Introduction to international criminal law. 2nd, rev. ed. 9789004264977, 9004264973

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Introduction to international criminal law. 2nd, rev. ed.
 9789004264977, 9004264973

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Introduction to International Criminal Law Second Revised Edition

International Criminal Law Series Editorial Board Series Editor

M. Cherif Bassiouni (USA/EGYPT)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal; Chicago, USA Kai Ambos (Germany) Judge, District Court, Göttingen; Professor of Law and Head, Department for Foreign and International Criminal Law, Georg August Universität Mahnoush Arsanjani (Iran) Member, Institut de Droit International; former Director, Codification Division, United Nations Office of Legal Affairs Mohamed Chande Othman (Tanzania) Chief Justice, Court of Appeal of Tanzania Eric David (Belgium) Professor of Law, Faculty of Law, Free University of Brussels Mireille Delmas-Marty (France) Professor of Comparative Legal Studies and Internationalisation of Law, Collège de France Adama Dieng (Senegal) UN Secretary-General’s Special Adviser on the Prevention of Genocide; former Registrar, International Criminal Tribunal for Rwanda; former Secretary General, International Commission of Jurists Mark Drumbl (Canada/USA) Class of 1975 Alumni Professor of Law, Director, Transnational Law Institute, Washington and Lee University School of Law Chile Eboe-Osuji (Nigeria) Judge, Trial Division, International Criminal Court; former Legal Adviser to the High Commissioner for Human Rights, Office of the High Commissioner for Human Rights Geoff Gilbert (UK) Professor of Law and Head, School of Law, University of Essex

Philippe Kirsch (Belgium/Canada) Ad hoc Judge, International Court of Justice; former President, International Criminal Court; Ambassador (Ret.) and former Legal Advisor, Ministry of Foreign Affairs of Canada André Klip (The Netherlands) Professor of Law, Department of Criminal Law and Criminology, Faculty of Law, Maastricht University Erkki Kourula (Finland) Judge and President of the Appeals Division, International Criminal Court Motoo Noguchi ( Japan) Legal Adviser, Ministry of Justice of Japan; Visiting Professor of Law, University of Tokyo; former International Judge, Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia Diane Orentlicher (USA) Professor of International Law, Co-Director, Center for Human Rights and Humanitarian Law, Washington College of Law, American University Fausto Pocar (Italy) Judge and former President, International Criminal Tribunal for the Former Yugoslavia; President, International Institute of Humanitarian Law; Professor of International Law Emeritus, University of Milan Leila Nadya Sadat (France/USA) Henry H. Oberschelp Professor of Law, Director, Whitney R. Harris World Law Institute, Washington University School of Law William Schabas (Canada/Ireland) Professor of International Law, Department of Law, Middlesex University; Chairman, Irish Centre for Human Rights, National University of Ireland

Michael Scharf (USA) John Deaver Drinko-Baker & Hostetlier Professor of Law, Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law Ulrich Sieber (Germany) Professor of Criminal Law, Director, Max Plank Institute for Foreign and International Criminal Law, University of Freiburg Göran Sluiter (The Netherlands) Professor of Law, Department of Criminal Law and Criminal Procedure, Faculty of Law, University of Amsterdam Otto Triffterer (Austria) Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Françoise Tulkens (Belgium) Vice-President, European Court of Human Rights Xuimei Wang (China) Professor of International Criminal Law, College for Criminal Law Science, Beijing Normal University; Executive Director, ICC Project Office Christine van den Wyngaert (Belgium) Judge, Trial Division, International Criminal Court; former Judge, International Criminal Tribunal for the Former Yugoslavia; former Ad hoc Judge, International Court of Justice Gert Vermeulen (Belgium) Professor of Criminal Law, Director, Institute for International Research on Criminal Policy, Ghent University; Extraordinary Professor of Evidence Law, Maastricht University Giuliana Ziccardi Capaldo (Italy) Professor of International Law, Faculty of Law, University of Salerno

VOLUME 1 The titles published in this series are listed at brill.com/icls

Introduction to International Criminal Law: Second Revised Edition By

M. Cherif Bassiouni

Leiden • boston 2014

This hardback was originally published in paperback under ISBN 978‐90‐04‐18644‐6. Library of Congress Cataloging-in-Publication Data Introduction to international criminal law / edited by M. Cherif Bassiouni . . . [et al.]. — [2nd rev. ed.].   p. cm. — (International criminal law series ; v. 1)  Rev. ed. of: Introduction to international criminal law / M. Cherif Bassiouni. c2003.  ISBN 978-90-04-18644-6 (pbk. : alk. paper) — ISBN 978-90-04-23169-6 (e-book) 1. International criminal law. 2. Criminal jurisdiction. 3. International crimes. I. Bassiouni, M. Cherif, 1937– II. Bassiouni, M. Cherif, 1937– Introduction to international criminal law.  KZ7000.B37 2012  345—dc23 2012010825

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 2213-2724 ISBN 978-90-04-26497-7 (hardback) ISBN 978-90-04-23169-6 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Table of Authorities ..................................................................................................... xvii Table of Abbreviations ................................................................................................ cxi Introduction to the Second Edition ........................................................................ cxxi M. Cherif Bassiouni .................................................................................................. cxxxv I. The Discipline of ICL ............................................................................................ 1. The Sources of ICL ............................................................................................ 1.1. The Components of ICL ......................................................................... 1.2. The Different Sources of Law and Their Application to ICL’s Components ............................................................................................... 1.3. Assessing the Sources of Law Applicable to ICL and the Doctrinal Framework of ICL ................................................................. 1.4. Complementarity ...................................................................................... 2. The Peculiarities of ICL Enforcement Regimes ....................................... 3. The Policies and Values of ICL and Their Systemic   Development ...................................................................................................... 3.1. The Historical Evolution of the “Direct Enforcement System” ..... 3.2. The Evolution of ICL Norm-Development ....................................... 3.3. The Historic Evolution of ICL Enforcement through the “Indirect Enforcement System” ............................................................ 3.4. The Underlying Concept of ICL Enforcement: A Civitas Maxima ........................................................................................................ 4. The Changing Nature of International Law and Relations and Their Impact on ICL ................................................................................ 5. Conclusion .......................................................................................................... II. The Subjects of International Criminal Law: Ratione Personae ............... 1. Introduction ........................................................................................................ 2. Doctrinal Considerations ................................................................................ 3. International Criminal Responsibility of Individuals ............................ 3.1. Basis of Responsibility ............................................................................ 3.2. International Criminal Responsibility of Non-State Actors ........ 4. Criminal Responsibility of Heads of State and Other Persons   Benefiting from International Immunities ................................................ 4.1. Introduction ............................................................................................... 4.2. Historical Evolution before International Judicial Organs and under Conventional ICL ......................................................................... 4.3. Customary Practice of States ................................................................

1 1 1 13 15 19 22 27 28 30 34 35 44 52 59 59 61 66 66 70 73 73 75 78

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4.4. The ICJ’s 2002 Ruling on International Immunities of Certain Persons ...................................................................................................... 4.5. Head of State Immunity under the ICTY/ICTR and ICC ........... 4.6. Conclusion ............................................................................................... 5. International Criminal Responsibility of Groups and   Organizations ................................................................................................... 5.1. International Responsibility of Individual Group Members .... 5.2. International Criminal Responsibility of Corporations As Legal Persons .......................................................................................... 5.3. Corporate Liability for Harm to the Environment ...................... 5.4. Liability of TNCs for Their Conduct Abroad: “Aiding and Abetting” As Applied to TNCs ........................................................... 6. International Criminal Responsibility of States .................................... 7. State Immunity: A Bar to Civil Remedies for Jus Cogens International Crime ....................................................................................... 8. The Victim As a Subject of ICL .................................................................. 8.1. The Evolution of the Individual Victim’s Rights in International Law .................................................................................. 8.2. The Normative Framework of a Victim’s Right to Reparation ................................................................................................ 8.2.1. The Evolution and Foundation of the Normative Framework for a Victim’s Right of Reparation ................. 8.2.2. Defining the Term “Victim” ..................................................... 8.2.3. A State’s Obligation to Respect, Ensure Respect for, and Enforce International Human Rights and Humanitarian Law ................................................................................................. 8.2.4. The Rights of Victims ................................................................ 8.3. Mechanisms for Obtaining Reparation for Victims .................... 8.4. Economic and Political Considerations .......................................... 9. Conclusion ........................................................................................................ III. International Crimes: Ratione Materiae ......................................................... 1. Introduction ..................................................................................................... 2. Codification of ICL ......................................................................................... 3. Criteria for International Criminalization .............................................. 4. The Penal Characteristics of ICL Conventions ...................................... 5. The Hierarchy of International Crimes .................................................... 6. The General Categories of International Crimes .................................. 6.1.  Protection of International Peace and Security ........................... 6.1.1. Aggression ...................................................................................... 6.2. Protection of Human Interests Not Associated with Other Internationally Protected Interests ...................................................

89 91 95 96 96 98 99 101 104 109 111 111 113 114 122 124 124 126 130 133 137 137 139 142 143 146 149 150 150 153



contents 6.2.1. Genocide .................................................................................. 6.2.2. Crimes against Humanity ................................................... 6.2.3. War Crimes ............................................................................. 6.2.4. Unlawful Possession, Use, Emplacement Stockpiling, and Trade of Weapons, including Nuclear Weapons .................................................................. 6.2.5. Nuclear Terrorism ................................................................. 6.2.6. Apartheid ................................................................................. 6.2.7. Slavery, Slave-Related Practices, and Trafficking in Human Beings ................................................................... 6.2.8. Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment ........................ 6.2.9. Unlawful Human Experimentation ................................. 6.2.10. Enforced Disappearance and Extrajudicial Execution ................................................................................. 6.2.11. Mercenarism ........................................................................... 6.3. Protection of Human Interests Associated with Other Internationally Protected Interests .................................................. 6.3.1. Piracy and Unlawful Acts against the Safety of Maritime Navigation and the Safety of Platforms on the High Seas .................................................................... 6.3.2. Aircraft Hijacking and Unlawful Acts of International Air Safety ....................................................... 6.3.3. Threat and Use of Force against Internationally Protected Persons and United Nations Personal ......... 6.3.4. Taking of Civilian Hostages ................................................ 6.3.5. Use of Explosives ................................................................... 6.3.6. Financing of Terrorism ........................................................ 6.3.7. Unlawful Use of the Mail .................................................... 6.4. Protection of Social and Cultural Interests ................................... 6.4.1. Unlawful Traffic in Drugs and Related Drug Offenses  . ................................................................................. 6.4.2. Organized Crime and Related Specific Crimes ............ 6.4.3. Destruction and/or Theft of National Treasures ......... 6.4.4. Unlawful Acts against Certain Internationally Protected Elements of the Environment ....................... 6.4.5. International Traffic in Obscene Materials ................... 6.4.6. Falsification and Counterfeiting ....................................... 6.4.7. Unlawful Interference with International Submarine Cables ................................................................. 6.4.8. Corruption and Bribery Bribery of Foreign Public Officials .......................................................................

vii 153 157 167 199 201 201 202 203 204 205 207 208 208 208 209 210 210 210 210 212 212 213 213 214 214 215 215 216

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7. Evolution of the Process of International Criminalization .............. 7.1. Introduction .......................................................................................... 7.2. Assessing the Characteristics of ICL Conventions and Related Instruments ............................................................................ 7.3. Observations on the Ranking and Classification of International Crimes ........................................................................... 8. Jus Cogens International Crimes ............................................................... 8.1. The Meaning of Jus Cogens ............................................................... 8.2. The Scope of Obligatio Erga Omnes ............................................... 9. The Principles of Legality and the Ratione Materiae of ICL ............ 10. Conclusion ....................................................................................................... Appendix: ICL Conventions and Related Materials .........................................

216 216

IV. Principles of Criminal Responsibility: The General Part .......................... 1. Introduction .................................................................................................... 2. General Considerations ................................................................................ 3. National Legal Standards and Their Relevance to ICL ...................... 4. Some Problems in Identifying the General Part from the   Charter to the Rome Statute ...................................................................... 5. Some Specific Problems ............................................................................... 5.1. The Mental Element ............................................................................ 5.2. Theories of Criminal Responsibility ............................................... 6. The Application of the General Part by the IMT, IMTFE, and   in Other Proceedings: A Historical Analysis .......................................... 7. The Jurisprudence of the ICTY, the ICTR, and the ICC ..................... 7.1. Participation .......................................................................................... 7.1.1. Planning ..................................................................................... 7.1.2. Instigating ................................................................................. 7.1.3. Ordering ..................................................................................... 7.1.4. Committing .............................................................................. 7.2. Aiding and Abetting ............................................................................ 7.3. Omission ................................................................................................. 8. Command Responsibility: Policy Considerations ................................ 8.1. The Evolution of Command Responsibility in the Regulation of Armed Conflicts ............................................................................... 8.2. Civilian Command Responsibility ................................................... 9. Joint Criminal Enterprise ............................................................................ 10. Defenses and Exoneration .......................................................................... 10.1. Obedience to Superior Orders ......................................................... 10.1.1. Rationale ................................................................................... 10.1.2. Policy Considerations ........................................................... 10.1.3. Scholarly Views .......................................................................

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219 227 236 239 244 246 253 255

301 304 304 313 318 320 325 325 326 327 328 329 331 332 336 370 373 401 403 403 406 410



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10.1.4. The Judgments of Tribunals ............................................... 10.1.5. Post-Charter Developments ............................................... 10.1.6. Conclusion ............................................................................... 10.2. Duress ..................................................................................................... 10.3. Reprisals ................................................................................................. 10.3.1. Introduction ............................................................................ 10.3.2. Historical Evolution .............................................................. 10.4. Tu Quoque ............................................................................................. 10.5. Self-Defense .......................................................................................... 10.6. Insanity (Mental Incapacity) ........................................................... 10.7. Intoxication ........................................................................................... 10.8. Mistake of Fact and Mistake of Law ............................................. 10.9. Conclusion ............................................................................................  11. ICL Penalties and Sentencing .................................................................... 11.1. Introduction .......................................................................................... 11.2. IMT, IMTFE, and Subsequent Proceedings ................................. 11.3. ICTY and ICTR ..................................................................................... 11.4. International Criminal Court ........................................................... 12. Conclusion ....................................................................................................... V. The “Indirect Enforcement System:” Modalities of International   Cooperation in Penal Matters ...........................................................................   1. Introduction ....................................................................................................  2. The Maxim Aut Dedere Aut Judicare ....................................................... 2.1. Origin and Rationale .......................................................................... 2.2. Nature and Content of the Obligation ..........................................  3. The Modalities of “International Cooperation in Penal   Matters” ............................................................................................................ 3.1. Introduction .......................................................................................... 3.2. Extradition ............................................................................................. 3.3. Legal Assistance (Also Referred to As Mutual Legal Assistance) ............................................................................................. 3.4. Execution of Foreign Sentences ...................................................... 3.5. Recognition of Foreign Penal Judgments .................................... 3.6. Transfer of Criminal Proceedings ................................................... 3.7. Freezing and Seizing of Assets (Deriving from Criminal Activities) ............................................................................................... 3.8. Intelligence and Law Enforcement Information-Sharing ....... 3.9. Regional and Sub-Regional “Judicial Spaces” ..............................  4. Assessing the “Indirect Enforcement System” ......................................  5. Conclusion .......................................................................................................

ix 416 429 437 438 452 452 454 465 470 470 472 473 474 474 474 476 478 481 484 487 487 487 487 496 499 499 500 504 506 509 510 511 519 526 528 533

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VI. The “Direct Enforcement System:” History of International   Criminal Investigations and Prosecutions ..................................................... 1. Introduction ...................................................................................................... 2. History of International Criminal Investigations and Prosecutions: From Versailles to Rome, 1919–1998 ............................... 2.1. Ad Hoc International Investigative Commissions and International Criminal Tribunals since 1919 ................................. 2.2. The 1919 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties ...................................... 2.3. The Allies’ Failure to Establish Prosecutions Pursuant to the Treaty of Versailles ............................................................................... 2.4. The Leipzig Trials .................................................................................. 2.5. The 1943 United Nations War Crimes Commission ................... 2.6. The International Military Tribunal at Nuremberg .................... 2.7. Control Council Law No. 10 ............................................................... 2.8. The Instrument of Surrender of Italy .............................................. 2.9. The Far East Commission and the International Military Tribunal for the Far East at Tokyo .................................................. 2.10. Politics of Defendant Selection in the Far East ........................... 2.11. Comparison of the Legal Bases for Setting up the IMT, IMTFE, and CCL 10 and Far East Allied Military Prosecutions ............................................................................................ 2.12. The Years of Silence: 1955–1992 ........................................................ 2.13. The Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) ........................................................... 2.14. The International Criminal Tribunal for the Former Yugoslavia ................................................................................................ 2.15. The Rwanda Commission of Experts .............................................. 2.16. The International Criminal Tribunal for Rwanda (ICTR) ........ 3. Establishing an International Criminal Court 1937–1994 .................... 4. Changing Times: 1989 to 1998 ...................................................................... 4.1. Assessing the Progress from 1989 to 1998 ...................................... 4.2. Informal Inter-Sessional Meetings ................................................... 4.3. The “Like-Minded” States .................................................................... 4.4. The NGO Community .......................................................................... 4.5. The Draft Statute of the International Criminal Court ............. 4.6. The Rome Diplomatic Conference June 15–July 17, 1998 .......... 4.6.1. The Flow of Texts to the Drafting Committee ................. 4.6.2. The Negotiating Process .......................................................... 4.6.3. The Final Stage ........................................................................... 4.6.4. Legal Methods and Techniques ............................................ 4.6.5. The Signing of the Convention .............................................

