Cassese's international criminal law [Third edition] 9780199694921, 0199694923

Table of contents :
Title
Contents
Prefaces
Abbreviations
Cases
Treaties
National law
International instruments
Tribunals
Part I Intro
1 Fundamentals
2 Legality
3 Elements
Part II Substantive
I International crimes
4 War crimes
5 Crimes against humanity
6 Genocide
7 Torture and aggression
8 Terrorism
II Modes of liability
9 Perpetration
10 Omission and superior
11 Other modes
III Excluding liability
12 Justifications
13 Superior orders
Part III Prosecution and punishment
I Jurisdiction
14 International courts
15 Domestic
16 International vs domestic
17 Impediments
II International trials
18 Adversarial system
19 General principles
20 Investigation and trial
21 Appeals and enforcement
Index

Citation preview

CASSESE'S INTERNATIONAL CRIMINAL LAW Third Edition

REVISED BY

ANTONIO CASSESE PAOLA GAETA LAUREL BAIG MARY FAN CHRISTOPHER GOSNELL AND

ALEX WHITING

OXFORD UNIVERSITY PRESS

......

11

OXFORD UNIVERSITY PRESS

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship,

and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Estate of Antonio Cassese and Paola Gaeta 2013

The moral rights of the authors have been asserted First edition published in 2003 Second edition published in 2008 Impression: 3 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence vl.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm) Crown copyright material is reproduced with the permission of the Controller, HMSO (under the terms of the Click Use licence) British Library Cataloguing in Publication Data Data available ISBN 978-0-19-969492-l Printed in Great Britain by Ashford Color Press Ltd, Gosport, Hampshire Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

--CONTENTS Preface to the Third Edition Preface to the Second Edition Author Biographies Abbreviations Table of Cases Table of Treaties and Conventions Table of National Legislation Table of International Instruments Table of Statutes of International Tribunals

xi xiii xiv xv xix xxxix xliii xlvii xlviii

PART I INTRODUCTION 1 FUNDAMENTALS OF INTERNATIONAL CRIMINAL LAW

3

1.1 The Main Features ofICL

3

1.2 Sources ofICL

9

1.3 The Notion oflnternational Crimes 2 THE PRINCIPLE OF LEGALITY

18

22

2.1 The Principle of Legality in Civil Law and in Common Law Countries

23

2.2 The Principle ofLegality in ICL

24

2.3 Articulations of the Principle ofLegality

27

2 .4 TI1e Principle of Legality of Penalties

36

3 THE ELEMENTS OF INTERNATIONAL CRIMES, IN PARTICULAR THE MENTAL ELEMENT

37

3.1 The Objective Structure

38

3.2 The Mental Element

39

3.3 Intent

43

3.4 Special Intent (Dolus Specialis)

44

3.5 Recklessness or Indirect Intent

45

3.6 Knowledge

49

3.7 Culpable or Gross Negligence

52

3.8 TI1e Mental Element in the ICC Statute

56

3.9 Judicial Determination of the Mental Element

57

l Vi

CONTENTS

PART II

SUBSTANTIVE CRIMINAL LAW

SECTION I INTERNATIONAL CRIMES 4 WAR CRIMES

63

4.1 The Notion

65

4.2 The Criminalization of the Serious Violation of a Rule of IHL

67

4.3 The Objective Elements

70

4.4 The Subjective Elements

75

4.5 The Nexus with the Armed Conflict

77

4.6 War Crimes in the ICC Statute

79

5 CRIMES AGAINST HUMANITY

84

5.1 The Nuremberg Charter and Judgment

86

5.2 Subsequent Developments

89

5.3 The Notion Today

90

5.4 The Objective Elements

92

5.5 The Subjective Elements

98

5.6 The Authors

100

5.7 The Victims

101

5.8 Article 7 of the ICC Statute and Customary International Law

105

6 GENOCIDE (REVISED BY PAOLA GAETA)

109

6.1 The Genocide Convention

llO

6.2 Developments in the Case Law on Genocide

114

6.3 The Objective Elements

115

6.4 The Subjective Elements

118

6.5 The Protected Groups

119

6.6 Two Problematical Aspects of Genocide

123

6.7 Genocide and Crimes against Humanity

127

6.8 Article 6 of the ICC Statute and Customary International Law

129

7 TORTURE AND AGGRESSION (REVISED BY MARY FAN)

131

7.1 Torture

132

7.2 The Crime of Aggression

136

8 TERRORISM

146

8.1 The Freedom Fighters' Problem

146

8.2 Elements Pointing to the Existence of a Generally Agreed Definition of Terrorism in Time of Peace

148

CONTENTS

vii

8.3 The Ingredients of Terrorism as an International Crime in Time of Peace

149

8.4 Specific Sub-categories of Terrorism as an International Crime

152

8.5 Terrorism in Armed Conflict: A Sub-category of War Crimes

153

8.6 Terrorism as a Crime against Humanity

157

SECTION II MODES OF CRIMINAL LIABILITY 9 PERPETRATION: IN PARTICULAR JOINT AND INDIRECT

PERPETRATION (REVISED BY LAUREL BAIG)

