Hakan Friman

An Introduction to International Criminal Law and Procedure: The Objectives of International Criminal Law

Introduction The assertion of criminal jurisdiction over a person is amongst the most coercive activities any society can undertake. Punishing a person involves conduct towards them which requires a deprivation of some form of their liberty or a setting-back of their property interests. Such a deprivation of liberty or property requires justification. Furthermore, criminal law is not, in itself, a good or a bad thing. It is a tool, designed to achieve certain ends. Some of those ends may be better pursued by means other than prosecutions. It has been suggested by some that the justifications for punishment may differ, or at least be differently interpreted, between international criminal law and domestic criminal law. It is true that the general situations in which international criminal law is invoked are those of mass criminality, which are not the normal case in domestic criminal law enforcement. In addition, certain additional aims for international criminal law tend to be grafted onto those which are postulated for domestic systems of criminal law. These include the telling of the history of a conflict, distinguishing individual from group responsibility, reconciling societies and capacity building in domestic judicial systems. It is also true that international society is not the same as domestic society. Nonetheless, much of the implementation of international criminal law is intended to be at the domestic level, therefore it is questionable whether the objectives of punishment ought to differ that significantly between international and municipal criminal law.

THE INTERNATIONAL CRIMINAL COURT

The statute of the International Criminal Court is now in force and the court has begun its first investigations. Other conflicts and more investigations are being considered. The first investigations in the DRC and Uganda are based on these states referring crimes committed on their own territory to the court, an unexpected development. Such a move has been encouraged by the courts prosecutor, hoping that this will enhance the states crucially needed cooperation in the investigations. The prosecutor has announced some core policies: a positive approach to cooperation, a focused prosecutorial strategy aimed at the perpetrators who are most responsible, and a limited number of cases. Other preparations for the investigations have been made. This paper provides an update on recent developments regarding the court and points out some challenges, including the operations of the court vis-à-vis other peace efforts.

General Principles of Liability

Introduction The substantive definitions of crimes (on which, see Chapters 10–13) provide only a part of the picture of criminal liability. The general principles of liability apply across the various different offences and provide for the doctrines by which a person may commit, participate, or otherwise be found responsible for those crimes. They include forms of liability such as aiding and abetting, which are familiar to all domestic criminal lawyers, as well as principles like command responsibility, which are specific to international criminal law. It is important to note at the outset that the various forms of liability not only have different conduct elements, but also different mental elements, and the extent to which principles of accomplice liability have been used in some cases to avoid high mens rea requirements for primary commission of international crimes has been controversial. Unlike in domestic law, where the traditional image of a criminal is the primary perpetrator, such as the person who pulls the trigger, in international criminal law, the paradigmatic offender is the person who orders, masterminds, or takes part in a plan at a high level. As a result, principles of secondary liability play a comparatively large role in international criminal law. This chapter will discuss the principles of liability from two points of view, the ambit of liability recognized in customary and conventional international law, alongside the appropriateness of those principles from the point of view of foundational principles of criminal law, such as the requirements of personal responsibility and fair labelling.

Defences/Grounds for Excluding Criminal Responsibility

Introduction Defences (or in the terminology of the ICC Statute ‘grounds for excluding criminal responsibility’) are an oft-forgotten aspect of international criminal law. Jurisprudence from the international criminal Tribunals on the matter is sparse, and not always satisfactory. There are a number of reasons for this, one of which also at least partially explains the relative lack of scholarly attention given to most defences in international criminal law. This is the tendency towards a lack of sympathy for defendants in international criminal proceedings. As Albin Eser has said, there are ‘certain psychological reservations toward defences. By providing perpetrators of brutal crimes against humanity … with defences for their offences, we have effectively lent them a hand in finding grounds for excluding punishability.’ Other reasons include the fact that in international Tribunals, the Prosecutors choice of defendants rarely includes those who have plausible claims of defences recognized by the law. Defences are, however, a fundamental part of criminal law, and reflect important limitations on the proper scope of punishable conduct. It is the purpose of this chapter to set out and critique the law relating to defences, in both treaty-based and customary international law. This chapter is primarily concerned with substantive defences to international crimes, it does not deal with issues such as immunity, youth, ne bis in idem or limitation periods.

An Introduction to International Criminal Law and Procedure: The International Criminal Court

The statute of the International Criminal Court is now in force and the court has begun its first investigations. Other conflicts and more investigations are being considered. The first investigations in the DRC and Uganda are based on these states referring crimes committed on their own territory to the court, an unexpected development. Such a move has been encouraged by the courts prosecutor, hoping that this will enhance the states crucially needed cooperation in the investigations. The prosecutor has announced some core policies: a positive approach to cooperation, a focused prosecutorial strategy aimed at the perpetrators who are most responsible, and a limited number of cases. Other preparations for the investigations have been made. This paper provides an update on recent developments regarding the court and points out some challenges, including the operations of the court vis-a-vis other peace efforts.