535 535 540 541 542 545 547 549 551 557 557 558 562 564 565 566 569 572 573 575 584 589 594 595 595 596 599 605 609 613 616 624



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5. Recent Developments 1998–2011 ............................................................... 5.1. ICC Review Conference, Kampala, Uganda (May 31–June 11, 2010) ......................................................................... 5.1.1. Evolution of the Definition of the Crime of Aggression ................................................................................... 5.1.2. Defining Aggression and Its Triggering Mechanism ..... 5.2. Looking Forward .................................................................................. 6. Conclusion ....................................................................................................... VII. The International Criminal Court: A Hybrid “Direct Enforcement   System”  ................................................................................................................... 1. The Need for an ICC ..................................................................................... 2. The Characteristics of the ICC .................................................................. 2.1. The Nature of the ICC ........................................................................ 2.2. Complementarity of the ICC and National Legal Systems ..... 3. Applicable Law ............................................................................................... 4. The Jurisdiction of the ICC ........................................................................ 4.1. Preconditions to the Exercise of Jurisdiction .............................. 4.2. Ratione Temporis: When the ICC May Extend Its Jurisdiction ............................................................................................. 4.3. Ratione Personae: The Subjects of Criminal Responsibility ..... 4.4. Ratione Materiae: The Crimes within the Jurisdiction of the ICC .................................................................................................... 4.5. The Definition and Elements of the Crime of Aggression ...... 4.5.1. The Triggering Mechanisms of the Crime of Aggression .................................................................................. 5. Elements of Criminal Responsibility: The General Part .................... 6. Invoking the Jurisdiction of the Court .................................................... 6.1. Referring a “Situation” to the Court: Initiation of the Investigation and Prosecution .......................................................... 6.2. The Prosecutor’s Proprio Motu Initiation of an Investigation .......................................................................................... 6.3. Admissibility and Inadmissibility .................................................... 6.4. Ne Bis In Idem ........................................................................................ 7. The Court’s Exercise of Jurisdiction ........................................................ 7.1. Procedural Due Process ...................................................................... 7.2. The Investigation Process .................................................................. 7.3. The Trial .................................................................................................. 7.3.1. The Rights of the Accused at Trial ..................................... 7.3.2. Protection of Victims and Witnesses at Trial .................. 7.3.3. Relevant Evidence and the Protection of National Security ........................................................................................

xi 625 630 632 635 642 648 651 651 654 654 655 656 658 658 660 660 661 666 674 678 680 680 682 682 684 685 685 686 688 688 688 688

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7.3.4. Offenses against the Administration of Justice ........... 7.3.5. Decisions and Orders .......................................................... 7.4. The Appeal ......................................................................................... 8. Penalties and Sentencing ......................................................................... 9. Victim Reparation ...................................................................................... 10. Enforcement Modalities, Surrender, and Judicial Assistance ....... 10.1. Enforcement Modalities ................................................................ 10.2. Surrender of Individuals and Judicial Assistance .................. 11. Exceptions to the Obligation to Cooperate ....................................... 12. The Organization and Operation of the Court .................................. 12.1. The Presidency ................................................................................. 12.2. The Appeals, Trial, and Pre-Trial Division ............................... 12.3. The Prosecutor and the Office of the Prosecutor .................. 12.4. The Registry ....................................................................................... 12.5. The Assembly of States Parties .................................................... 13. Relationship of the ICC with the United Nations ............................ 13.1. Relationship to the Security Council ......................................... 14. Amending the Statute ............................................................................... 15. The Operation of The Court ................................................................... 16. Assembly of State Parties ......................................................................... 17. National Implementing Legislation ...................................................... 18. Summary of the ICC’s Work ................................................................... 19. Conclusion ....................................................................................................

689 689 690 690 692 698 698 699 702 705 705 705 706 707 707 708 708 709 710 710 714 715 719

VIII. Mixed Models of International Criminal Justice ...................................... 1. Introduction ................................................................................................. 2. Kosovo ............................................................................................................ 3. Bosnia and Herzegovina ........................................................................... 4. Sierra Leone .................................................................................................. 5. Timor-Leste ................................................................................................... 6. Cambodia ...................................................................................................... 7. Lebanon ......................................................................................................... 8. Conclusion ....................................................................................................

721 721 726 733 739 753 760 769 778







IX. The “Procedural Part” of ICL: Procedural and Evidentiary Norms Applicable to International Criminal Proceedings .................................. 1. Introduction ................................................................................................. 2. International Criminal Procedure ......................................................... 2.1. Introduction ...................................................................................... 2.2. Rights and Clusters of Rights ....................................................... 2.2.1. The Right to Life, Liberty, and Security of the Person ......................................................................................

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2.2.2. The Right to Recognition before the Law and Equal Protection of the Law ............................................................. 2.2.3. The Right to Be Free from Arbitrary Arrest and Detention .................................................................................... 2.2.4. The Right to Freedom from Torture and Cruel, Inhuman, and Degrading Treatment or Punishment .... 2.2.5. The Right to Be Presumed Innocent .................................. 2.2.6. The Right to a Fair Trial ......................................................... 2.2.7. The Right to Assistance of Counsel .................................... 2.2.8. The Right to a Speedy Trial .................................................. 2.2.9. The Right to Appeal ................................................................ 2.2.10. The Right to Be Protected from Double Jeopardy ......... 2.2.11. The Right to Be Protected from Ex Post Facto Law ....... 2.3. A Summary of Protected Procedural Rights .................................. 2.4. Conclusion ................................................................................................ 3. Rules of Evidence ............................................................................................ 3.1. Introduction ............................................................................................. 3.2. Historical Evolution of the Rules Governing Evidence .............. 3.3. The Collection and General Approach to Evidence ................... 3.4. Fair Trial Rights and Evidence ........................................................... 3.4.1. Equality of Arms ....................................................................... 3.4.2. The Right to Be Informed Promptly of the Charges and Disclosure of Evidence ................................................... 3.4.3. The Right to Translated Documents .................................. 3.4.4. The Rights of the Suspects ..................................................... 3.4.5. The Right to an Expeditious Trial and to Be Tried without Undue Delay .............................................................. 3.4.6. The Right to Be Present at Trial .......................................... 3.4.7. Witnesses, the Right to a Public Trial, and Protective Measures ..................................................................................... 3.4.8. The Privilege against Self-Incrimination and the Right to Remain Silent ....................................................................... 3.4.9. Remedies for the Infringement of Rights .......................... 3.5. Other Issues Related to Evidence ..................................................... 3.5.1. Expert Evidence ........................................................................ 3.5.2. Documentary and Forensic Evidence ................................ 3.5.3. Interpretation of the Rules of Evidence and Procedure at the ICTY/ICTR ...................................................................... 3.6. Evidence in Appellate Proceedings .................................................. 4. Conclusion ......................................................................................................... Appendix I: International Instruments Surveyed .............................................. Appendix II: Rights Surveyed ...................................................................................

xiii 799 800 802 805 807 818 825 827 829 830 832 832 833 833 835 836 838 839 841 846 848 848 850 854 858 861 861 861 863 863 867 867 869 870

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Appendix III: Constitutions Surveyed ................................................................... 898 Appendix IV: ICC Comparison Chart .................................................................... 900 X. International Criminal Justice in the Age of Globalization ..................... 1. Introduction ...................................................................................................... 1.1. National Criminal Justice Systems Enforcing ICL Norms ......... 1.2. The Distinction between the Policies and Goals of Punishment in National Criminal Justice Systems and Those in the ICJ System ................................................................................... 1.3. The Need to Harmonize the International Criminal Justice System and National Criminal Justice Systems ........................... 1.4. The Philosophy and Policy of Punishments for Jus Cogens International Crimes ............................................................................ 1.4.1. Philosophical Considerations ................................................. 1.4.2. The Historical Premise of Punishment ............................... 1.4.3. Universal Justice for Jus Cogens International Crimes .... 2. Accountability Mechanisms ........................................................................ 2.1. International Prosecutions ................................................................ 2.2. International and National Criminal Investigatory Commission ............................................................................................ 2.3. International and National Truth Commissions ......................... 2.4. National Prosecutions ......................................................................... 2.5. National Lustration Mechanisms ..................................................... 2.6. National Civil Remedies ..................................................................... 2.7. Mechanisms for the Reparation of Victims .................................. 2.8. Policy Considerations .......................................................................... 2.9. Selecting the Appropriate Accountability Mechanism ............. 2.10. The Right to a Remedy and Reparation for Victims .................. 2.10.1. The Duty to Provide a Remedy ......................................... 2.10.2. Duty to Provide Reparation ............................................... 2.10.3. Forms of Reparation ............................................................ 2.11. Social Policy Considerations ........................................................... 2.12. The Internationalization of National Criminal Justice ........... 3. Amnesties and International Criminal Justice ..................................... 4. Assessment ......................................................................................................

909 909 915

XI. Reflections on International Criminal Justice: Past and Future ........... 1. Introduction .................................................................................................... 2. Law and Legal Systems in Historical Perspective ............................... 3. The Origins of Justice Values ..................................................................... 4. Of War and Peace, and of Interests and Values .................................. 4.1. Contemporary Post-Conflict Justice ..............................................

983 983 989 991 993 995

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4.2. War, Peace, and Realpolitik .............................................................. 4.3. The Challenge of Impunity .............................................................. 5. The Origins of International Criminal Law ......................................... 6. From Tribalism to Supra-Nationalism ................................................... 7. The Paradigms of International Law and Their Evolution ............. 8. International Criminal Justice in the Age of Globalization ............ 8.1. Introduction ......................................................................................... 8.2. The Twentieth Century ..................................................................... 8.3. The Third Stage ................................................................................... 8.4. Tokenism, Symbolism, and Head of State Prosecution .......... 9. Assessment .....................................................................................................

XII. A Historical Review and Quantitative Analysis of International Criminal Justice ................................................................................................. 1. The Historical Stages of International Criminal Justice .................. 1.1. The Early Historic Period—Thirteenth to Nineteenth Centuries ................................................................................................ 1.2. The Twentieth Century ...................................................................... 1.3. The Third Stage .................................................................................... 2. Quantitative Analysis of International Criminal Prosecutions from World War II to 2012 ........................................................................ 2.1. Introduction .......................................................................................... 2.2. The World War II Cases .................................................................... 2.3. The Cold War ........................................................................................ 2.4. The Reemergence of ICL ................................................................... 3. Deterrence and the Value of ICL ............................................................ 4. Tokenism, Symbolism, and Head of State Prosecution ................... 5. Assessment .....................................................................................................

xv 997 1002 1003 1008 1011 1013 1013 1023 1030 1036 1041 1047 1047 1047 1052 1058 1058 1058 1061 1068 1070 1076 1082 1087

List of Court Cases ...................................................................................................... 1093 Index ............................................................................................................................... 1101

TABLE OF AUTHORITIES Books Michael Abell & Bruno A. Ristau, International Judicial Assistance: Criminal Extradition (1995) Salvatore Adinolfi, Diritto Internazionale Penale (1913) Afghanistan: Judicial Reform and Transitional Justice (International Crisis Group, Jan. 28, 2003) S.K. Agrawala, Aircraft Hijacking and International Law (1973) Civilizing World Politics: Society and Community Beyond the State (Mathias Albert, Luthar Brock & Klaus Dieter Wolf eds., 2001) Carlos Alcorta, Principios de Derecho Penal Internacional (1931) Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansästze einer Dogmatisierung (2002) American Bar Association, Aba Standards For Criminal Justice, Fair Trial and Free Press (1992) Concepts and Strategies in International Human Rights (George J. Andreopoulos ed., 2002) George Ananstaplo, The Constitution Of 1787: A Commentary (1989) The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (George J. Annas & Michael A. Grodin eds., 1992) John A. Appleman, Military Tribunals and International Crimes (1972) Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (1979) Hannah Arendt, Eichmann in Jerusalem: A Report On The Banality Of Evil (1963) Dario Arfelli, Cicerone, De Doveri (1991) Aristotle, Ethics, I and Politics, I (W.D. Ross trans., 1954) —— Nicomachean Ethics (T. Irwin trans., 1985) Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism (Martinus Nijhoff 2004). Eugene Aronéanu, La Définition de l’Agression: Exposé Objectif (1958) —— Le Crime Contre l’Humanité (1961) Droit Pénal International (Hervé Ascensio, Emmanuel Decaux & Alain Pellet eds., 2000) Robert Asprey, The Rise of Napoleon Bonaparte 405 (2001) Thomas Aquinas, Summa Theologica (1485)

xviii

table of authorities

Paul Aussaresses, Services spéciaux, Algérie 1955–1957 (2001) Anthony Aust, Modern Treaty Law and Practice (2d. ed. 2007) John Austin, The Province of Jurisprudence Determined (1954) Balthazar Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri III (1582) André Aymard & Jeannine Auboyer, L’Orient et la Grèce Antique (1953) James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency From the Cold War Through the Dawn of a New Century (2001) Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000) The Contributions of Specialized Institutes and Non-Governmental Organizations to the U.N. Criminal Justice Program (M. Cherif Bassiouni ed., 1995) M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995) The Contributions of Specialized Institutes and Non-Governmental Organizations to the U.N. Criminal Justice Program (M. Cherif Bassiouni ed., 1995) M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2d rev. ed. 1999) M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011) The Criminal Justice System of the USSR (M. Cherif Bassiouni & Valeri M. Savitsky eds., 1979) M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) Draft Principles on the Independence of the Judiciary and on the Independence of the Legal Profession, 5 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1982) M. Cherif Bassiouni, The Future of Human Rights in the Age of Globalization in 40 Denver J. Int’l L. & Pol’y 22 (2012). M. Cherif Bassiouni, The Institutionalization of Torture in the Bush Administration: Is anyone Responsible? (2010) M. Cherif Bassiouni, International Crimes, Digest/Index of International Instruments 1815–1985 (2 vols., 1985) M. Cherif Bassiouni, An International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) The International Criminal Court: Observations and Issues Before the 1997–1998 Preparatory Committee, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1997)



table of authorities

xix

1 International Criminal Law: Sources, Subjects, and Contents (M. Cherif Bassiouni ed., 3d rev. ed. 2008) 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d rev. ed. 2008) 3 International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d rev. ed. 2008) International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997) M. Cherif Bassiouni, International Criminal Law: Documents Supplement (2000) M. Cherif Bassiouni, International Criminal Law: A Draft International Criminal Court (1980), French translation by Christine Van den Wyngaert, under the title Projet de Code Pénal International, [I, II] 51 Rev. Int’le de Droit Pénal (1980) M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007) International Terrorism and Political Crimes (M. Cherif Bassiouni ed., 1975) International Terrorism: A Compilation of U.N. Documents (M. Cherif Bassiouni ed., 2002) International Terrorism: Multilateral Conventions, 1937–2001 (M. Cherif Bassiouni ed., 2001) M. Cherif Bassiouni, Introduction au Droit Pénal International (2002) Islamic Criminal Justice System (M. Cherif Bassiouni ed., 1982) La Corte Penal Internacional (M. Cherif Bassiouni et al. eds., 2001)  M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996) M. Cherif Bassiouni, Le Fonti e Il Contenuto Del Diritto Penale Internazionale: Un quadro Teorico (1999) Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) M. Cherif Bassiouni, 1 The Legislative History of the International Criminal Court : Introduction, Analysis, and Integrated Text (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, 2 The Legislative History of the International Criminal Court: An Article-by-Article Evolution of the Statute From 1994–1998 (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, 3 The Legislative History of the International Criminal Court : The 1988 Diplomatic Conference (M. Cherif Bassiouni ed., 2005) M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000)

xx

table of authorities

Organized Crime: A Compilation of United Nations Documents, 1975–1998 (M. Cherif Bassiouni & Eduardo Vetere ed., 1999) Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., 2010) M. Cherif Bassiouni, Substantive Criminal Law (1978) The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) M. Cherif Bassiouni, Torture by the U.S.: Is Anyone Responsible? (forthcoming 2010) International Criminal Law: A Guide to U.S. Practice and Procedure (Ved P. Nanda & M. Cherif Bassiouni eds., 1987) Observations on the Consolidated ICC Text Before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler, Special Ed., M. Cherif Bassiouni, General Ed., 1998) 1, 2 A Treatise on International Criminal Law (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) James Basque, Other Losses: The Shocking Truth Behind the Mass Deaths of Disarmed German Soldiers and Civilians Under General Eisenhower’s Command (1991) Fritz Bauer, Die Kriegeverbrecher vor Gericht (1945) Carol E. Baumann, The Diplomatic Kidnappings: A Revolutionary Tactic of Urban Terrorism (1973) Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed. 1997) Anne F. Bayefsky, How to Complain to the U.N. Human Rights Treaty System (2002) —— The U.N. Human Rights Treaty System: Universality at the Crossroads (2001) Cesare Beccaria-Bonesana, An Essay on Crimes and Punishments (Academic Reprints ed. 1953) —— Dei delitti e delle pene (Franco Venturi ed., 1965) —— On Crimes and Punishments (Richard Bellamy ed., 1995) International Rules: Approaches from International Law and International Relations (Robert J. Beck ed., 1996) International Law: Achievements and Prospects (Mohammed Bedjaoui ed., 1992) Mohammed Bedjaoui, The New World Order and the Security Council (1994)



table of authorities

xxi

The Death Penalty in America: Current Controversies (Hugo A. Bedau ed., 2d ed. 1998) Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges (2005) —— Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) 73–74 (2006) Charles R. Beitz, Political Theory and International Relations (1979) David A. Bell, The First Total War: Napoleon’s Europe and the Birth of Warfare as We Know It (2007) Michal R. Belknap, The Vietnam War on Trial: The My Lai Massacre and Court-Martial of Lieutenant Calley (2002) Norman DeMattos Bentwich & Andrew Martin, Commentary On The Charter Of The United Nations 88 (1969) Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1780) (James H. Burns & Herbert L. A. Hart eds., 1970) —— The Works of Jeremy Bentham (John Bowring ed. 1859) The Age of Enlightenment: The Eighteenth Century Philosophers (Isaiah Berlin ed., 1956) Harold J. Berman, Justice in the USSR (1963) —— Soviet Criminal Law And Procedure: The RSFSR Codes (Harold J. Berman & James W. Spindler trans., 2d ed. 1972) Paolo Bernasconi, New Judicial Instruments Against International Business Crimes (1995) Geoffrey Best, Humanity in Warfare (1983) —— Law and War Since 1945 (2d ed. 1997) Michael Beschloss, May-Day: Eisenhower, Khrushchev, and the U-2 Affair (1986) Baburo Bhiroyama, War Criminal: The Life and Death of Hirota Roki (1977) Michael Bilton & Kevin Sim, Four Hours in My Lai: The Soldiers of Charlie Company (1992) William Blackstone, Commentaries (1769) Christopher Blakesley, Terrorism, Drugs, International Law and the Protection of Human Liberty (1992) Christopher Blakesley, Terrorism and Anti-Terrorism (2006) Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1992 updated through 2008) Human Rights Sourcebook (Albert P. Blaustein et al. eds., 1987) J.C. Bluntschli, Das moderne Völkerrecht des civilisten staten als Rechtsbuch dargestellt (2d ed. 1872) Gideon Boas, James L. Bischoff, & Natalie L. Reid, International Criminal Law Practitioner Library (vol. 1, Cambridge University Press 2007) Jean Bodin, De Republica (1576)