161

9.1 Joint Criminal Enterprise

163

9.2 Co-perpetration Based on Joint Control

176

9.3 Indirect Perpetration

178

10 OMISSION LIABILITY AND SUPERIOR RESPONSIBILITY (REVISED BY LAUREL BAIG)

180

10.1 Culpable Omission

181

10.2 Superior Responsibility

182

10.3 Is Superior Responsibility a Mode of Liability or a Crime per se?

191

11 OTHER MODES OF CRIMINAL LIABILITY AND INCHOATE CRIMES (REVISED BY LAUREL BAIG)

193

11.1 Aiding and Abetting

193

11.2 Ordering

196

11.3 Instigating

197

11.4 Planning

197

11.5 Residual Accessory Liability in the ICC Statute

198

11.6 Inchoate Crimes

199

SECTION III CIRCUMSTANCES EXCLUDING CRIMINAL LIABILITY 12 JUSTIFICATIONS AND EXCUSES (REVISED BY CHRISTOPHER GOSNELL)

209

12.1 Justifications

210

12.2 Excuses

215

13 OBEDIENCE TO SUPERIOR ORDERS AND OFFICIAL CAPACITY (REVISED BY CHRISTOPHER GOSNELL AND PAOLA GAETA)

228

13.1 Superior Orders

228

13.2 The Irrelevance of Official Capacity

240

l viii

CONTENTS

PART III PROSECUTION AND PUNISHMENT SECTION I INTERNATIONAL AND NATIONAL CRIMINAL JURISDICTION 14 INTERNATIONAL CRIMINAL COURTS

253

14.1 Abortive Early Attempts (1919-1945)

253

14.2 The Nuremberg and Tokyo Tribunals (1945-1947)

255

14.3 The Establishment of the ICTY and ICTR (1993-1994)

258

14.4 The Drafting and Adoption of the Statute of the ICC (1994-1998)

261

14.5 The Establishment of Internationalized or Mixed Courts

263

14.6 Merits and Flaws of International Criminal Justice

267

15 THE REPRESSION OF INTERNATIONAL CRIMES IN DOMESTIC JURISDICTIONS (REVISED BY PAOLA GAETA)

271

15.1 International Law and the Ambit of States' Criminal Jurisdiction

272

15.2 Principles of Criminal Jurisdiction

274

15.3 International Rules on States' Criminal Jurisdiction over International Crimes

281

15.4 An Unsatisfactory Regulation

289

16 INTERNATIONAL VERSUS NATIONAL JURISDICTION (REVISED BY ALEX WHITING)

291

16.1 The Nuremberg Scheme Versus the ICC Scheme

291

16.2 The Primacy of International Criminal Courts with Respect to National Jurisdictions

293

16.3 The Complementarity of the ICC

296

16.4 Judicial Cooperation of States with International Criminal Courts

298

17 LEGAL IMPEDIMENTS TO THE EXERCISE OF CRIMINAL JURISDICTION

309

17.1 Amnesty

309

17.2 Statute of Limitations

313

17.3 The Prohibition of Double Jeopardy

315

17.4 International Rules on Immunities

318

,.......--CONTENTS

ix

SECTION II INTERNATIONAL CRIMINAL TRIALS 18 THE ADOPTION OF THE ESSENTIAL FEATURES OF THE ADVERSARIAL SYSTEM (REVISED BY CHRISTOPHER GOSNELL)

