Section III(B), on the UN Convention against
Torture. 189 See Assembly of Republic of Kosovo, Law No 04/L-274 on Ratification of the International
Agreement between the Republic of Kosovo and the European Union on the European Union Rule of Law
Mission in Kosovo, 23 April 2014, kuvendikosoves.org/common/docs/ligjet/04-L-274%20a.pdf.
190
See Assembly of Republic of Kosovo, Law No 05/L-053 on Specialist Chambers and Specialist Prosecutor’s
Office, 3 August 2015, kuvendikosoves.org/common/docs/ligjet/05-L-053%20a.pdf.
191
ibid, Arts 6–8 and 13–15.
192
The EU Member States fund approximately 38% of the UN’s regular budget; Permanent Delegation of the
European Union to the UN Office and other International Organizations in Geneva, ‘The EU and the UN’,
eeas.europa.eu/delegations/un_geneva/eu_un_geneva/index_en.htm. The EU also provides for over 60% of the
ICC’s funding, see African Business Magazine, ‘Who Pays for the ICC?’, 1 October 2011, africanbusinessmaga-
zine.com/special-reports/who-pays-for-the-icc. By way of example, the EU has since 2007 contributed more than
US$15 million to the ECCC, complemented by bilateral contributions from EU Member States totalling more
than €36 million; Delegation of the European Union to Cambodia, ‘Cambodia and the EU’, 11 May 2016, eeas.
europa.eu/delegations/cambodia_en/1006/Cambodia%20and%20the%20EU.
193
Art 1 ICTY Statute.
194
Art 1 ICTR Statute.
195
Art 11(2) ICC Statute.
196
ie the date the ICC Statute (internationally) entered into force (see above (n 172)); ibid, Art 11(1).
197
ibid, Art 12(2).
764 INTERNATIONAL CRIMINAL LAW

party to the Statute, or without becoming a party to the Statute at all.198 In the case of an ad
hoc declaration, the State concerned may thus grant the ICC retroactive jurisdiction (ie
over crimes committed before it became a Party to the Statute),199 be it that it may not go
back further than 1 July 2002.200 The international crimes that fall within the material
jurisdic- tion of the ICC (and that of the ICTY and ICTR) have been discussed above
(Section III). There are three ways of bringing a ‘situation’ before the ICC: its jurisdiction
can be trig- gered through (i) a State Party referral, (ii) a proprio motu investigation by
the Prosecutor, or (iii) a referral by the UN Security Council.201 In October 2018, eleven
situations were officially under investigation by the Office of the Prosecutor (OTP),202 for
which purposes all three trigger mechanisms had been used.203 It concerns situations ‘in
which one or more crimes within the jurisdiction of the Court appear to have been
committed’.204 The notion ‘situation’ is not defined in the ICC Statute, but refers to ‘a
description of facts, defined by space and time, which circumscribe the prevailing
circumstances at the time’ (ie the conflict scenario), establishing the broader context in
which the crimes have been committed205 and from which one or more cases may
206
spring. Prosecutions thus proceed in stages that ‘begin with a “situation” and end with a
concrete “case”, where one or more suspects have been identified for the purpose of
prosecution’.207 In the framework of the situations currently
under investigation before the ICC, 26 cases have been brought before the Court.208

C. Bars to the Exercise of Jurisdiction

i. Admissibility
c (Brussels, Bruylant, 2007).