xxii

table of authorities

—— Les Six Livres de La République (1580) Pierre Boissier, Völkerrecht und Militärbefehl (1953) Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008) Honoré Bonet, Tree of Battles (ca. 1387) Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (2002) Hartley Booth, British Extradition Law and Procedure (1980) Michael Bothe et al., New Rules for Victims of Armed Conflicts (1982) Arnold C. Brackman, The Other Nuremberg: The Untold Story of The Tokyo War crimes trials (1987) J.L. Brierly, The Law of Nations (1955) Lea Brilmayer, Justifying International Acts (1989) The British Manual of Military Law, No. 443 (1914) Arnold C. Brockman, The Other Nuremberg, The Untold story of the Tokyo War Crimes Trial (1987) J. Bröhmer, State Immunity and the Violations of Human Rights (1997) The New Shorter Oxford English Dictionary On Historical Principles (Lesley Brown ed., 1993) Basic Documents of Human Rights (Ian Brownlie ed., 2d ed. 1980) Ian Brownlie, International Law and the Use of Force by States (1963) —— Principles of Public International Law (3d ed. 1979) —— State Responsibility: System of the Law of Nations (1983) —— System of the Law of Nations: State Responsibility (1983) Kosovo: Contending Voices on Balkan Interventions (William Joseph Buckley ed., 2000) Thomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th rev. ed. 1995) The Laws of Manu (Georg Bühler trans., Motilal Banarsidass 1964) Hedley Bull, The Anarchical Society (1977) Hugo Grotius and International Relations (H. Bull, B. Kingsbury & A. Roberts eds., 1990) The U.N. Convention against Torture: A Handbook on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (J. Herman Burgers & Hans Danelius eds., 1988) Jean Jacques Burlemaqui, Principes du Droit Naturel et Politique (1748) Franck M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946– 1955 (1989) Diplomatic Investigations (H. Butterfield & M. Wight eds., 1968) Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999)



table of authorities

xxiii

The Role of Law in International Politics: Essays in International Relations and International Law (Michael Byers ed., 2000) Greg Campbell, Blood Diamonds: Tracing The Deadly Path of the World’s Most Precious Stones (2002) Pierre Carjeu, Projet d’une juridiction pénale internationale (1953) Thomas Carlyle, The French Revolution (1989) (1837) Carnegie Endowment for International Peace, The Other Balkan Wars: A 1913 Carnegie Endowment Inquiry in Retrospect (1993) —— The Proceedings of the Hague Peace Conferences: Translation of Official Texts—The Conference of 1899 (1920) —— Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (1914) —— The Treaties of Peace 1919–1923 (1924) Raymond Cartier, Les Secrets de la guerre Dévoilés par Nuremberg (1967) Anthony Carty, The Decay of International Law (1986) Antonio Cassese, International Law in a Divided World (1986) Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds., 2002) Ctr. for Strategic Research, The Armenian “Genocide”: Facts and Figures (2007) Sorj Chalandon & Pascale Nivelle, Crimes Contre L’Humanité: Barbie Touvier Bousquet Papon (1998) Radharaman Chakrabarti, Intervention and the Problem of its Control in the Twentieth Century (1974) David G. Chandler, The Campaigns of Napoleon (1966) Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea 1976–1977 (David P. Chandler et al. trans. & eds., 1988) Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1997) Encyclopedia of Genocide (2 vols., Israel Charney ed., 1999) Le Chef d’Etat et le Droit International (SFDI 2002) Lung-Chu Chen, An Introduction to Contemporary International Law (1989) Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Simon Chesterman & Angelina Fisher eds., 2010) Daniel Chirot, Modern Tyrants: The Power and Prevalence of Evil in our Age (1994) Marcus Tullius Cicero, De Officiis (1483)

xxiv

table of authorities

—— De Officiis, (G.P. Goold ed., Walter Miller trans., 1975) —— De Republica and De Legibus (C.W. Keyes, trans., 1928) —— On the Commonwealth (George H. Sabine trans., 1929) Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002) Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006) The Prosecution of International Crimes (Roger S. Clark & Madeleine Sann eds., 1996) Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (2010) Wesley K. Clark, Waging Modern War (2001) David Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (2006) R.G. Collingwood, The New Leviathan (1942; rev. ed. 1992) Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales 1 (1993) Compte Rendu de la xxiii Conference Tenue A Washington et a Ottawa en 1925 (1926) Robert E. Connot, Justice at Nuremberg (1983) Consiglio Superior Della Magistratura. Estradizione E Spazio Giuridico Europeo (1979) War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998) Responsibility to Protect: The Global Moral Compact for the 21st Century (Richard H. Cooper & Juliette Voinov Kohler eds., 2009) F. Copleston, A History of Philosophy (1960) P.E. Corbett, Law and Society in the Relations of States (1951) Francesco Cosentini, Essai d’un Code Pénal International Dressé sur la Base Comparative des Projets et Textes Récents des Codes Pénaux (1937) Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (1997) Council of Europe, Human Rights in International Law: Basic Texts pas‑ sim (1985) George Creel, War Criminals and Punishment (1944) Ronald D. Crelinstin & Denis Szabo, Hostage-Taking (1979) Carol M. Crosswell, Protection of International Personnel Abroad (1952) Derek Croxton & Anuschka Tischer, The Peace of Westphalia: A Historical Dictionary (2002) Cryer & Boister, The Tokyo International Military Tribunal: A Reappraisal (2008)



table of authorities

xxv

Nuremberg Warns: From Nazism to Terrorism (in Russian) (A.I. Cukhanova ed., 2002) Vahakn N. Dadrian, German Responsibility in the Armenian Genocide (1997) —— The History of the Armenian Genocide (1995) George Dahm, Zur problematik des Völkerstrafrechts (1956) Anthony D’Amato, The Concept of Custom in International Law (1971) The International Court of Justice at a Crossroads (Lori Fisler Damrosch ed., 1987) Law and Force in the New International Order (Lori Fisler Damrosch & David Scheffer ed., 1991) G. M. Danilenko, Law-Making in the International Community (1993) Eric David, 1–3 Elements de Droit Penal International (1992) René David, Les grands systèmes de droit contemporains (1973) René David, Major Legal Systems in the World Today (John E.C. Brierley trans., 1985) The Trial of the Germans: An Account of the Twenty-Two Defendants Before the International Military Tribunal at Nuremberg (Eugene Davidson ed., 1966) Scott Davidson, The Inter-American Human Rights System (1997) Lucy S. Dawidowicz, The War Against the Jews, 1933–1945 (1975) The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Laurence Boisson de Chazournes & Vera Gowlland-Debbas eds., 2001) A.G. de Barante, Histoire des Ducs de Bourgogne de la Maison de Valois, 1364–1477 (Paris, 1824) La Criminalisation du Comportement Collectif: XIVe Congrès International de Droit Comparé (Hans de Doelder & Klaus Tiedeman eds., 1996) André de Hoogh, Obligatio Erga Omnes and International Crimes (1996) Jose Luis de la Cuesta Arzamendi, El Delito de Tortura (1990) Jose Luis de la Cuesta Arzamendi, Derecho Penal Internacional Projecto de Codigo Penal International (1983) Isabel Lirola Delgado & Magdalena M. Martín Martínez, La Corte Penal Internacional: Justicia versus Impunidad (2001) Carla del Ponte with Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (2008) Democracy: Its Principles and Achievement (Inter-Parliamentary Union ed. 1998) Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., 1990)

xxvi

table of authorities

Genocide in Cambodia: Documents from the Trial of Pol Pot & Ieng Sary (Howard J. DeNike et al. eds., 2000) Alessander Passerin D’Entrèves, Natural Law: An Introduction to Legal Philosophy (2d ed., 1970) Bart De Schutter, La Belgique et le Droit International Pénal (1975) Ingrid Detter, The Law of War (2d ed. 2000) Emmerick De Vattel, The Law of Nations, Book II (Charles G. Fenwick trad., 1916) —— Le Droit des Gens (1758) Franciscus de Victoria, De Indis et de Ivre Belli Reflectiones (1696), reprinted in Classics of International Law No. 7 (James Brown Scott ed., John Pawley Bate trans., 1917) Charles De Visscher, Theory and Reality in Public International Law 89 (P.E. Corbett trans., rev. ed. 1968) Patrick Devlin, The Enforcement of Morals (1965) Alfred M. de Zayas, The Wehrmacht War Crimes Bureau: 1939–1945 (1989) Jared Diamond, Guns, Germs and Steel: The Fates of Human Societies (1999) Giuseppe Tomasi di Lampedusa, The Leopard (Archibald Colquhoun trans., 1991) (1959) Yoram Dinstein, The Defense of “Obedience to Superior Orders” in International Law (1965) —— War, Aggression and Self-Defense (3d ed. 2001) Dan Dobbs, The Law of Torts (2001) Henri F. Donnedieu De Vabres, Introduction à l’Etude du Droit Pénal International (1922) —— Les principes Modernes du Droit Pénal International (1928) —— Traite de Droit Criminel et de Legislation Penale Comparee (1947) John Donne, Devotions Upon Emergent Occasions XVII (London, 1626) Jack Donnelly, Universal Human Rights in Theory and Practice (2d ed. 2003) Jack Donnelly & Rhoda E. Howard, International Handbook of Human Rights (1987) Marco Sassoli & Antoine A. Bouvier et. al., How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (2005) Gerald I.A.D. Draper, The Red Cross Convention (1958) The International Criminal Court: Global Politics and the Quest for Justice (William Driscoll et al. eds., 2004) Pieter N. Drost, The Crime of State: Penal Protections for Fundamental Freedoms of Persons and Peoples (1959) Barry H. Dubner, The Law of International Sea Piracy (1980)



table of authorities

xxvii

John B. Duff & Larry A. Greene, Slavery: Its Origins and Legacy (1975) International Criminal Law and Procedure (John Dugard & Christine Van den Wyngaert eds., 1996) Jean Henry Dunant, Un Souvenir de Solferino (2d ed. 1862) Human Rights in Global Politics (Tim Dune & Nicholas Wheeler eds., 1999) Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process (2d ed. 2006) Will Durant & Ariel Durant, The Age of Reason Begins (1961) Gerald Dworkin, Morality, Harm and the Law (1994) Mohammed Hassanein Ebeid, Al-Jarima Al-Dawlia, The International Crime (1979) Comparative Law in Global Perspective (Ian Edge ed., 2001) Albert A. Ehrenzweig & Erik Jayme, 2 Private International Law (1973) Dennis Eisenberg, Uri Dan & Eli Landau, The Mossad, Israel’s Secret Intelligence Service—Inside Story (1978) Taslim Olawale Elias, The Modern Law of Treaties (1974) Jacques Ellul, 1, 2 Histoire des Institutions et des Faits Sociaux (1955) Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (2003) Judith Ennew, Debt Bondage: A Survey (1981) Justification and Excuse (Albin Eser & George P. Fletcher eds., 1987) The Individual as Subject of International Cooperation in Criminal Matters (Albin Eser, Otto Lagodny & Christopher Blakesley eds., 2002) Principles and Procedures for a New Transnational Criminal Law (Albin Eser & Otto Lagodny eds., 1992) Religion and Global Order (John L. Esposito & Michael Watson eds., 2000) Legal Aspects of International Terrorism (Alona E. Evans & John F. Murphy eds., 1978) Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (2008) International Law: A Contemporary Perspective (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) The International Law of Civil War (Richard A. Falk ed., 1971) Richard Falk, Revitalizing International Law (1989) Douglas Farah, Blood from Stones: The Secret Financial Network of Terror (2004) —— Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (2007) Joel Feinberg, Doing and Deserving: The Classic Debate (1970) Classics of International Law (Charles G. Fenwick trad., 1916) Benjamin B. Ferencz, Defining International Aggression: the Search for World Peace (1975)

xxviii

table of authorities

—— An International Criminal Court (1980) Guillermo Fierro, La Ley Penal y el Derecho Internacional (2d ed. 1997) John Finnis, Natural Law and Natural Rights (1980) Piero Fiorelli, 1, 2 La Tortura Giudiziaria el Dirritto Comune (1953) International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Law and Force in the New International Order (Lori Fisler Damrosch & David Scheffer eds., 1991) The Handbook of Humanitarian Law in Armed Conflicts (Dieter Fleck ed., 1995) George Fletcher, Rethinking Criminal Law (1978) Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (1999) —— The Power of Legitimacy Among Nations (1990) Benjamin Franklin, Historical Review of Pennsylvania (1759) Preventive Detention: A Comparative and International Law Perspective (Stanislaw Frankowski & Dinah Shelton eds., 1992) Charles Freeman, Egypt, Greece, and Rome: Civilizations of the Ancient Mediterranean (1996) Paul A. Freund, Experimentation with Human Subjects (1970) Terrorism: Documents of International and Local Control (Robert A. Friedlander ed., 1981) Leon Friedman, The Law of War: A Documentary History (1972) Carl J. Friedrich, The Philosophy of Law in Historical Perspective (2d ed. 1990) Lon L. Fuller, The Morality of Law (2d ed. 1969) Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009) Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997) Sévane Garibian, Le Crime Contre L’humanité au Regard des Principles Fondateurs de L’etat Moderne (2009) Blacks Law Dictionary (Brian Garner ed., 7th ed. 1999) James W. Garner, International Law and the World War (1920) Alberico Gentili, De Iure Belli Libri Tres (Carnegie ed., John C. Rolfe trans., 1933) —— De Jure Belli Libri Tres (1612), reprinted in 2 Classics of International Law No. 16 (James Brown Scott ed., John C. Rolfe trans., 1933) Edward Gibbon, The Decline and Fall of the Roman Empire (6 vols., 1960) Alicia Gil Gil, Derecho Penal Internacional (1999)



table of authorities

xxix

William C. Gilmore, Dirty Money: The Evolution of Money Laundering Counter-Measures (1993) International Efforts to Combat Money Laundering (W.C. Gilmore ed., 1992) Nuremberg Trial and International Law (George Ginsburgs & Vladimir N. Kudriavtsev eds., 1990) Stefan Glaser, Crimes internationaux (1957) —— 1 Droit International Pénal Conventionnel (1971) —— 2 Droit International Pénal Conventionnel (1978) —— Droit Pénal International (1971) —— Infractions Internationale: Ses Elements Contitutifs et Ses Aspect Juridiques: Expose sur la Base du Droit Penal Compare (1957) —— Introduction à l’Etude du Droit International Pénal (1954) H. Patrick Glenn, Legal Traditions of the World (2d ed. 2004) Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (1992) 1 Global Cmty Y.B. Int’l L. & Jurisprudence (2007) Sheldon Glueck, The Nuremberg Trial and Aggressive War (1946) Jewish Law and Legal Theory (M. Golding ed., 1994) Legalization and World Politics (Judith Goldstein, Mikes Kahler, Robert O. Keohane, & Anne-Marie Slaughter eds., 2001) Donna Gomien, Judgments of the European Court of Human Rights, 1959–95 (1996) Herbert F. Goodrich & Eugene F. Scoles, Conflict of Laws (4th ed. 1964) Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed With Our Families (1998) Michael Grant, The Ancient Mediterranean (1969) Horace Greeley, The American Conflict (1865) Leslie Green, The Contemporary law of Armed Conflict (2d ed. 2000) —— Essays on the Modern Law of War (2d ed. 1999) —— Superior Orders in National and International Law (1976) Essays on the Modern Law of War (Leslie Green ed., 2d ed. 1999) Morris Greenspan, Modern Law of Land Warfare (1959) Hugo Grotius, De Jure Belli ac Pacis Libri Tres: Classics of International Law (Francis W. Kelsey trans., 1925) William P. Guthrie, The Later Thirty Years War: From the Battle of Wittstock to the Treaty of Westphalia (2003) Jerome Hall, General Principles of Criminal Law (2d ed. 1960) W.E. Hall, A Treatise on International Law (A. Pearee Higgins ed., 8th ed. 1924) Muhammad Hamidullah, The Muslim Conduct of State (4th ed. 1961) W.K. Hancock, Four Studies of War and Peace in this Century (1961)

xxx

table of authorities

Gerd Hankel, Die Leipziger Prozesse (2003) Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen (Gerd Hankel & Gerhard Stuby ed., 1995) Strafgerichte Gegen Menschheitsverbrechen (Gerd Hankel & Gerhard Stuby eds., 1995) Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status (1988) Harper et al., The Law of Torts (3d ed. 1996) David J. Harris, Michael et al., Law of the European Convention on Human Rights (1995) Whitney R. Harris, Tyranny on Trial (1954) Herbert L.A. Hart, The Concept of Law (1961) —— Punishment and Responsibility: Essays in the Philosophy of Law (1968) H.L.A. Hart & Raz Bulloch Hart, The Concept of Law (2d ed. 1997) Andreas Hasenclever, Peter Mayer & Volker Rittberg, Theories of International Regimes (1997) Pierre Hassner, Violence and Peace: From the Atomic Bomb to Ethnic Cleansing (1995) Gideon Hausner, Justice in Jerusalem (1966) Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001) —— Unspeakable Truths: The Place for Truth Commissions in a Changing World (2000) Law In The United States of American and in Social and Technological Revolution (John N. Hazard & Wenceslas J. Wagner eds., 1974) Georg W.F. Hegel, Elements of the Philosophy of Right (H.B. Nisbet trans., 1991) —— Phenomenology of Spirit (A.V. Miller trans., 1979) —— The Philosophy of Right (S.W. Dyde trans., 1996) August Hegler, Prinzipien des Internationalen Strafrecths (1906) Robert D. Heinl, Dictionary of Military and Naval Quotations (1956) Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict (2005) International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2006) The Legacy of Abuse: Confronting the Past, Facing the Future (Alice H. Henkin ed., 2002) Louis Henkin, How Nations Behave (2d ed. 1979)