An Introduction to International Criminal Law and Procedure: Other Courts with International Elements

Part I. Introduction: 1. Introduction: what is international criminal law? 2. The aims, objectives and justification of international criminal law Part II. Prosecutions in National Courts: 3. Jurisdiction 4. National prosecutions of international crimes 5. State cooperation with respect to national proceedings Part III. International Prosecutions: 6. The history of international criminal prosecutions: Nuremberg and Tokyo 7. The ad hoc international criminal tribunals 8. The International Criminal Court 9. Other courts with international elements Part IV. Substantive Law of International Crimes: 10. Genocide 11. Crimes against humanity 12. War crimes 13. Aggression 14. Transitional crimes, terrorism and torture 15. General principles of liability 16. Defences/grounds for excluding criminal responsibility Part V. Principles and Procedures of International Prosecutions: 17. Procedures of international criminal investigations and prosecutions 18. Victims in the international criminal process 19. Sentencing and penalties Part VI. Relationship between National and International Systems: 20. State cooperation with the International Courts and Tribunals 21. Immunities 22. Alternative and complements to criminal prosecution 23. The future of international criminal law.

An Introduction to International Criminal Law and Procedure: The History of International Criminal Prosecutions: Nuremberg and Tokyo

Introduction International criminal law, or something similar to it, has a very long history. Its closest European precursor before the modern era was the chivalric system that applied in the medieval era. The most notable of the trials that were related to this system was that of Peter von Hagenbach in Breisach in 1474. Although its status as a legal precedent is highly limited, the issues involved at that trial, superior orders, sexual offences, cooperation in evidence gathering, and pleas as to the jurisdiction of the court, have clear present-day relevance. The purpose of this chapter, however, is to introduce the modern history of international criminal prosecutions rather than provide a comprehensive overview of the entire history of the subject. Therefore we will start in the early part of the twentieth century, at the end of the First World War. The commission on the responsibility of the authors of the war After the First World War, the Allies set up a fifteen-member commission to investigate the responsibility for the start of the war, violations of the laws of war and what tribunal would be appropriate for trials. It reported in March 1919, determining that the central powers were responsible for starting the war and that there were violations of the laws of war and humanity. It recommended that high officials, including the Kaiser, be tried for ordering such crimes and on the basis of command responsibility.

An Introduction to International Criminal Law and Procedure: The Future of International Criminal Law

Introduction International criminal law has developed at an unprecedented rate since the early 1990s and is now an established part of the international scene and of the academic curriculum. It is too early to issue any final judgments, but it is the purpose of this chapter to evaluate recent developments as far as possible, and to look tentatively to the future of international criminal law. International courts and tribunals The catalyst for the revival of international criminal law was the creation of the ad hoc Tribunals by the Security Council in the early to mid 1990s. Although the project for an international criminal court had received some increased attention since its re-inclusion on the General Assembly’s agenda in 1989, this was not seen as likely to bear fruit. However, the creation of the ad hoc Tribunals showed that such tribunals could be established in a reasonably short time, and the focus of debate shifted from the question whether such tribunals were a realistic possibility to how they could be improved. The ad hoc Tribunals were criticized almost from the start as being expensive and bureaucratic, as well as producing what some consider to be show trials. Nonetheless, these experiments (as that is what they were at their beginnings) have to be credited not only with a reasonable level of success in their own proceedings, but also with providing the impetus for the creation of what many thought was a near impossibility in the international legal order, a permanent international criminal court.

An Introduction to International Criminal Law and Procedure: State Cooperation with Respect to National Proceedings

Introduction Criminal law and proceedings are at the heart of state sovereignty and cooperation in criminal matters is a voluntary undertaking; a State is not obliged to cooperate with others in criminal matters unless it has agreed to do so. But over time, the parochial view that criminal law, including its effects, is local in nature has given way to an ever-growing need for and actual regulation of international legal cooperation. Influential factors in this regard are increased cross-border activities, including the commission of crimes, international terrorism and the development of human rights. International crimes are of concern to all States and therefore lend themselves to efforts at cooperation. A commitment to cooperate, in the form of extradition, is the alternative to prosecution in accordance with the aut dedere, aut judicare principle, when applicable. Cooperation is particularly important when the State is exercising jurisdiction over crimes committed abroad, but may also be necessary when a State is investigating and prosecuting crimes committed on its own territory. Prosecution of genocide, crimes against humanity and war crimes is no exception. But international law, treaty and custom has not (yet) developed a special regime for State-to-State cooperation concerning these crimes. The Geneva Conventions and Additional Protocol I, for example, explicitly refer to cooperation in accordance with domestic legislation. One must therefore resort to general principles and provisions of international and domestic law on international cooperation in criminal matters.

An Introduction to International Criminal Law and Procedure: Defences/Grounds for Excluding Criminal Responsibility

This market-leading textbook gives an authoritative account of international criminal law, and focuses on what the student needs to know – the crimes that are dealt with by international courts and tribunals as well as the procedures that police the investigation and prosecution of those crimes. The reader is guided through controversies with an accessible, yet sophisticated, approach by the author team of four international lawyers with experience of teaching the subject, and as negotiators at the foundation of the International Criminal Court (ICC) and the Rome Conference. It is an invaluable introduction for all students of international criminal law and international relations, and now covers developments in the ICC and victims’ rights alternatives to international criminal justice. The book is supplemented by an extensive package of online resources (www.cambridge.org/law/cryer), which offers convenient access to primary sources, well-chosen excerpts for supplementary reading, problems and questions for reflection and discussion, and materials for exercises and simulations.