329

18.l A Comparison of the Two Models in Operation

331

18.2 Trial Proceedings

334

18.3 Appellate Proceedings

338

18.4 A Summary of the Main Distinguishing Features

339

18.5 The Adoption of the Adversarial Model at the International Legal Level

340

18.6 Towards a Felicitous Amalgamation of Procedural Elements

346

19 GENERAL PRINCIPLES GOVERNING INTERNATIONAL CRIMINAL TRIALS (REVISED BY CHRISTOPHER GOSNELL)

347

19.1 The Protection from Self-incrimination

348

19.2 The Principle that Judges must be Independent and Impartial

349

19.3 The Presumption of Innocence

350

19.4 Communication of the Charges and Opportunity to Challenge Them

352

19.5 Trial without Undue Delay

354

19.6 A Public Hearing

356

19.7 Fairness

356

19.8 The Principle that the Accused Should Be Present at his Trial

357

20 INVESTIGATION AND TRIAL BEFORE INTERNATIONAL CRIMINAL COURTS (REVISED BY CHRISTOPHER GOSNELL)

363

20.1 International Criminal Investigation

363

20.2 The Initiation of Proceedings and Preparation for Trial

368

20.3 Trial Proceedings

373

20.4 The Role of Victims and Reparations

386

21 APPEALS AND ENFORCEMENT (REVISED BY LAUREL BAIG)

389

21.1 Appeals

390

21.2 Revision and Review

394

21.3 Enforcement of Sentences

396

Index

401

PREFACE TO THE THIRD EDITION Antonio Cassese passed away on 22 October 2011, while the third edition of International Criminal Law was in the final stages of preparation. In order to assist him with the new edition, he had approached several friends and colleagues, including myself, to revise and update specific chapters. I agreed to help coordinate the respective submissions, to revise and update some existing chapters myself, and to write a new chapter on the repression of international crimes in national jurisdictions. More generally, I also agreed to assist with the final revision of the entire book. Such was Antonio Cassese's generosity that he insisted that our names appear on the cover. When he passed away, he had completed the updating and revision of his own chapters and revised those of the other contributors. Toe book had now to be edited and revised as whole. It took some time before I felt ready to carry out this task alone. I wish therefore to thank all at OUP, and in particular Helen Davis, for their understanding. I also wish to express my gratitude to Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting for being so patient with me and for conducting a further update to their chapters at a time when I felt ready to work on the book and when the book was ready to go to press. Above all, I am indebted to Sylvia Cassese, who allowed me to accomplish this task and to honour my promise to Antonio Cassese. This new edition largely maintains the structure of the previous one, although a few changes have been inserted: former Chapter 21 on 'The Specificity ofinternational Trials' has been removed, and some of its content integrated into other chapters of the book (see, in particular, current Chapter 14); former Chapter 2 on 'The General Principles of International Criminal Law' has been replaced by a chapter entirely devoted to 'The Principle of Legality'; the pleas of having acted in obedience with superior orders and in an official capacity now form a separate chapter in the section devoted to excuses and defences (Chapter 13); two new chapters have been included, one on the domestic prosecution of international crimes (Chapter 15) and the other (which had already appeared in the first edition) on legal impediments to the exercise of criminal jurisdiction over international crimes (Chapter 17). The content of all chapters has been entirely revised, in light of both recent practice and case law, in particular that of the ICC, and the doctrinal debate on some of the more controversial issues. Some chapters have also been shortened to ensure a more concise and accessible presentation of the various topics and relevant institutions. The book continues to be characterized by its reference to the facts and the law concerning an impressive number and variety of cases on which Antonio Cassese had already reported in previous editions, keen as he was to illustrate not only the legal issues involved, but also their historical and human dimension. As he explained in the preface to both the first and second edition: 'Law, it is well known, filters and rarefies the halo of horror and suffering surrounding crimes. As a consequence, when one reads a law book or a judgment, one is led almost to forget the violent and cruel origin of criminal law prescriptions. One ought not to become oblivious to it. To recall it may serve as a reminder of the true historical source of criminal law. This branch oflaw, more than any other, is about human folly, human wickedness, and human aggressiveness. It deals with the darkest side of our nature. It also deals with how society confronts violence and viciousness and seeks to stem them as far as possible so as "to make gentle the life on this world".'

l Xll

PREFACE TO THE THIRD EDITION

The contribution Antonio Cassese gave both as a judge and as an academic to the development and clarification of international criminal law is immense. He was, however, fully aware that international criminal law was still in its adolescence, still in need of refinement and adjustment. This book is essential to our understanding of just how much has been achieved since the first attempts to establish a system of international criminal justice. It is also an indispensable reference for those who do not content themselves with the existing law, but aim for changes and improvement. This edition of the book is dedicated to all those who share the simple secret that the fennec fox revealed to the Little Prince while saying goodbye: 'It is only with the heart that one can see rightly. What is essential is invisible to the eye.' (Adieu, dit le renard. Voici mon secret. Il est tres simple: on ne voit bien qu'avec le c