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—— International Law: Politics and Values (1995) Human Rights: An Agenda for the Next Century (Louis Henkin & John Lawrence Hargrove eds., 1994) The International Bill of Rights: The Covenant on Civil and Political Rights (Louis Henkin ed., 1981) Le Droit Pénal à l’Épreuve de l’Internationalisation (Marc Henzelin & Robert Roth eds., 2002) Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000) Lectures on the History of Moral Philosophy, John Rawls (Barbara Herman ed., 2000) J. Christopher Herold, The Age of Napoleon (2002) (1963) Wilhelm Gustav Hertz, Das Problem des Völkerrechtlichen Agriffs (1935) George L. Hicks, The Comfort Women: Japan’s Brutal Regime of Enforced Prostitution in the Second World War (1997) Rosalyn Higgins, Problems & Process: International Law and How We Use It (1994) Raul Hilberg, The Destruction of the European Jews (3 vols. 1985) F.H. Hinsley, Sovereignty (1966) John L. Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy (2001) Christopher Hitchens, The Trial of Henry Kissinger (2002) Thomas Hobbes, Leviathan ([1651] M. Oakeshott ed., 1957) —— On the Citizen (Richard Tuck & Michael Silverthorne eds., 1998) Pondering Postinternationalism: A Paradigm For the Twenty-First Century? (Heidi H. Hobbs ed., 2000) Erik Hobsbawm, The Age of Extremes: A History of the World, 1914–1991 (1995) Barnett Hollander, The International Law of Art for Lawyers, Collectors and Artists (1959) Homer, The Odyssey (Richmond Lattimore ed. & trans., 1967) Roger Hood, The Death Penalty: A Worldwide Perspective (3d ed. 2002) The Tokyo War Crimes Trial: An International Symposium (C. Hosoya et al. eds., 1986) A.E. Dick Howard, Magna Carta: Text and Commentary (1964) M. Howard, G. Andreopoulos & M. Shulman, The Law of War: Constraints on Warfare in the Western World (1994) Holmes Pollock Letters (M. Howe ed., 1941) André Huet & Renée Koering-Joulin, Droit Pénal International (1994) Victor Hugo, Histoire d’un Crime (1852) Human Rts Watch, Justice on the Balance: Recommendations for an Independent and Effective International Criminal Court (1998)

xxxii

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Great Books of the Western World (Robert Maynard Hutchins ed., 1952) Genbaku Saigaishi Henshu Iinkai, Hiroshima and Nagasaki: The Physical, Medical, and Social Effects of the Atomic Bombings (1981) Jeffrey Ian & Dawn L. Rothe, The Ironies of Controlling State Crime (2008) The International Criminal Court: Recommendations on Policy and Practice (Thordis Ingadottir ed., 2003) Jean Imbert et al., Histoires des Institutions et des Faits Sociaux (1956) In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002) International Center for Transitional Justice, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (2005) International Human Rights Law Institute, The Chicago Principles on Post-Conflict Justice (2008) The International Institute of Strategic Studies: 2000 Chart of Armed Conflict (2000) International Congress on Penal Law, Actes du XIIe Congrés International de Droit Pénal (Hamburg, Sept. 22, 1979) (Hans-Heinrich Jescheck ed., 1980) The International Institute of Strategic Studies: 2000 Chart of Armed Conflict Akira Iriye, Cultural Internationalism and World Order (1997) David Irving, Nuremberg: The Last Battle (1996) John Jackson, Maximo Langer & Peter Tillers, Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honor of Professor Mirian Damaska (2008) Robert H. Jackson, The Nürnberg Case (1971) Mark Janis, An Introduction to International Law (3d ed. 1999) —— Richard Kay & Anthony Bradley, European Human Rights Law: Text and Materials (1995) International Courts For The Twenty‑First Century (Mark W. Janis ed., 1992) Religion in International Law (Mark Janis & Carolyn Evans eds., 1999) 1,2 Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992) Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952) —— Lehrbuch des Strafrechts (1988) Hans-Heinrich Jescheck & Thomas Weigend, Lehrbruch des Strafrechts: Allgemeiner Teil (1996) Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (2004)



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Alun Jones, Jones on Extradition (1995) Contemporary Genocides: Causes, Cases, and Consequences (Albert J. Jongman ed., 1996) Nina H.B. Jørgensen, The Responsibility of States for International Crimes (2000) James Avery Joyce, Capital Punishment: A World View (1961) Nancy D. Joyner, Contemporary Concept of Piracy in International Law (1974) Reining In Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1997, 14 Nouvelles Études Pénales (Christopher C. Joyner special ed., & M. Cherif Bassiouni gen. ed., 1998) Frits Kalshoven & Lisbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (3d ed. 2001) Immanuel Kant, The Categorical Imperative (1797) —— Groundwork of the Metaphysics of Morals (H.D. Paton trans., 1946) —— The Metaphysical Elements of Justice (John Lord trans., 1965) —— Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Pauline Kleingeld ed., David L. Colclasure trans., 2006) (1795) Wojciech Materski, Katyn, A Crime Without Punishment (Anna M. Cienciala and Natalia S. Lebedeva eds., 2008) Igor I. Kavass & Adolf Sprudzs, 1 & 2 Extradition Laws and Treaties (2001) Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed., 1997) John Keegan, A History of Warfare (1993) —— The Illustrated Face of Battle (Viking Press 1988) Maurice H. Keen, The Laws of War in the Middle Ages (1965) Joseph B. Keenan & Brendan F.Brown, Crimes Against International Law (1950) Nico Keijzer, Military Obedience (1978) Barry Kellman, Manual for National Implementation of the Chemical Weapons Convention (2d ed. 1998) Justice as Fairness: A Restatement—John Rawls (Erin Kelly ed., 2001) Hans Kelsen, Pure Theory of Law (1970) John Maynard Keynes, The Economic Consequences of the Peace (1920) Majid Khadduri, War and Peace in the Law of Islam (1955) Kampuchea: Decade of the Genocide (Kimmo Kiljunen ed., 1984) Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Community (Ben Kiernan ed., 1993) 1, 2 Substantive and Procedural Aspects of International Criminal Law (Gabrielle Kirk-MacDonald & Olivia Swaak-Goldman eds., 2000)

xxxiv

table of authorities

Jeanne Kirkpatrick & Alan Gerson, Right v. Might: International Law and the Use of Force (1989) Geert-Jan G.J. Knoops, Defenses in Contemporary International Criminal Law (2001) Noliva Kofele-Kale, International Law of Responsibility for Economic Crimes (1995) Joseph Kohler, Internationales Strafrecht (1971) Ruth A. Kok, Statutory Limitations in International Criminal Law (T.M.C. Asser Press 2007) T.H. Kooijmans, Internacionaal Publienkrecht In Vogelvlucht (2000) State Sovereignty and International Governance (Gerard Kreijen et al. ed., 2002) The Concept of Human Dignity in Human Rights Discourse (David Kretzmer & Eckart Klein eds., 2002) Transnational Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz ed., 1995) International Law: Classic and Contemporary Readings (Charlotte Ku & Paul F. Diehl eds., 1998) Leo Kuper, Genocide: Its Political Use in the Twentieth Century (1981) Richard Lael, The Yamashita Precedent: War Crimes and Command Responsibility (1982) Justice and Human Rights in Islam (Gerald E. Lampe ed., 1997) Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard Cases (2005) John H. Langbein, Torture and the Law of Proof (1977) The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Jean C. Lauret & Raymond Lassiera, La Torture et les Pouvoirs (1973) Individual Rights and The State of Foreign Affairs: An International Compendium (Elihu Lauterpact & John G. Collier eds., 1972) Hersh Lauterpacht, International Law: Collected Papers (Elihu Lauterpacht ed., 1970) —— International Law and Human Rights (1950) The Law of International Responsibility (James Crawford, Alain Pellet and Simon Olsen, eds. 2010) Lawyers Committee for Human Rights, The International Criminal Tribunal for the Former Yugoslavia: Establishment, Organization, Jurisdiction and Proceedings to Date (1995) League of Arab States Collection of Treaties and Agreements (1978) League of Nations, Proceedings of the International Conference for the Adoption of a Convention for the Suppression of Counterfeiting Currency (1929)



table of authorities

xxxv

International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001) Fabrizio Lemme, Tra Arte E Diritto (1996) Nino Levi, Diretto Penale Internazionale (1949) Howard S. Levie, The Code of International Armed Conflict (1986) —— Documents on Prisoners of War (1979) —— Prisoners of War in International Armed Conflicts (1979) —— Protection of War Victims (1979) —— Terrorism in War: the Law of War Crimes (1993) Terrorism: Documents of International and Local Control (Howard H. Levie ed., 1996) Haidong Li, Die Prinzipien des Internationalen Strafrechts (1991) R.J. Lifton, The Nazi Doctors (1986) International Relations: A Handbook of Current Theory (M. Light & A.J.R. Groom eds., 1985) Humanitarian Intervention and the United Nations (Richard B. Lillich ed., 1973) International Claims: Contemporary European Practice (Richard B. Lillich & Bruce H. Weston eds., 1982) Richard B. Lillich, International Claims: Postwar British Practice (1967) Richard B. Lillich, International Claims: Their Adjudication by National Commissions (1962) International Law of State Responsibility for Injuries to Aliens (Richard B. Lillich ed., 1983) Robert B. Lillich & Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice (3d ed. 1995) International Claims: Contemporary European Practice (Richard B. Lillich & Bruce H. Weston eds., 1982) Robert Linke et al., Internationales Strafrecht (1981) The Greening of Sovereignty in World Politics (Karen T. Litfin, ed., 1998) John Locke, Second Treatise of Government (Thomas D. Peardon ed., 1952) —— Droit Pénal International (1971) Claude Lombois, Droit Pénal International (2d rev. ed. 1979) Peter D. Lowes, The Genesis of International Narcotic Control (1966) Prosecuting Heads of State (Ellen Lutz and Caitlin Reiger eds., 2009) John A. Lynn, Battle: A History of Combat and Culture (2003) International Human Rights in the 21st Century: Protecting the Rights of Groups (Gene M. Lyons & James Mayall eds., 2003)

xxxvi

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Beyond Westphalia?: State Sovereignty and International Intervention (Gene M. Lyons & Michael Mastanduno eds., 1995) Amin Maalouf, Crusades Through Arab Eyes (Jon Rothschild trans., 1985) Douglas MacArthur, Reminiscences (1964) The European System for the Protection of Human Rights (R. St. J. Macdonald et al. eds., 1993) The International Law and Policy of Human Welfare (R.S.T.J. Macdonald, D.H. Johnston, & G.L. Morris eds., 1978) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (Stephen Macedo ed., 2003) Niccolo Machiavelli, Il Principe: Le Grandi Opere Politiche (1532) (G.M. Anselmi & E. Menetti trans., 1992) —— The Prince (Luigi Ricci trans., 1935) Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (2001) Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Times (1867) Farhad Malekian, International Criminal Responsibility of States (1985) —— The Concept of Islamic International Criminal Law (1994) —— 1, 2 International Criminal Law: The Legal And Critical Analyses Of International Crimes (1991) W. Thomas Mallison, Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968) Sean L. Malloy, Atomic Tragedy: Henry L. Stimson and the Decision to Use the Bomb Against Japan (2008) William Manchester, American Caesar: Douglas MacArthur 1880–1964 (1978) Ferrando Mantovani, Diritto Penale: Parte General (2001) Roger Manvell & Heinrich Fraenkel, The Incomparable Crime: Mass Extermination in the Twentieth Century: The Legacy of Guilt (1967) Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004) Ian Martin, Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention (2001) Jean Pierre Maunoir, La répression des crimes de guerre devant les tribunaux français et alliés (1956) Larry May, Humanitarian Crimes: Philosophical Problems in International Criminal Law (2001) Richard May & Marieke Wierda, International Criminal Evidence (2002) Essays on ICTY Procedure and Evidence (May, Tolbert, Hocking, Roberts, Bing Jia, Mundis & Oosthuizen eds., 2001) The Community of States (J. Mayall ed., 1982)



table of authorities

xxxvii

International Environmental Law and Policy (Stephen McCaffrey et al. ed., Aspen 1998) The Law of War Crimes: National and International Approaches (Timothy McCormack & Gerry Simpson eds., 1997) Values & Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008) Myres S. McDougal, Harold D. Lasswell & Lung-Chen Chung, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980) —— Law and Minimum World Public Order (1961) —— Law and Public Order in Space (1963) The Basic works of Aristotle (Richard McKeon ed., 1941) Frank McLynn, Napoleon (1997) Arnold D. McNair & Arthur D. Watts, The Legal Effects of War (1966) Extraterritorial Jurisdiction in Theory and Practice (Karl M. Meessen ed., 1996) Schengen: Internationalization of Central Chapters of the Law on Aliens, Refugees, Security and the Police (H. Meijers et al. ed., 1991) Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910) Wolfgang Menzel, Germany from the Earliest Period (1900) Roger Merle & André Vitu, Traité de Droit Criminel (1967) Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989) —— War Crimes Law Comes of Age (1998) Human Rights in International Law: Legal and Policy Issues (Theodor Meron ed., 1984) The Message of the Qur’an (Muhammad Asad trans., 2003) Perspectives on the Nuremberg Trial (Guénaël Mettraux ed., 2008) Guénaël Mettraux, The Law of Command Responsibility (2009) —— Perspective On The Nuremberg Trial (Guenael Mettraux ed., 1st ed. 2008) Karl Ernest Meyer, The Plundered Past (1977) Henri Meyrowitz, La Répression par les Tribunaux Allemands des Crimes Contre l’Humanité et de l’Appartenance à une Organisation Criminelle (1960) Dick de Mildt and Dirk. W. de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany: the “Euthenasia” and the “Aktion Reinhard” Trial Cases 22 (1996) John Stuart Mill, Utilitarianism And the 1868 Speech on Capital Punishment (George Sher ed., 2d ed. 2001) (1863)

xxxviii

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David Miller, Principles of Social Justice (1976) Order and Violence: Hedley Bull and International Relations (J.D.B. Miller & R. J. Vincent eds., 1990) Richard H. Minear, Victors’ justice: The Tokyo War Crimes Trials (1971) Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998) Alexander Mitscherlich & Fred Mielke, Doctors of Infamy: The Story of the Nazi Medical Crimes (1949) Charles de Secondat Montesquieu, De L’Esprit des Lois, Livre I, c.3, 1748 (La Pléiade ed., 1974) J.B. Moore, A Treatise on Extradition & Interstate Rendition (1891) Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (1989) Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1985) Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for Rwanda (1997) —— An Insider’s Guide to the International Criminal Tribunal for the Former-Yugoslavia: A Documentary History and Analysis (1995) —— 1, 2 The International Criminal Tribunal for Rwanda (1998) International Criminal Law (G.O.W. Mueller & Edward M.Wise ed., 1965) Gerhard O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985) La Cooperation Inter-Étatique Européene en Matière Penale (Ekkehart Müller-Rappard & M. Cherif Bassiouni ed., 2d rev. ed. 1991) Ekkehart Müller-Rappard, L’Ordre Supérieur Militaire et la Responsabilité Pénale du Subordonné (1965) Rein Müllerson, International Law, Rights and Politics (1994) Claude Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921) Heraldo Muñoz, The Dictator’s Shadow: Life Under Augusto Pinochet (2008) Cornelius F. Murphy, The Search for World Order: A Study of Thought and Action (1985) —— Theories of World Governance: A Study in the History of Ideas (1999) Jeffrie G. Murphy & Jean Hampton, Forgiveness & Mercy (1988) Terry Nardin, Law, Morality, and the Relation of States (1983) Nazi Conspiracy and Agression, Opinion and Judgment of the International Military Tribunal (1947) Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (1998) Global Society in Transition: An International Politics Reader (Daniel N. Nelson & Laura Neack eds., 2002)



table of authorities

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The Future of International Relations: Masters in the Making (Ives B. Neumann & Abe Weaver eds., 1997) The European Union and Human Rights (Nanette A. Neuwahl & Allan Rosas eds., 1995) The Law of Extradition and Mutual Legal Assistance (Clive Nicholls, Clare Montomery & Julian Knowles eds., 2002) F.S. Northedge, The Use of Force in International Relations (1974) 11 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed., 1993) 13 Nouvelles Etudes Pénales (1997) 71 Nouvelles Études Pénales (2000) Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (2008) Arthur Nussbaum, A Concise History of the Law of Nations (2d ed. 1954) Joseph S. Nye, Jr., Nuclear Ethics (1986) Dietrich Oehler, Internationales Strafrecht (1973) Aktuelle Probleme des Internationalen Strafrechts: Beitrage zur Gestaltung des Internacionalen und Eines Supranationalen Strafrects (Dietrich Oehler & Paul G. Potz ed., 1970) John O’Marnique, The Origins of Justice (2003) Lhassa Oppenheim, International Law (1st ed. 1906) Mark Osiel, Making Sense of Mass Atrocity (2008) Clare Ovey & Robin C.A. White, Jacobs & White, European Convention on Human Rights (3d ed. 2002) Oxford English Dictionary Ozdemir Ozgur, Apartheid, the United Nations and Peaceful Change in South Africa (1982) Antonio Pagliaro, Principi di Diritto Penale: Parte Generale (1996) Alan Palmer, Bernadotte: Napoleon’s Marshal, Sweden’s King (1990) Partnership Africa Canada, The Heart of the Matter: Sierra Leone, Diamonds & Human Security, (Jan. 2000) International Criminal Law, Cases and Materials (Jordan Paust, M. Cherif Bassiouni et. al. eds., 2d rev. ed. 2000) Blaise Pascal, Pensées (William F. Trotter trans., 1941) Jordan J. Paust & M. Cherif Bassiouni et al., International Criminal Law Cases and Materials (2001) Vespasian V. Pella, La Codification du Droit Pénal International (1922) —— La Criminalité Collective des Etats et le Droit Pénal de l’Avenir (1925) —— La Guerre-Crime et les Criminels de Guerre (1964) —— Rapport et Projet de Convention Présentés à la Société des Nations (1927) Joseph E. Persico, Nuremberg: Infamy on Trial (1994)

xl

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Peter Pahm, Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (2005) Albert Parry, Terrorism: From Robespierre to Arafat (1976) Richard Philippe, La Convention de Tokyo (1971) Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (1911) Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operation in the East 1945–1951 (1979) Jean S. Pictet, Le Droit Humanitaire et la Protection des Victimes de la Guerre (1973) —— 1 Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (1952) —— 2 Commentary on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1960) —— 3 Commentary on the Geneva Convention Relative to the Protection of Prisoners of War (1956) —— 4 Commentary on the Geneva Convention Relative to the Protection of Civilians in Time of War (1956) Jacques-Henri Pirenne, Panorama de l’Histoire Universelle (1963) Antonio Planzer, Le Crime de Génocide (1956) Stanislaw Plawski, Etude des Principes Fondamentaux du Droit International Pénal (1972) Theodore F.T. Plucknett, A Concise History of the Common Law (1936) Plutarch, Romulus (Loeb Classical Library 1914) Global Justice (Thomas W. Pogge ed., 2001) Mauro Politi & Giuseppe Nesi, The International Criminal Court and the Crime of Aggression (2004) The Rome Statute of the International Criminal Court: A Challenge to Impunity (Mauro Politi & Giuseppe Nesi eds., 2001) Cornelis A. Pompe, War: an International Crime (1953) Dominique Poncet, La Protection de L’Accuse Par la Convention Europeene des Droits de l’Homme (1977) Alessandro Portelli, The Order Has Been Carried Out: History, Memory and Meaning of a Nazi Massacre in Rome (2003) Brian Porter, Patterns of Thought and Practice: Martin Wight’s ‘International Theory,’ in The Reason of States 64 (M. Donelan ed., 1978) Roscoe Pound, Law and Morals (1969) Samantha Power, A Problem from Hell: America and the Age of Genocide (2002)



table of authorities

xli

Jean Pradel, Droit Pénal Comparé (1995) President’s Commission on Organized Crime, Interim Report to the President and the Attorney General, The Cash Connection: Organized Crime, Financial Institutions and Money Laundering (1984) Igor Primoratz, Justifying Legal Punishment (1989) Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction (2001) I–XXII The Tokyo War Crimes Trial: The Complete Transcripts Of The International Military Tribunal For The Far East (R. John Pritchard & Sonya M. Zaide eds., 1981) The Tokyo War Crimes Trials: The Comprehensive Index & Guide To The Proceedings Of The International Military Tribunal For The Far East (R. John Pritchard ed., 1981‑87) John Pritchard & Jane L. Garwood-Cutler, The Allied War Crimes Trials of Suspected Italian War Criminals, 1945–1949: A Forgotten Legacy with Vital Lessons for the Present Day (forthcoming) Gerard Prunier, The Rwanda Crisis: History of a Genocide (1997) Samuel Puffendorf, De Jure Naturae et Gentium Libri (1672) The Punishment of War Criminals: Recommendations of the London International Assembly (Report of Commission I) (1944) Christopher H. Pyle, Extradition, Politics, and Human Rights (2001) Rolando Quadri, Diritto Penale Internazionale (1944) Antonio Quintano-Ripoles, Tratado de Derecho Penal Internacional y Penal Internacional Penal (1957) Sayyid Qutb, Social Justice in Islam (1948) S. Ramadan, Islamic Law, Its Scope and Equity (1961) Emil S. Rappaport, Le Problème du Droit Pénal Interétatique (1930) Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d ed. 2001) John Rawls, The Law of Peoples with “The Ideal of Public Reason Revisited” (1999) —— A Theory of Justice (1971) A. Frank Reel, The Case of General Yamashita (1949) Bertil A. Renborg, International Drug Control: A Study of International Administration By and Through the League of Nations (1947) 68 Rev. Int’le de Droit Pénal (1997) Maria Riccarda-Marchetti, Instituzioni Europee e Lotta al Terrorismo (1986) Guy Richard, L’Histoire Inhumaine: Massacres et Génocides des Origines à nos Jours (1992) Report of the Cambodian Genocide Project (1984)

xlii

table of authorities

Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (U.S. Gov’t Prtg. Office 1949) Report of the Task Force on an International Criminal Court of The American Bar Association (Alaire Bretz Rieffel ed., 1994) Report of the 60th Conference of the International Law Association (1983) Guy Richard, L’Histoire Inhumane: Massacres et Genocides des Origines a Nos Jours (1992) Ahmed M. Rifaat, International Aggression (1979) Regime Theory and International Relations (Volker Rittberg ed., 1993) Documents on the Laws of War (Adam Roberts & Richard Guelff eds., 3d ed. 2000) Arthur H. Robertson, Human Rights in Europe (1978) A.H. Robertson & J.G. Merrills, Human Rights in the World (1989) Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002) Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (2001) Nehemiah Robinson, The Genocide Convention (1960) Paul H. Robinson, Criminal Law Defenses (4 vols. 1984) Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000) Victor Rodriguez, The Chicago Principles of Post-Conflict Justice: A Vision Since and on the Latin American Post-Conflict Experiences (2010) Herwig Roggeman, Die Internationalen Strafgerichtshöfe (1998) Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995) Bernard V.A. Roling, The Tokyo Trials and Beyond: Reflections Of A Peacemonger (Antonio Cassese ed., 1993) Judgments of the Member from India (B.V.A. Rolling & C.F. Ruter eds., 1977) Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Cesare P.R. Romana et al. eds., 2004) Governance Without Government: Order and Change in World Politics (James H. Rosenthal & Ernst-Otto Czempield eds., 1992) Charles E. Rousseau, Droit International Public (1980) Jean-Jacques Rousseau, Du Contrat Social (Ronald Ginsley ed., 1972) Pierre Roussel et al., La Grèce et L’Orient: Des Guerres Mediques à la Conquête Romaine (2d. ed., 1938) The Low Countries in Early Modern Times (Herbert H. Rowen ed., 1972) G.C. Rozankis, The Concept of Jus Cogens in The Law of Treaties (1976)



table of authorities

xliii

Joseph Roz, The Concept of a Legal System: An Introduction to the Theory of Legal Systems (1970) Alfred P. Rubin, The Law of Piracy (1998) John Gerard Ruggie, Constructing The World Polity: Essays on International Institutionalization (1998) Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993) Rudolph J. Rummel, Death by Government (1994) Steven Runciman, The Sicilian Vespers: A History of the Mediterranean World in the Later Thirteenth Century (1958) Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002) Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2010) Christoph Safferling, Towards an International Criminal Procedure (2001) Jean Salmon, Manuel de Droit Diplomatique (1994) Yves Sandoz, Commentary on the 1977 Additional Protocols (1986) Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War (2005) George Santayana, The Life of Reason (1905) Marco Sassoli & Antoine A. Bouvier et. al., How Does Law Protect in War: Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (2005) Responding to Money Laundering: An International Perspective (Ernesto U. Savona ed., 1997) William A. Schabas, An Introduction to the International Criminal Court (4th ed. 20011) —— Genocide in International Law: The Crimes of Crimes (2000) —— The UN Criminal Tribunals: The Former Yugoslavia, Rwanda, and Sierra Leone (2006) —— The International Criminal Court: A Commentary on the Rome Statute (2010) William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012) Hjalmar Horace Greely Schacht, The End of Reparations (Lewis Gannett trans., 1979) Michael P. Scharf: Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997) Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002)

xliv

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Michael Scharf, Universal Jurisdiction and the Crimes of Aggression, 53 Harv. Int’l L.J. 357 (2010). The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni, (Michael P. Scharf and Leila Nadya Sadat eds., 2008) The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Michael P. Scharf and Leila Nadya Sadat eds., 2008) Walter Schiffer, The Legal Community of Mankind (1954) Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts (1987) Droit des Conflits Armés, (Dietrich Schindler & Jiří Toman eds., 1996) Eberhard Schmidt, Militärstrafrecht (1936) The Law of Armed Conflict into the Next Millennium (Michael Schmitt & Leslie Green eds., 1998) Kosovo and the Challenge of humanitarian intervention (Albrecht Schnabel & Ramesh Thakur eds., 2000) Klaus Schwaighofer, Auslieferung und Internationales Strafrecht (1988) George Schwarzenberger, International Law (1968) —— The Dynamics of International Law (1976) —— International Law and Order (1971) —— Power Politics (2d ed. 1951) Torture as Tort (Craig Scott ed., 2001) Classics of International Law (James B. Scott ed., F. Kelsey trans., 1925) Raphael Sealey, A History of the Greek City States ca. 700–338 B.C. (1976) The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000) Huang Shao-Jun, An Introduction to International Criminal Law (in ­Chinese) (1992) Shaping Shao, International Criminal Law (in Chinese) (2000) International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) Dinah Shelton & Thomas Buergenthal, Protecting Human Rights in the Americas (4th ed. 1995) Helen Silving, The Constituent Elements of Crime (1967) The United Nations Charter: A Commentary (Bruno Simma ed., 1994) Sipri Yearbooks 1975‑1996 Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010) Bradley F. Smith, Reaching Judgment At Nuremberg (1977) Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (2010)



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A. Sottile, The Problem of The Creation of a Permanent International Criminal Court (1951) Peace and War in Antiquity (Alexander Souter ed., Augustine FitzGerald trans., 1931) United Nations Codification of State Responsibility (Maria Spinedi & Bruno Simma eds., 1987) The Emerging Practice of the International Criminal Court (Carsten Stahn & Göran Sluiter eds., 2009) Gaston Stefani, George Levassier, & Bernard Boulac, Droit Pénal Génèral (11th ed. 1995) Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals (1996) Edward S. Stimson, Conflict of Criminal Laws (1936) Julius Stone, Legal Controls of International Conflict (1954) Julius Stone & Robert Woetzel, Toward a Feasible International Criminal Court (1970) John Strenlaw, The International Politics of the Nigerian Civil War 1967–1970 (1977) Accountability for Atrocities: National and International Responses (Jane Stromseth ed., 2003) Lyal S. Sunga, The Emerging System of International Criminal Law (1997) A.H.J. Swart, International Strafrecht (1973) International Criminal Law in the Netherlands (Bert Swart & André Klip eds., 1997) Etudes et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984) Yuk Tanaka, Hidden Horrors: Japanese War Crimes in World War II (1996) Gebru Tareke, The Ethiopian Revolution: War in the Horn of Africa (2009) Bayard Taylor, A History of Germany: From the Earliest Times to the Present Day (1907) Lawrence Taylor, A Trial of Generals (1981) Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (1949) —— The Anatomy of The Nuremberg Trials (1992) —— The Nuremberg Trials: a Personal Memoir (1992) —— Nuremberg and Vietnam: An American Tragedy (1970) Ruti G. Teitel, Transitional Justice (2000) Ruti Teitel, Transitional Justice (2008) Tertullian, Apology (1931)

xlvi

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Ann Thomas, The Concept of Aggression in International Law (1972) Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008) Arnold J. Toynbee, Armenian Atrocities: The Murder of a Nation (1915) —— A Study of History (1947) Aron N. Trainin, Hitlerite Responsibility Under Criminal Law (1942) (Rothstein trans., 1945) Maurice Travers, Le Droit Pénal International et sa Mise en œuvre en Temps de Paix et en Temps de Guerre (1922) Trial of Major War Criminals Before the International Military Tribunal (1948) Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1948) Otto Triffterer, Dogmatische Untersuchungen zur Entwicklung des Materiellen Völkerstrafrechts seit Nurnberg (1966) Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 2d ed. 2008) Ann Tusa & John Tusa, The Nuremberg Trial (1984) Sun Tzu, The Art of War (Samuel B. Griffith trans., 1971) Verso un Tribunale Permanente Internazionale sui Crimini L’Umanita Precedenti Storici e Prospettive di Istituzione (P. Ungari & M.P. Pietrosanti Malintoppi eds., 1998) L’Union Interparliamentaire, Compte Rendu de la xxvii Conference Tenue a Rome en 1948 (1949) The U.N. and Cambodia 1991–1995 (The U.N. Blue Book Series, Volume II, 1995) United Nations Publications, Commentary on the Convention on Psychotropic Substances (1971) —— Commentary on the Single Convention on Narcotic Drugs (1961) United Nations War Crimes Commission, History of United Nations War Crimes Commission (1948) U.S. Dep’t of the Army, Field Manual 27–10: The Law of Land Warfare (1956) Rosanne Van Alebeek, The Immunities of States and Their Officials in International Criminal Law and International Human Rights Law (2008) Martin van Creveld, The Transformation of War (1991) International Criminal Law: A Collection of International and European Documents (Christine Van den Wyngaert ed., 1996) Christine Van den Wyngaert, The Political Offense Exception to Extradition: the Delicate Problem of Balancing the Rights of the Individual and the International World Public Order (1980)



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P. Van Dijk, A.W. Heringa & G.J. Van Hoof, Theory and Practice of the European Convention on Human Rights (3d ed. 1998) Comparative Legal Cultures (Csaba Varga ed., 1992) International Dimensions of Human Rights (Karel Vasak ed., 1982) Giuliano Vassalli, Formula di Radbruch e Diritto Penale [The Radbruch Formula and Criminal Law] (2001) —— La Giustizia Internazionale Penale (1995) Francisco Villagrán-Kramer, El Largo Brazo de la Justicia Penal Internacional (2001) Izidors Vizulis: The Molotov-Ribbentrop Pact of 1939: The Baltic Case (1990) Otto von Gierke, Das deutsche Genossenschaftsrecht (1913, reprinted 1954) —— National Law and the Theory of Society 1500 to 1800 (Ernest Barker trans., 1934, reprint 1957) Reflection on the Criminal Court (A.M. von Hebel et al. eds., 1999) August von Knierem, The Nuremberg Trials (1959) Hellmuth von Weber, Internationale Strafgerrichtsbarkeit (1934) Man’s Inhumanity to Man (L.C. Vorah & Michael Bohlander eds., 2002) Max Weber, Theory of Social and Economic Organization (1947) International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Joseph H.H. Weiler, Antonio Cassese & Marina Spinedi ed., 1989) Lloyd Weinreb, Natural Law and Justice (1987) H.G. Wells, The Outline of History (3d ed. 1921) Ben Whitaker, Slavery: Report of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (1984) Marjorie Millace Whiteman, Digest of International Law (1968) Marieke Wierda & Richard May, International Criminal Evidence (2002) Martin Wight, The Balance of Power and International Order, in The Bases of International Order (A. James ed., 1973) —— Diplomatic Investigations (H. Butterfield & M. Wight ed., 1968) —— International Theory: The Three Traditions (G. Wight & B. Porter eds., 1991) —— Power Politics (H. Bull & C. Hobraad eds., 1979) —— Systems of States (H. Bull ed. 1977) Henry Wigmore, A Panorama of World Legal Systems (1936) Allan M. Williams, The European Community: The Contradiction of Integration (2d ed. 1994) Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002) The United Nations and Transnational Organized Crime (Phil Williams & Ernesto U. Savona ed., 1996)

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Sharon A. Williams, The International and National Protection of Movable Cultural Property: a Comprehensive Study (1978) Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (2009) James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (1982) Westel W. Willoughby, Opium as an International Problem: the Geneva Conferences (1925) William Winthrop, Military Law and Precedents (2d ed. 1895) Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Robert Wolfe ed., 1984) C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (J. Drake trans., 1934) Karol Wolfke, Custom in Present International Law (1993) Arthur Woods, Dangerous Drugs: The World Fight Against Illicit Traffic in Narcotics (1931) British Documents on Foreign Policy, 1919–1939, Third Series (E.L. Woodward et al. eds., 1949–55) Rene A. Wormser, The Law: The Story of Lawmakers and the Law we have Lived by, from the Earliest to the Present Day (1949) Wang Xiumei, International Criminal Law (in Chinese) (2002) Oran B. Young, Governance in World Affairs (1992) Yoshiaki Yoshimi, Comfort Women (Suzanne O’Brien trans., 2002) J. K. Zawodny, Death in the Forest: The Story of the Katyn Forest Massacre (1962) Zhang Zhihui, International Criminal Law (in Chinese) (1999) Franklin E. Zimring & Gordon J. Hawkins, Crime Is Not the Problem (1997) —— Deterrence (1973) Articles The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty‑Five Years Later, 8 Temp. Int’l & Comp. L.J. 1 (1994) Kenneth W. Abbott, Oran B. Young & Anne-Marie Burley, International Law and International Relations Theory: Building Bridges, 86 Proceedings of the American Society of International Law 167 (1992) Mohamed Abdul-Aziz, International Perspective on Transfer of Prisoners and Execution of Foreign Penal Judgments, in 2 International Criminal Law 533 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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George Abi-Saab, Cours Général de Droit International Public, 207 Recueil de Cours de l’Académie de Droit International 15 (1996) Gerald Abrahams, Retribution: An Inquiry into the Possiblity of an International Criminal Law, 92 Law J. 38 (1942) Abraham Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure and Interference with Aircraft, 13 Colum. J. Transnat’l L. 381 (1974) Ronald D. Abramson & Stephen B. Huttler, Legal Response to the Illicit Movement of Cultural Property, 5 L. & Pol’y Int’l Bus. 932 (1973) Steven Ackerman, Torture and Other Forms of Cruel and Unusual Punishment in International Law, 11 Vand. J. Transnat’l L. 653 (1978) Robert Ago, Le Délit International, 68 II Recueuil des Cours de l’Académie de Droit International de La Haye 417 (1939) M. Ayo Ajomo, Hijacking or Unlawful Seizure of Aircraft, 7 Nigerian L.J. 13 (1973) Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333 (1999) Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 Am. J. Int’l L. 501 (1996) —— The Yugoslav Tribunal At Crossroads: The Dayton Peace Agreement and Beyond, 18 Hum. Rts. Q. 259 (1996) Carlos Alcorta, La Doctrina del Derecho Penal Internacional, 2 Rev. Argentina de Derecho Int’l 271 (1931) Raquel Aldana-Pindell, In vindication of Justiciable Victims’ Rights to Truth and Justice for State Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002) G. Glover Alexander, International Criminal Law, 5 J. Comp. Legis. & Int’l L. 90 (1923) —— International Criminal Law, 3 J. Comp. Legis. & Int’l L. 237 (1921) Iris Almeida, Compensation and Reparations for Gross Violations of Human Rights, 14 Nouvelles Études Pénales 399 (1998) Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009) Alexander Korthals Altes, Submarine Antiquites: A Legal Labyrinth, 4 Syracuse J. Int’l L. & Comm. 77 (1976) Jose E. Alvarez, International Organizations: Then and Now, 100 Am. J. Int’l L. 324 (2006) Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. Int’l & Comp. L. 237 (2001) Diane Marie Amann & M.N.S. Sellers, The United States of America and the Inter‑ national Criminal Court, 50 Am. J. Comp. L. (Vol. L. Supp.) 381 (2002) Bienvenido C. Ambion, Establishment of the Proposed International Criminal Court, 30 Philippine L.J. 370 (1955)

l

table of authorities

—— Organization of a Court of International Criminal Jurisdiction, 29 Phillipine L.J. 345 (1950) Kai Ambos, Article 25: Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 475 (Otto Triffterer ed., 1999) —— Individual Criminal Responsibility in International Criminal Law: A Juris‑ prudential Analysis—From Nuremberg to The Hague, in 1 Substantive and Procedural Aspects of International Criminal Law 1 (Gabrielle Kirk MacDonald & Olivia Swaak-Goldman eds., 2000) —— The Right of Non-Self-Incrimination of Witnesses Before the ICC, 15 Leiden J. Int’l L. 155 (2002) —— Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzun‑ gen, 37 Archiv des Völkerrechts 318 (1999) —— The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, J. Int’l. Crim. Just. (2010) Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 Ind. L.J. 809 (2000) Kai Ambos & Steffen Wirth, The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000, 13 Crim. L. F. 1 (2002) American Bar Association Task Force on an International Criminal Court, New York Bar Association Joint Report with Recommendations to the House of Delegates: Establishment of an International Criminal Court, 27 Int’l L. 270 (1993) —— Sierra Leone: Action Needed to End Use of Child Combatants, AI Index AFR 51/075/2000, Aug. 8, 2000 —— Abolitionist and Retentionist Countries, available at: http://www.amnesty .org/en/death-penalty/abolitionist-and-retentionist-countries Ennio Amodio & Eugenio Selvaggi, An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, 63 Temp. L. Rev. 1211 (1989) Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 950 (1966) —— The Morality of Deterrence, U. Chi. L. Rev. 649 (1970) John R. Anderson & Paul L. Woodard, Victim and Witness Assistance: New State Laws and the System’s Response, 68 Judicature 221 (1985) A. Andries, C. Van den Wyngaert, E. David, & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la repression des violations graves de droit international humanitaire, Revue de Droit Pénal et de Criminologie 1133 (1994) Kofi Annan, The Effectiveness of the International Rule of Law, in Kosovo and the Challenge of humanitarian intervention 222 (Albrecht Schnabel & Ramesh Thakur eds., 2000)



table of authorities

li

George J. Annas, Medical Remedies and Human Rights: Why Civil Rights Lawyers Must Become Involved in Medical Decision-making, 2 Hum. Rts. 151 (1972) George Antoniou & Nicoleta Iliescu, La Répression de la Capture Illicite d’Aéronefs, 47 Rev. Int’le de Droit Pénal 265 (1976) Gail Appleson, Karadzic Drops Human Rights Case Defense, Reuters News Service, Mar. 4, 1997 Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits), 81 Am. J. Int’l. L. 77 (1987) Cécile Aptel, Some Innovations in the Statute of the Special Tribunal for Lebanon, 5 J. Int’l Crim. Just. 1107 (2007) Carmen M. Argibay, Pirateria Aerea el Derecho Penal Argentino, 1969 Revista Juridica de Buenos Aires 229 (1969) Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court 93 Am. J. Int’l L. 22 (1999) Anna Asher, The Legal Regime of Erga Omnes Obligations and International Law, 46 Am. J. Int’l L. 131 (1994) Thrkkaya Ataov, Hitler and the “Armenian Question” (Monograph, Ankara University, 1992) Balthazar Ayala, Three Books on the Law of War, in Classics of International Law (James B. Scott ed., 1917) Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nations Norms on the Responsibilities of Transnational Corporations as a Har‑ binger of Corporate Social Responsibility in International Law, 37 Colum. Hum. Rts. L. Rev. 287 (2006) Peter Baehr, How to Deal with the Past, 14 Nouvelles Études Pénales 415 (1998) George Baer, Sanctions and Security: The League of Nations and the Italian-Ethiopian War, 1935–1936, 27 Int’l Org. 165 (1973) Ian W. Baldwin, Notes Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute CivilianContractor Misconduct, 94 Iowa L. Rev. 287 (2008) Jennifer L. Balint, An Empirical Study of conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Etudes Penales 101 (Christopher C. Joyner, special ed. & M. Cherif Bassiouni, general ed., 1998) —— The Place of Law in Addressing International Regime Conflicts, 59 L. & Contemp. Probs. 103 (1996) —— Conflict, Conflict Victimization, and Legal Redress, 1945–1996, 59 L. & Contemp. Probs. 231 (1996) Fernando Felipe Basch, The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and its Dangers, 23 Am. U. Int’l L. Rev. 195 (2007)

lii

table of authorities

M. Cherif Bassiouni, An Appraisal of the Growth and Developing Trends of Inter‑ national Criminal Law, 45 Rev. Int’le de Droit Pénal 405 (1974) —— Crimes Against Humanity: The Case for a Specialized Convention, 9 Wash. U. Global Stud. L. Rev. 575 (2010) —— Perspectives on International Criminal Justice, 50 Va. J. Int’l. L. 269 (2010) —— The Discipline of International Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Making of the International Criminal Court, in 3 International Criminal Law 117 (M. Cherif Bassiouni ed., 3d ed., 2008) —— The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Crimonology 711 (2008) —— International Criminal Justice in Historical Perspective, in International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Principles of Legality in International and Comparative Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values and Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008) —— An Appraisal of Human Experimentation in International Law and Practice: The Need for Regulation of Human Experimentation, 72 J. Crim. L. & Criminology 1597 (1981) —— Accountability for International Crimes and Serious Violations of Fundamen‑ tal Human Rights, 59 Law & Contemp. Probs. (M. Cherif Bassiouni, special ed., 1996) —— Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in Post-Conflict Justice 3 (M. Cherif Bassiouni ed., 2002) —— Assessing Conflict Outcomes: Accountability and Impunity, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007 5 (Giuliana Ziccardi Capaldo ed., 2008) —— Bush Missed the Mark in Making Case for War, Chi. Trib. 9 March 2003 —— Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000) —— The Commission of Experts Established Pursuant to Security Council Reso‑ lution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 1 (1994)



table of authorities

liii

—— A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Crimi‑ nality, Including the Establishment of an International Criminal Court, 15 Nova L. Rev. 353 (1991) —— Crimes Against Humanity: The Need for a Specialized Convention, 31 Col. J. Trans. L. 457 (1994) —— Crimes Against Humanity, in 1 International Criminal Law: Sources, Subjects, and Contents 437 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Critical Reflections on International and National Control of Drugs, 18 Denv. J. Int’l L. & Pol’y 11 (1990) —— Das “Vermächtnis von Nürnberg”: eine historische Bewertung fünfzig Jahre danach [Nuremburg: Historical Assessment Fifty Years Later], in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen (Gerd Hankel & Gerhard Stuby eds., 1995) —— Death as a Penalty in the Shari’a, in The Death Penalty: Condemned 65–84 (Int. Commission of Jurists, 2000) —— Discipline of International Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Draft Statute International Tribunal, 9 Nouvelles Études Pénales 1 (1993) —— Draft Statute International Criminal Tribunal (French and Spanish translations) 10 Nouvelles Études Pénales 1 (1993) —— The Duty to Prosecute and/or Extradite: Aut Dedere Aut Judicare, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 35 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal, in Human Rights: An Agenda for the Next Century 347 (Louis Henkin & John Lawrence Hargrove ed., 1994) —— Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445 (1991) —— Enslavement: Slavery, Slave-Related Practice, and Trafficking in Persons, in 1 International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Establishing an International Criminal Court: Historical Survey, 149 Mil. L. Rev. 49 (1995) —— Explanatory Note, 71 Revue Internationale de Droit Pénal 1 (2000) —— Extradition, Law and Practice of the United States, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 269 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Evolution of International Humanitarian Law and Arms Control Agreements, in A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000)

liv

table of authorities

—— From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997) —— A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) —— The Future of Human Rights in the Age of Globalization in 40 Denver J. Int’l L. & Pol’y 22 (2012). —— General Report on the Juridical Status of the Requested State Denying Extra‑ dition, in Proceedings of the Eleventh International Congress of Comparative Law, 30 Am. J. Comp. L. (1982) —— Historical Survey: 1919–1998, in The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999) —— The History of the Draft Code of Crimes Against the Peace and Security of Mankind, 27 Isr. L. Rev. 1 (1993), reprinted in Commentaries on the Interna‑ tional Law Commission’s 1991 Draft Code of Crimes Against the Peace and Secu‑ rity of Mankind, 11 Nouvelles Etudes Penales 1 (1993) —— Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235 (1993) —— Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000) —— Indagini e Procedimenti Penali Internazionali: Da Versailles a Roma, 22 La Legislazione Penale 817 (2002) —— The Institutionalization of Torture under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006) —— International Aspects of Drug Abuse: Problems and a Proposal, 9 J. Marshall J. Prac. & Proc. 3 (1975) —— International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63 (1996) —— International Crimes: The Ratione Materiae of International Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 129 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The International Criminal Court: Observations and Issues before the 1997‑98 Preparatory Committee and Administrative and Financial Implications, 13 Nouvelles Études Pénales (M. Cherif Bassiouni ed. 1997) —— International Criminal Justice in the Era of Globalization: Rising Expecta‑ tions, in 6 The Global Community: Yearbook of International Law and Jurisprudence 2005, at 3–14 (Giuliana Ziccardi Capaldo ed., 2006) —— International Criminal Justice in Historical Perspective, in 3 International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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lv

—— International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice, in The Oxford Companion to International Criminal Justice 131 (Antonio Cassese ed., 2009) —— International Law and the Holocaust, 9 Cal. W. Int’l. L.J. 201 (1979) —— International Institute of Higher Studies in Criminal Sciences, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine) 209 (M. Cherif Bassiouni ed. 1995) —— International Narcotics Control System: A Proposal, 46 St John’s L. Rev. 713 (1972) —— International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006) —— International Recognition of Victims’ Rights, in 3 International Criminal Law: International Enforcement 633 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to the Genocide Convention, in 1 International Criminal Law: Crimes (M. Cherif Bassiouni ed., 1986) —— Introduction to International Humanitarian Law, in 1 International Criminal Law: Sources, Subjects, and Contents 269 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to Proceedings of the International Conference on Extradition Held at International Institute of Higher Studies in Criminal Sciences (Siracusa), 62 Revue Internationale de Droit Penal (1991) —— Introduction to Recognition of Foreign Penal Judgments, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 511 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Introduction to Transfer of Criminal Proceedings, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 519 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Investigating International Trafficking in Women and Children for Commer‑ cial Sexual Exploitation (International Human Rights Law Institute, DePaul University College of Law, 2001) —— Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 25 Sec. Dialogue 409 (1994) —— Issues Pertaining to the Evidentiary Part of International Criminal Law, in 3 International Criminal Law: International Enforcement 579 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191 (2003) —— Les Crime relevant du prècepte de Qesas, 4 Revue Internationale de Criminologie et de Police Technique 485 (1989) —— Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002)

lvi

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—— The Making of the International Criminal Court, in 3 International Criminal Law: International Enforcement 117 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Mixed Models of International Criminal Justice, in 3 International Criminal Law: International Enforcement 155 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Modalities of International Cooperations in Penal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Need for International Accountability, in 3 International Criminal Law: International Enforcement 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L.J. 443 (1999) —— The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008) —— The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, 8 Transnat’l L. & Cont. Probs. 199 (1998) —— The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, in 1 International Criminal Law: Sources, Subjects, and Contents 493 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986) —— The “Nuremberg Legacy”: Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg 291 (Belinda Cooper ed., 1998) —— Observations Concerning the 1997–98 Preparatory Committees Work, 13 Nouvelles Études Pénales 5 (1997) —— Observations on the Structure of the (Zutphen) Consolidated Text, in 13bis Nouvelles Etudes Pénales (Leila Sadat Wexler ed. 1998) —— The Penal Characteristics of Conventional International Criminal Law, 15 Case W. Res. J. Int’l L. 27 (1983) —— Penalties and Sentences, in 3 International Criminal Law: International Enforcement 601 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga. St. U. L. Rev. 541 (2006) —— Perspectives on International Terrorism, in International Terrorism: Multilateral Conventions 1937–2001 (M. Cherif Bassiouni ed., 2001) —— Perspectives on International Terrorism, in 1 International Criminal Law: Sources, Subjects, and Contents 697 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Philosophy and Policy of International Criminal Justice, in Man’s Inhumanity to Man 63 (L.C. Vorah & Michael Bohlander eds., 2003)



table of authorities

lvii

—— Policy Considerations on Inter-State Cooperation in Criminal Matters, in Principles and Procedures for a New Transnational Criminal Law 807 (Albin Eser & Otto Lagodny ed., 1992) —— Policy Perspectives Favoring the Establishment of the International Criminal Court, 52 Colum. J. Int’l Aff. 795 (1999) —— The “Political Offense Exception” Revisited: Extradition Between the U.S. and the U.K. A Choice Between Friendly Cooperation Among Allies and Sound Law and Policy, 15 Denv. J. Int’l L. & Pol’y 255 (1987) —— Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int’l L.J. 327 (2005) —— Post-war Justice, Justifying War, Chi. Trib. Mar. 30, 2003 —— Principles of Legality in International and Comparative Criminal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Privilege Against Self-Incrimination: A Historical Analysis and Contem‑ porary Appraisal, in Law In The United States of American and in Social and Technological Revolution (John N. Hazard & Wenceslas J. Wagner eds., 1974) —— The Problems with the Team Around Bush, Chi. Trib., January 5, 2003, Sec. 2 —— Proposed Guiding Principles for Combating Impunity for International Crimes, in Post-Conflict Justice 255 (M. Cherif Bassiouni ed., 2002) —— The Proscribing Function of International Criminal Law in the Process of Inter‑ national Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982) —— Protection of Diplomats Under Islamic Law, 74 Am. J. Int’l L. 609 (1980) —— Qesas Crimes, in Islamic Criminal Justice System 203 (M. Cherif Bassiouni ed., 1982) —— Ratification and National Implementing Legislation, 71 Revue Internationale De Droit Pénal 41–81 (M. Cherif Bassiouni ed., 2000) —— Recent United Nations Activities in Connection with the Establishment of a Permanent International Criminal Court and the Role of the Association Inter‑ national de Droit Pénal and the Instituto Superiore Internazionale di Scienze Criminali, 67 Rev. Int’le de Droit Penal 127 (1996) —— Reflections on Criminal Jurisdiction in International Protection of Cultural Property, 10 Syracuse J. Int’l L. & Comm. 281 (1983) —— The Regulation, Control, and Prohibition of the Use of Certain Weapons in the Context of War, in 1 International Criminal Law: Sources, Subjects, and Contents 377 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Repression of Breaches of the Geneva Conventions Under the Draft Additional Protocol to the Geneva Conventions of August 12, 1949, 8 Rutgers-Cam. L.J. 185 (1977) —— Rumors of War: Waving a Big Stick, Chi. Trib., November 10, 2002

lviii

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—— Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000) —— Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996) —— Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University) —— States of Emergency and States of Exception: Human Rights Abuses and Impunity Under Color of Law, in Non-Derogable Rights and States of Emergency 125 (Daniel Prémont ed., 1996) —— The Subjects of International Law: Ratione Personae, in 1 International Criminal Law: Sources, Subjects, and Contents 41 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values & Violence: Intangible Acts of Terrorism 233 (Ibrahim A. Karawan, Wayne McCormack & Stephen E. Reynolds eds., 2008) —— Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299 (2004) —— The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991) —— The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784 (1994) —— United States Policies and Practices on the Execution of Foreign Penal Sen‑ tences, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 555 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001) —— Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 153 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Universal Jurisdiction Unrevisited: The International Court of Justice Decision, in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 12 Palestine Y.B. Int’l L. 27 (2002–03). —— Universal Jurisdiction; Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001) —— Work Paper on International Control of Drugs, Abidjan World Peace Through Law Conferences (26–31 August 1973) —— World Public Order and Extradition: A Conceptual Evaluation, in Aktuelle Probleme des Internationalen Strafrechts 10 (D. Oehler & P.G. Potz eds., 1970)



table of authorities

lix

—— World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002) M. Cherif Bassiouni & Gamal Badr, The Shari’ah: Sources, Interpretation and RuleMaking, 1 UCLA J. Islamic & Near Eastern L. 135 (2002) M. Cherif Bassiouni, Thomas G. Baffes & John T. Evrard, Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J. Crim. L. 1597 (1981) M. Cherif Bassiouni & Christopher Blakesley, The Need for an International Crimi‑ nal Court in the New International World Order, 25 Vand. J. Transnat’l L. 151 (1992) M. Cherif Bassiouni & Daniel Derby, An Appraisal of Torture in International Law and Practice: The Need for an International Convention for the Prevention and Suppression of Torture, 48 Rev. Int’le de Droit Pénal 17 (1977) M. Cherif Bassiouni & Daniel Derby, Final Report on the Establishment of an Inter‑ national Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments, 9 Hofstra L. Rev. 52 (1981) M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggres‑ sion: From its Origins to the ICC, in 1 International Criminal Law: Sources, Subjects, and Contents 207 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) M. Cherif Bassiouni & Marcia McCormick, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University) M. Cherif Bassiouni & Daniel Rothenberg, An Assessment of Justice Sector and Rule of Law Reform in Afghanistan and the Need for a Comprehensive Plan (ISISC) Winfried Baumgart, Zür Ansprache Hitler’s vor den Führen der Wehrmacht am 22 August 1939 : Eine Ouellenkritische Untersuchung, Vierteljahrshefte Für Zeitgeschichte 120 (1968) Richard R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, in 1, 2 A Treatise on International Criminal Law 65 (M. Cherif bassiouni & Ved P. Nanda eds., 1973) Richard R. Baxter & Thomas Buergenthal, Legal Aspects of the Geneva Protocol of 1925, 64 Am. J. Int’l L. 853 (1970) Sara Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1481 (2009) Steven W. Becker, Cave Janus: Increased Cooperation Between Law Enforcement and Intelligence Agencies After September 11, 2001, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 71 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Siegfried Beer, Aspekte der britischen Militärgerichtsbarkeit, in Keine “Abrechnung”: NS-Verbrechen, Justiz und Gesellschaft in Europa nach 1945 (Claudia Kuretsidis-Haider and Winfried R. Garscha, eds., 1998)

lx

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Hans-Jörg Behrens, The Trial Proceedings, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 238 (Roy S. Lee ed., 1999) Hans-Jörg Behrens & Donald K. Piragoff, Article 69: Evidence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 889 (Otto Triffterer ed., 1999) Beirut Protestors Denounce Syria, BBC News, Feb. 21, 2005 Mark R. Beissinger, The Party and the Rule of Law, 28 Colum. J. Transnat’l L. 41 (1989) Olympia Bekou, Rule 11BIS:An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence, 33 Fordham Int’l L. J. 723 (2010) A.D. Belinfante, Les Principes de Droit Pénal International et les Conventions Inter‑ nationales, 2 Nederlands Tijdschrift voor Internationaal Recht 243 (1955) Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Confer‑ ence, 5 Global Governance 1 (Jan.–Mar. 1999) Paolo Benvenuti, La Clausola Martens e la Tradizione Classica del Diritto Naturale nella Codificazione del Diritto dei Conflitti Armati, Scritti degli allievi in memoria di Giuseppe Barile 173 (1993) Lynn Berat & Yossi Shain, Retribution or Truth-telling in South Africa? Legacies of the Transitional Phase, 20 L. & Soc. Inquiry 1 (1995) Paul Schiff Berenau, The Globalized Jurisdiction, 151 U. Penn. L. Rev. 311 (2002) Louis Rene Beres, Genocide and Genocide-Like Crimes, in 1 International Criminal Law: Crimes 271 (M. Cherif Bassiouni ed., 1986) Morten Bergsmo & Jelena Pejić, Article 15: Prosecutor, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 359 (Otto Triffterer ed., 1999) —— Article 16: Deferral of investigation or prosecution, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 373 (Otto Triffterer ed., 1999) Morten Bergsmo & Frederik Harhoff, Article 42: The Office of the Prosecutor, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 627 (Otto Triffterer ed., 1999) Morton Bergsmo & Pieter Kruger, Article 53: Initiation of an investigation, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 701 (Otto Triffterer ed., 1999) —— Article 54: Duties and powers of the Prosecutor with respect to investiga‑ tions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 715 (Otto Triffterer ed., 1999)



table of authorities

lxi

Antonio Beristain, Las Drogas y su Leislacion en España, 1973 Anuario de Derecho Penal y Ciencias Penales 41 (1973) Nadia Bernaz and Remy Prouveze, International and Domestic Prosecutions, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 269 (2 vols., M. Cherif Bassiouni ed., 2010) Wendy S. Betts, Scott N. Carlson & Gregory Grisvold, The Post-Conflict Transi‑ tional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l L. 371 (2001) Charles I. Bevans, International Conventions in the Field of Narcotic Drugs, 37 Temp. L.Q. 41 (1963) Fiona Beveridge, The Lockerbie Affair, 41 Int’l & Comp. L.Q. 907 (1992) Steve Beytenbrod, Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-State Actors, 36 Brookly J. Int’l L. 647 (2011) Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 249 (1999) —— Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int’l L. 491 (2008) Christopher L. Blakesley, Comparing the Ad-Hoc Tribunal for Crimes Against Humanitarian Law in the Former Yugoslavia and the Project for an International Criminal Court: An Appraisal, 67 Rev. Int’le de Droit Pénal 139 (1996) —— Extraterritorial Jurisdiction, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Obstacles to the Creation of a Permanent War Crimes Tribunal, 18 Fletcher Forum World Aff. 77 (1992) Stephanos Bibas & William W. Burke-White, International Idealism Meets Domestic-Criminal-Procedure Realism, 59 Duke L.J. 637, 694 (2010) Jeffrey L. Bleich, Complementarity, 13 Nouvelles Etudes Pénales 231 (1997) Neils Blokker & Claus Kress, A Consensus Agreement on the Crime of Aggression, 12 Leiden J. Int’l L. 889, 893 (2010) Matthew Bloom, A Comparative Analysis of the United States’ Response to Extradi‑ tion Requests From China, 33 Yale J. Int’l L. 177 (2008) Juan Pablo Bohoslavsky and Veerle Opgenhaffer, The Past and Present of Corpo‑ rate Complicity: Financing the Argentine Dictatorship, 23 Harv. Hum. Rts. J. 157 (2010) Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, in Post-Conflict Justice 345 (M. Cherif Bassiouni ed., 2002) —— The International Criminal Tribual for Rwanda, in Post-Conflict Justice 487 (M. Cherif Bassiouni ed., 2002)

lxii

table of authorities

Roman Boed, The International Criminal Tribunal for Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1 (2002) Michael Bohlander, The General Part : Judicial Developments, in 3 International Criminal Law: International Enforcement 515 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Ne Bis in Idem, in 3 International Criminal Law: International Enforcement 539 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11bis and the Consequences for the Law of Extradition, 55 Int’l & Comp. L. Q. 219 (2006) John Bolton, The Global Prosecutors: Hunting War Criminals in the Name of Uto‑ pia, Foreign Aff. (Jan/Feb 1999) Adriaan Bos, The Identification of Custom in International Law, 25 Ger. Y.B. Int’l L. 9 (1982) Giorgio Bosco, Verso l’istituzione di una Corte Penale Internazionale, 250 Rivista di Studi Politici Internazionali 223 (1998) Henri D. Bosly, Actualite du Tribunal International Penal, 1–2 Annales de Droit de Louvain 3 (1995) Frédéric Bostedt & Joakim Dungel, The International Criminal Tribunal for the Former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law, 7 Chinese J. Int’l L. 389 (2008) Nancy Zucker Boswell, Combating Corruption: Focus on Latin America, 3 Sw. J. L. & Trade Am. 179 (1996) Pierre Bouzat, Introduction, 52 Revue Internationale de Droit Pénal 331 (1984) Owen Bowcott, Africans call for slavery reparations, Guardian Unlimited (Jun. 29, 2001) ——, Charles Taylor sentenced to 50 years in prison for war crimes, Guardian, May 30, 2012. Greg Brabec, The Fight For Transparency: International Pressure to Make Swiss Banking Procedures Less Restrictive, 21 Temp. Int’l & Comp. L.J. 231 (2007) Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 816 (1997) —— Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129 (1999) Helen Brady, Appeal and Revision, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 575 (Roy S. Lee ed., 2001)



table of authorities

lxiii

—— Disclosure of Evidence, in The ICC: Elements of Crimes and Rules of Procedure and Evidence 403 (Roy Lee ed. 2001) Helen Brady & Mark Jennings, Appeal and Revision, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 294 (Roy S. Lee ed., 1999) James T. Brand, Crimes Against Humanity and the Nürnberg Trials, 28 Or. L. Rev. 93 (1949) Stephan Breitenmoser, et al., Human Rights v. Extradition: The Soering Case, 11 Mich. J. Int’l L. 845 (1990) Bruce Broomhall, Looking Forward to the Establishment of an International Crimi‑ nal Court: Between State Consent and the Rule of Law, 8 Crim. L.F. 317 (1997) —— Article 51: Rules of Procedure and Evidence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 679 (Otto Triffterer ed., 1999) Bartram S. Brown, The International Criminal Tribunal for the Former Yugoslavia, in 3 International Criminal Law: International Enforcement 69 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855 (1999) Marcel Brus, Bridging the Gap Between State Sovereignty and International Gov‑ ernments: The Authority of Law, in State Sovereignty and International Governance 3 (Gerard Kreijen et al. eds., 2002) Aaron J. Buckley, The Conflict in Cambodia and Post-Conflict Justice, in PostConflict Justice 637 (M. Cherif Bassiouni ed., 2002) Pamela H. Bucy, Corporate Criminal Liability: When Does It Make Sense?, 46 Am. Crim. L. Rev. 1437 (2009) Roman Boed, The International Criminal Tribunal in Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Marianne Holdgaard Bukh, Prosecution Before Danish Courts of Foreigners Sus‑ pected of Serious Violations of Human Rights or Humanitarian Law, 6 Eur. Rev. Pub. L. 339 (1994) Hedley Bull, The Importance of Grotius in the Study of International Relations, in Hugo Grotius and International Relations 65 (H. Bull, B. Kingsbury & A. Roberts eds. 1990) —— The Grotian Conception of International Society, in Diplomatic Investigations (H. Butterfield & M. Wight ed. 1968) —— Martin Wight and the Theory of International Relations, 2 Brit. J. Int’l Stud. 101 (1976) Peter Bums, An International Criminal Tribunal: The Difficult Union of Principles and Politics, 5 Crim L.F. 341 (1994) H. James Burgwyn, General Roatta’s war against the partisans in Yugoslavia: 1942, 9

lxiv

table of authorities

J. Modern Italian Stud. 314 (2004) William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008) John F. Burns and Kirk Semple, Hussein is Sentenced to Death by Hanging, N.Y. Times, Nov. 6, 2006 Jose A. Cabranes, International Law and Control of the Drug Traffic, 7 Int’l L. 761 (1973) Jean-Christian Cady & Nicholad Booth, Internationalized Courts in Kosovo: An UNMIK Perspective, in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia 59 (Cesare P.R. Romana et al. eds., 2004) Giuliana Ziccardi Capaldo, Global Law and Politics: A Legal Approach to Political Changes, in 1 The Global Community: Yearbook of International Law and Jurisprudence 2007 5 (Giuliana Ziccardi Capaldo ed., 2008) Giuliana Ziccardi Capaldo & Michele Nino, Globalization of International Law Enforcement Mechanisms : Issues of Legality and Legitimacy, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 47 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christian M. Capece, The Ottawa Treaty and its Impact on U.S. Military Policy and Planning, 25 Brooklyn J. Int’l L. 183 (1999) Tessa V. Capeloto, Reconciliation in the Wake of Tragedy: Cambodia’s Extraor‑ dinary Chambers Undermines the Cambodian Constitution, 17 Pac. Rim L. & Pol’y J. 103 (2008) Steven M. Caplan, The Applicability of the Exclusionary Rule in Federal Court to Evidence Seized and Confessions Obtained in Foreign Countries, 16 Col. J. Transnat’l L. 495 (1977) Burris M. Carnahan, The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons, 105 Mil. L. Rev. 73 (1984) Douglas Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 L. & Contemp. Probs. 197 (1996) Antonio Cassese, On the Use of Criminal Law Notions in Determining State Respon‑ sibility for Genocide, 5 J. Int’l Crim. Just. 875 (2007) —— Anthology: Eichmann: Is Evil So Banal?, 7 J. Int’l. Crim. Just. 645 (2009) Mauro Catenacci, Nullum Crimen Sine Lege, in The International Criminal Court: Comments on the Draft Statute 159 (Flavia Lattanzi ed., 1998) Joel Cavicchia, The Prospects for an International Criminal Court in the 1990s, 10 Dick. J. Int’l L. 223 (1992) Adolfo Ceretti, Collective Violence and International Crimes, in The Oxford Companion to International Criminal Justice 1 (2009)



table of authorities

lxv

Chad confirms former president Habre’s conviction, Agence France Presse, Aug. 19, 2008 Charles Taylor war crimes trial resumes with blood diamond expert’s testimony, The Assoc’d Press, Jan. 7, 2008 Charles Taylor Trial, The Economist, Jan. 9, 2008 Johnathan I. Charney, Universal International Law, 87 Amer. J. Int’l’L 529 (1993) Alejandro Chehtman, Developing Bosnia and Herzegovina’s Capacity to Process War Crimes, 9 J. Int’l. Crim. Justice 547 (2011) Trevor Pascal Chimimba, Establishing an Enforcement Regime, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 345 (Roy S. Lee ed., 1999) Christine Chinkin, The Protection of Victims and Witnesses, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Courts Vol. I, 455 (G.K. MCDonald & O. Swaak-Goldman eds. 2000) Christine M. Chinkin, United Kingdom House of Lords, (Spanish Request for Extradition): Regina v. Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 93 Am. J. Int’l L. 703 (1999) Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to Interna‑ tional Society, 28 Va. J. Int’l L. 585 (1988) George Christenson, The World Court and Jus Cogens, 81 Am. J. Int’l L. (1987) Demostenes Chryssikos, Commentary on the United Nations Draft Model Law on Extradition, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 377 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Commentary on the United Nations Draft Model Law on Mutual Assistance in Criminal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 405 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christine H. Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. J. Int’l Hum. Rts. 459 (2008) Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporate and Armed Opposition Groups, 6 J. Int’l. Crim. Just. 899 (2008) —— Non-State Actors, in Post-Conflict Peacebuilding: A Lexcion 200 (Vincent Chetail, ed., 2009) Jennifer J. Clark, Zero to Life: Sentencing Appeals at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 96 Geo. L.J. 1685 (2008) Roger S. Clark, Apartheid, in 1 International Criminal Law: Sources, Subjects, and Contents 599 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Article 106: Supervision of enforcement of sentences and conditions of impris‑ onment, in Commentary on the Rome Statute of the International

lxvi

table of authorities

Criminal Court: Observer’s Notes, Article by Article 1177 (Otto Triffterer ed., 1999) —— Article 121: Amendments, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1265 (Otto Triffterer ed., 1999) —— Article 122: Amendments to provisions of an institutional nature, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1273 (Otto Triffterer ed., 1999) —— Article 126: Entry into force, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1289 (Otto Triffterer ed., 1999) —— The Crime of Aggression and the International Criminal Court, in 1 International Criminal Law: Sources, Subjects, and Contents 243 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 Crim. L.F. 291 (2001) —— Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 Nordic J. Int’l L. 49 (1988) Roger S. Clark & Otto Triffterer, Exclusion of Jurisdiction over Persons under Eighteen, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 493 (2d ed., 2008) Kathleen Claussen, Up To The Bar? Designing the Hybrid Khmer Rouge Tribunal in Cambodia, 33 Yale J. Int’l L. 253 (2008) David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l L. 1 (2007) —— Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (Aug. 2003) Roger Cohen, Taming the Bullies of Bosnia, N.Y. Times Mag., Dec. 17, 1995 Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past, 20 L. & Soc. Inquiry 7 (1995) James R. Coker, The Status of Visiting Military Forces in Europe: NATO-SOFA, A Comparison, in 2 A Treatise on International Criminal Law 115 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Mary Colley, Effect of Efforts to Control Illicit Art Traffic on Legitimate Interna‑ tional Commerce in Art, 8 Ga. J. Int’l & Comp. L. 462 (1978) Nancy Amoury Combs, Plea Bargains in International Criminal Prosecutions, in 3 International Criminal Law: International Enforcement 559 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



table of authorities

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Comment, Draft International Counterfeiting Code: Neorealism as a Vehicle for Analyzing the Effect of Nonsignatories’ Perceptions on the Development of an Anti-Counterfeiting Norm, 15 Vand. J. Transnat’l L. 803 (1982) Comment, The Genocide Convention Revisited: A New Case for Ratification, 2 B.U. Int’l L.J. 241 (1983) Comment, The Right to Financial Privacy Versus Computerized Law Enforcement: A New Fight in an Old Battle, 86 Nw. U. L. Rev. 1169 (1992) Comment, Toward an International System of Drug Control, 8 U. Mich. J. L. Ref. 103 (1974) Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Etudes Penales (M. Cherif Bassiouni ed. 1993) Luigi Condorelli, Consuetudine Internazionale, Digest 3 (1988) Conception et Principes du Droit Pénal Économique et des Affaires y Compris la Protection du Consommateur, 54 RIDP 17-865 (1983) Constitution et Procdure d’un Tribunal Appropripour Juger de la Responsabilité des Auteurs des Crimes de Guerre, Present a la Conference Preliminaire de Paix par la Commission de Responsabilites des Auteurs de la Guerre et Sanctions, 111 La Paix de Versailles (1930) Antonio Converti, The Rights of the Accused, in The International Criminal Court: Comments on the Draft Statute 219 (Flavia Lattanzi ed., 1998) Asrid Reisingger Coracini, The International Criminal Court’s Exercise of Jurisdic‑ tion Over the Crime of Aggression—at Last . . . in Reach . . . Over Some, 2 Goettingen J. Int’l L. 745 (2010) Declan Costello, International Terrorism and the Development of the Principle Aut Dedere Aut Judicare, 10 J. Int’l L. et Econ. 483 (1975) Court Advances Extradition of Fujimori, Chi. Trib., May 31, 2002 Court of Bosnia and Herzegovina, Verdicts of Section I, available at: http://www .sudbih.gov.ba/?opcija=sve_presude&odjel=1&jezik=e Cover-Up and Denial of Genocide: Australia, the USA, East Timor, and the Aborigi‑ nes, 34 Critical Asian Studies 2, 163 (2002) William B. Cowles, Trials of War Criminals (non-Nuremberg), 42 Am. J. Int’l L. 299 (1948) David Crane, Special Court for Sierra Leone, in 3 International Criminal Law: International Enforcement 195 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) James Crawford, Prospects for an International Criminal Court, 48 Current Legal Probs. 300 (1995) —— The ILCs Draft Statute for an International Criminal Tribunal, 88 Am J. Int’l L. 140 (1940) La Création d’une Jurisdiction Pénale Internationale et la Coopération Internation‑ ale en Matière Pénale, 45 Rev. Int’le de Droit Penal 435 (1974)

lxviii

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The Criminal Justice Systems Facing the Challenge of Organized Crime: Prepara‑ tory for the XVIth International Congress of Penal Law, 67 Revue Internationale de Droit Pénal 417 (1996) The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic I, General Part, 68 Revue Internationale de Droit Pénal 479 (1997) The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic III, Procedural Part, 69 Revue Internationale de Droit Pénal (1998) The Criminal Justice Systems Facing the Challenge of Organized Crime: XVIth International Congress of Penal Law, Resolutions, 70 Revue Internationale de Droit Pénal 749 (1999) Criminalité d’Affaires, 53 RIDP 21–523 (1982) John R. Crook, The U.N. Compensation Commission—A New Structure to Enforce State Responsibility, 87 Am. J. Int’l L. 205 (1993) Barbara Crossette, A tortuous road to nation-building, Int’l Herald Trib. Mar. 20, 2008 Robert Cryer, The Doctrinal Foundations of International Criminalization, in 1 International Criminal Law : Sources, Subjects, and Contents 107 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Wynne Cougill, 2007 Annual Report, Documentation Center Cambodia 1 (2007) Vahakn N. Dadrian, Documentation of the Armenian Genocide in Turkish Sources, in 2 Genocide: A Critical Bibliographic Review 86 (Israel W. Charney ed., 1991) —— Genocide as a Problem of National and International Law: The World War I rmenian Case and its Contemporary Legal Ramifications, 14 Am. J. Int’l L. 127 (1989) European Union Rule of Law Mission in Kosovo, Special Prosecution Office Statistical Booklet (28 June 2011) Jose Luis Guzman Dalbora, The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face, 10 Int’l. Crim. L. Rev. 535 (2010) Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982) —— It’s a Bird, it’s a Plane, it’s Jus Cogens!, 6 Conn. J. Int’l L. 1 (1990) —— National Prosecution for International Crimes, in 3 International Criminal Law: International Enforcement 285 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Mirjan Damaska, Problematic Features of International Criminal Procedure, in The Oxford Companion to International Criminal Justice 176 (Antonio Cassese ed. 2009) Yael Danieli, Justice and Reparations: Steps in the Healing Process, 14 Nouvelles Études Pénales 303 (1998) Allison Marston Danner, Joint Criminal Enterprise, in 3 International Criminal Law: International Enforcement 483 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



table of authorities

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—— Allison Marston Danner & Jenny S. Martinez, Guilty Associations : Joint Criminal Enterprise, Command Responsibility, and the Developlement of Inter‑ national Criminal Law, 93 Cal. L. Rev. 75 (2005) P. d’Argent, la loi du 10 février 1999 relative à la répression des violations graves de droit international humanitaire, Journal des Tribunaux 549 (1999) Jean Y. Dautricourt, The Concept of International Criminal Court Jurisdiction‑ Definition and Limitations of the Subject, in 1 A Treatise on International Criminal Court 636 (M. Cherif Bassiouni & V. P. Nanda eds., 1973) —— Le Droit International Pénal, 37 Rev. de Droit Pénal et de Criminologie 243 (1957) Éric David, La loi belge sur les crimes de droit international humanitaire, 668 RBDI (1995) —— The Belgian Experience, in 3 International Criminal Law: International Enforcement 359 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) ——, The Belgian Experience, in 3 International Criminal Law 359 (M. Cherif Bassiouni, ed., 3d ed. 2008) K.E. Dawkins, Crimes (Internationally Protected Persons and Hostages) Act 1980, 9 N.Z. U. L. Rev. 399 (1981) István Deák, Postworld War II Political Justice in a Historical Perspective, 149 Mil. L. Rev. 137 (1995) Sylvia de Bertodano, Current Developments in Internationalized Courts, 1 J. Int’l Crim. Just. 226 (April 2003) —— Problems Arising from the Mixed Composition and Structure of the Cambo‑ dian Extraordinary Chambers, 4 J. Int’l Crim. Just. 285 (2006) Chris Decherd, Cambodia’s King Signs Law Paving the Way for Tribunal to Put Khmer Rouge on Trial, AP, Aug. 10, 2001 John Decker, A Critique of the Draft International Criminal Code, 52 Revue Internationale de Droit Pénal 365 (1984) Michael DeFeo, Hostage Taking and Kidnapping as Forms of Terror Violence, in 1 International Criminal Law: Sources, Subjects, and Contents 751 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Régis de Gouttes, Vers un Espace Judiciare Pénal Pan-Européen?, 22 Recueil Dalloz Sirey 154 (1991) —— Variations sur L’Espace Judiciare Pénal Européen, 33 Recueil Dalloz Sirey 245 (1990) Silvia A. Fernández de Gurmendi, The Role of the International Prosecutor, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 175 (Roy S. Lee ed., 1999) Margaret McAuliffe de Guzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22 Hum. Rts. Q. 335 (2000) —— Article 21: Applicable Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (Otto Triffterer ed., 1999)

lxx

table of authorities

André de Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibil‑ ity, The Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 British Yearbook of International Law 255 (2002) Albert de La Pradelle, Une Revolution in le Droit Pénal International, 13 Nouvelle Rev. de Droit Int’l Privé 360 (1946) Daniel H. Derby, An International Criminal Court for the Future, 5 Transnat’l L. & Cont. Probs. 307 (1995) —— The International Prohibition of Torture, in 1 International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— A Framework for International Criminal Law, in 1 International Criminal Law: Crimes 33 (M. Cherif Bassiouni ed., 1986) Raghida Dergham, Daniel Bellemare in a Race with the Culprits, Dar al hayat, Apr. 4, 2008 Hamilton DeSaussure, Laws of Air Warfare: Are There Any? 12 A.F. L. Rev. 242 (1970) Jules Deschênes, Article 38: The Presidency, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 611 (Otto Triffterer ed., 1999) —— Article 40: Independence of the judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 619 (Otto Triffterer ed., 1999) —— Article 41: Excusing and disqualification of judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 625 (Otto Triffterer ed., 1999) Desi Bouterse, 20 November 2000, in 12 Yearbook of Int’l Humanitarian L. 677 (2010) Emmerick de Vattel, Le Droit des Gens, (The Law of Nations), bk II, in Classics of International Law (Charles G. Fenwick, trad. 1916) Franciscus de Vitoria, De Indis et de Jure Belli, in Classics of International Law (James B. Scott ed., 1917) Laura A. Dickinson, The ICTY at Ten: A Critical Assessment of the Major rulings of the International Criminal Tribunal Over the Past Decade: The Relationship between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003) —— Mercenarism and Private Military Contractors, in 1 International Criminal Law: Sources, Subjects, and Contents 355 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003)



table of authorities

lxxi

Differences on the Composition of a Special Tribunal for Burundi, Hirondelle News Agency, Nov. 26, 2007 Yoram Dinstein, International Criminal Law, 5 Isr. Y.B. Hum. Rts. 55 (1975) —— Criminal Jurisdiction Over Aircraft Hijacking, 7 Isr. L. Rev. 195 (1972) —— Human Rights in Armed Conflict: International Humanitarian Law, reprinted in 2 Theodor Meron, Human Rights in International Law 356 (1984) Rodney Dixon & Helen Duffy, Article 72: Protection of national security informa‑ tion, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 937 (Otto Triffterer ed., 1999) Rodney Dixon, Crimes Against Humanity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 937 (Otto Triffterer ed., 1999) —— Article 7: Introduction/General Remarks, in Otto Triffterer, Commentary on The Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 123 (2d. ed., 2008) Katherine L. Doherty & Timothy L.H. McCormack, “Complementarity” as a Cata‑ lyst for Comprehensive Domestic Penal Legislation, 5 U.C. Davis J. Int’l L. & Pol’y 147 (1999) David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. Rev. 1623 (1992) Nicholas R. Doman, Aftermath of Nuremberg—The Trial of Klaus Barbie, 60 Colo. L. Rev. 449 (1989) Susan Dominus, Their Day in Court, N.Y. Times Mag., Mar. 30, 2003 David Donat-Cattin, Article 68: Protection of the victims and witnesses and their participation in the proceedings, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 869 (Otto Triffterer ed., 1999) —— Article 75: Reparations to victims, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 965 (Otto Triffterer ed., 1999) —— Crimes Against Humanity, in The International Criminal Court: Comments on the Draft Statute 49 (Flavia Lattanzi ed., 1998) Henri F. Donnedieu de Vabres, La Codification du Droit Pénal International, 19 Rev. Int’le de Droit Pénal 21 (1948) —— Le Procès de Nuremberg devant les principes modernes du droit pénal Inter‑ national, 70 Recueil Des Cours De L’Académie De La Haye 481 (1947) —— Le jugement de Nuremberg et le principe de legalité des delits et des peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947) —— Le Procès de Nuremberg et le Principe de le Legalitè et des Peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947) —— La répression du génocide, in Recueil Dalloz (1948) —— La Répression Internationale des Délits du Droit des Gens, 2 Nouvelle Rev. de Droit Int’l Privé 7 (1935)

lxxii

table of authorities

Draft Convention for the Prevention and Suppression of Torture, 48 Rev. Int’le de Droit Pénal 262 (1977) Draft Statute for an International Commission of Criminal Inquiry and a Draft Stat‑ ute for an International Criminal Court, in Report of the 60th Conference of the International Law Association (1983) Draft Statute for an International Criminal Court, Work Paper, Abidjan World Conference on World Peace Through Law, Aug. 26 (1973) Draft Statute for an International Criminal Court, Foundation for the Establishment of an International Criminal Court (Wingspread Conference, Sept. 1971) Gerald I.A.D. Draper, Human Rights and the Law of War, 12 Va. J. Int’l L. 326 (1972) Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, N.Y.U. L. Rev. (2000) —— Immunities and Exceptions, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 231 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Will Dunham, Wars Don’t Fuel African HIV Crisis—Study, Reuters, June 28, 2007 Ben J. Dunn, Trial of War Criminals, 19 Aust. L.J. 359 (1946) Pierre-Marie Dupuy, Observations sur le crime international de l’Etat, 84 Rev. Générale de Droit Int’le Public 449 (1980) L.H. Dupriez, Répression Internationale du Faux Monnayage, 10 Rev. de Droit Int’le et de Législation Comparée 511 (1929) Henry W. Edgerton, Corporate Criminal Responsibility, 36 Yale L.J. 827 (1927) Editorial, Sell Diamonds for Love, Not War, Chi. Trib, Dec. 15, 2001, at Z6 Hans Ehard, The Nuremberg Trial against the Major War Criminals and Interna‑ tional Law, 43 Am. J. Int’l L. 223 (1949) Andreas Eichmüller, Die Strafverfolgung von NS-Verbrechen durch westdeutsche Justizbehörden seit 1945: Eine Zahlenbilanz, 56 Vierteljahreshefte für Zeitgeschichte 621 (2008) Mark S. Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building, 15 Fla. J. Int’l L. 151 (2002) Moustafa I. El-Kayal, Comparative Study of Narcotics and the Law in the United Arab Republic and the United States, 20 DePaul L. Rev. 859 (1971) Richard John Erickson, Protocol I: A Merging of the Hague et Geneva Law of Armed Conflict, 19 Va. J. Int’l L. 557 (1979) Albin Eser, Article 31: Grounds for excluding criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 537 (Otto Triffterer ed., 1999) —— Commentary: The Need for a General Part, 11 Nouvelles Etudes Pénales 43 (M. Cherif Bassiouni ed., 1993)



table of authorities

lxxiii

Craig Etcheson, Accountability Beckons During a Year of Worries for the Khmer Rouge Leadership, 6 ILSA J. Int’l & Comp. L. 507 (2000) —— A “Fair and Public Trial”: A Political History of the Extraordinary Chambers, in Just. Initiative, 7 (Open Society Justice Initiative, 2006) European Union endorses compensation for racism and slavery, SABCNews.com, March 20, 2001 Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 Am. J. Int’l L. 695 (1969) —— Aircraft Hijacking in the United States Law and Practice, 47 Rev. Int’le de Droit Pénal 44 (1976) —— Aircraft Hijacking: What is Being Done? in International Terrorism and Political Crimes 219 (M. Cherif Bassiouni ed., 1975) Malcolm D. Evans, International Wrongs and National Jurisdiction, in Remedies in International Law 173 (1998) Tony Evans & Peter Wilson, Regime Theory and the English School of International Relations: A Comparison, 21 Millennium: Journal of Int’l Studies 329 (1992) Timothy C. Evered, An International Criminal Court: Recent Proposals and Ameri‑ can Concerns, 6 Pace Int’l L. Rev. 121 (1994) Extradited Fujimori Back in Peru, BBC Sept. 22, 2007 Ramiro Garcia Falconi, The Codification of Crimes Against Humanity in the Domes‑ tic Legislation of Latin American States, 10 Int’l. Crim. L. Rev. 453 (2010) Richard A. Falk, The Interplay of Westphalia and Charter Conceptions of Interna‑ tional Legal Order, in International Law: A Contemporary Perspective 116 (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) —— A New Paradigm for International Legal Studies: Prospects and Proposals, in International Law: A Contemporary Perspective 651 (R. Falk, F. Kratochwil & S. Mendovitz eds. 1985) Richard A. Falk & Quincy Wright, On Legal Tests of Aggressive War, 66 Am. J. Int’l L. 560 (1972) Douglas Farah, Al Qaeda Cash Tied to Diamond Trade; Sale of Gems From Sierra Leone Rebels Raised Millions, Sources Say, Wash. Post, Nov. 2, 2001 Tom J. Farer, Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict,” 71 Colum. L. Rev. 37 (1971) Shneur-Zalman Feller, Jurisdiction over Offenses with a Foreign Element, in 1, 2 A Treatise on International Criminal Law 5 (M. Cherif bassiouni & Ved P. Nanda eds., 1973) William J. Fenrick, Article 28: Responsibility of commanders and other superiors, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 515 (Otto Triffterer ed., 1999) Ward Ferdinandusse, The Dutch Experience, in 3 International Criminal Law: International Enforcement 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)

lxxiv

table of authorities

Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int’l L. Rev. 201 (1997) —— An International Criminal Code and Court: Where They Stand and Where They’re Going, 30 Colum. Transnat’l L. 375 (1992) —— Misguided Fears About the International Criminal Court, 15 Pace Int’l L. Rev. 1 (2003) —— Nurnberg Trial Procedure and the Rights of the Accused, XXXIX J. Crim. L. & Criminology No. 2 (1948) —— The Crime Of Aggression; Some Personal Reflections on Kampala, 23 Leiden J. Int’l L. 905 (2010) —— The Crime of Aggression, in Substantive and Procedural Aspects of International Criminal Law The Experience of International and National Courts 59–60 (Gabrielle Kirk McDonald & Olivia Swaak-Godlman eds., 2000) Rolf Einar Fife, Rolf E. Fife, Commentary on Article 77: Applicable Penalties, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 990 (Otto Triffterer ed., 1999) —— Article 80: Non-prejudice to national application of penalties and national laws, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1009 (Otto Triffterer ed., 1999) —— Penalties, in International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 555 (Roy S. Lee ed., 2001) —— Penalties, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 319 (Roy S. Lee ed., 1999) Financial Action Task Force on Money Laundering, The Forty Recommendations (1990) George A. Finch, La Convention sur le Génocide, 21 Rev. Int’le de Droit Pénal 153 (1950) —— Genocide Convention, 43 Am. J. Int’l L. 732 (1949) —— Draft Statute for an International Criminal Court, 46 Am. J. Int’l L. 89 (1952) —— An International Criminal Court: The Case Against Its Adoption, 38 A.B.A. J. 644 (1952) Mark Findlay, Synthesis in Trial Procedures? The Experience of International Crim‑ inal Tribunals, 50 ICLQ 26 (2001) William Finnegan, The Poison Keeper, New Yorker, Jan. 15, 2001 Kevin J. Fitzgerald, The Chemical Weapons Convention: Inadequate Protections from Chemical Warfare, 20 Suffolk Transnat’l L.J. 425 (1997) George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985) Gordon W. Forbes, Some Legal Aspects of the Nuremberg Trial, 24 Can. B. Rev. 584 (1946)



table of authorities

lxxv

Forgiveness, Forgetfulness, or Intentional Overlooking, The New Shorter Oxford English Dictionary On Historical Principles 67 (Lesley Brown ed., 1993) Former Khmer Rouge leader in court, Assoc.’d Press, Apr. 23, 2008 David P. Forsythe, Politics and the International Tribunal for the Former Yugo‑ slavia, in The Prosecution of International Crimes 185 (Roger S. Clark & Madeleine Sann eds., 1996) Thomas M. Franck, To Define and Punish Piracies; The Lessons of the Santa Maria: A Comment, 36 N.Y.U. L. Rev. 839 (1961) Robert Friedlander, The Foundations of International Criminal Law: A Present Day Inquiry, 15 Case W. Res. J. Int’l L. 13 (1983) —— The Enforcement of International Criminal Law: Fact or Fiction, 17 Case W. Res. J. Int’l L. 79 (1985) —— Some Observations Relating to the Draft International Criminal Code Project, 52 Revue Internationale de Droit Pénal 393 (1984) Hakan Friman, Investigation and Prosecution, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 493 (Roy S. Lee ed., 2001) —— Rights of Persons Suspected or Accused of a Crime, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 247 (Roy S. Lee ed., 1999) Hakan Friman & Peter Lewis, Reparation to Victims, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 474 (Roy Lee ed., 2001) Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. 315 (2009) Mercurio Galasso, Appeal and Revision in Front of the International Criminal Court, in The International Criminal Court: Comments on the Draft Statute 301 (Flavia Lattanzi ed., 1998) Charles Garraway, Criminal Liability and Command Responsibility, in The Legal Regime of the International Criminal Court: Essays in Honour of Professor Ignor Blishchenko 723 (José Doria, Hans-Peter Gasser, M. Cherif Bassiouni eds., 2009) Lech Gardocki, Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Rev. Int’le de Droit Pénal 91 (1989) Pietro Gargiulo, The Relationship Between the ICC and the Security Council, in The International Criminal Court : Comments on the Draft Statute 95 (Flavia Lattanzi ed., 1998) James W. Garner, Punishment of Offenders Against the Laws and Customs of War, 14 Am. J. Int’l L. 70, 91 (1920) J.C. Garnett & M. Wright, Concept of Aggression in International Politics, 3 Int’l Relations 702 (1970)

lxxvi

table of authorities

Hans-Peter Gasser, A Brief Analysis of the 1977 Geneva Protocols, 19 Akron L. Rev. 525 (1986) Rudolf Geiger, The German Border Guard Cases and International Human Rights, 9 Eur. J. Int’l L. 540 (1998) Alberico Gentili, De Jure Belli Libri Tres, in Classics of International Law (James B. Scott ed., 1917) Patty Gerstenblith, Art, Antiquity, and the Law: Preserving our Global Cultural Heritage, 8 Int’l J. Cultural Prop. 327 (1999) —— The Public Interest in Restitution of Cultural Objects, 16 Conn. J. Int’l L. 197 (2001) Orla Guerin, Syria Sidesteps Lebanon Demands, BBC News, March 6, 2005 Kim Ghattas, Lebanon Finds Unity in Street Rallies, BBC News, March 3, 2005 William N. Gianaris, The New World Order and the Need for an International Court, 16 Fordham Int’l L. J. 88 (1992‑93) Geoffrey Gilbert, The Criminal Responsibility of States, 39 Int. & Comp. L.Q. 345 (1990) William C. Gilmore, The Proposed International Criminal Court: Recent Develop‑ ments, 5 Transnat’l L. & Cont. Prob. 263 (1995) Stéphanie Giry, Necessary Scapegoats? The Making of the Khmer Rouge Tribunal, N.Y. Rev. of Books (July 23, 2012) Stefan Glaser, Culpabilité en Droit International Pénal, 99 Recueil des Cours 473 (1960) —— Elément moral de l’infraction pénale internationale, 59 Rev. Générale de Droit Int’le Public 537 (1955) —— L’élément moral des infractions de commission par omission en droit interna‑ tional pénal, 73 Revue Pénal Suisse 263 (1958) —— Les Infractions internationales et leurs sanctions, 29 Rev. de Droit Pénal et de Criminologie 811 (1949) —— Le Principe de la légalité des délits et des peines et les procès des criminels de guerre, 28 Rev. de Droit Pénal et de Criminologie 230 (1948) Juan Luis Modolell Gonzalez, The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights, 10 Int’l. Crim. L. Rev. 475 (2010) A.L. Goodhart, The Legality of the Nuremberg Trials, 58 Jurid. Rev. 1 (1946) Edward Gordon, Appraisals of the ICJ’s Decision. Nicaragua v. United States (Mer‑ its), 81 Am. J. Int’l L. 129 (1987) John B. Gordon, Comment, UNESCO Convention on the Illicit Movement of Art Treasures, 12 Harv. Int’l L.J. 537 (1971) Gill Gott, A Tale of New Precedents: Japanese American Interment as Foreign Affairs Law, 40 B.C.L. Rev. 179 (1998)



table of authorities

lxxvii

John M.A. Goy, Le Régime International de l’Importation, de l’Exportation et du Transfert de Propriété de Biens Culturels, 1970 Annuaire Français de Droit International 605 (1970) Raymond H.M. Goy, International Protection of the Cultural and Natural Heritage, 4 Neth. Y.B. Int’l L. 117 (1973) Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case, 4 Eur. J. Int’l L. 184 (1993) Jean Graven, Les Crimes Contre l’Humanité, 76 Recueil des Cours de l’Académie de Droit International de la Haye 433 (1950) Allen B. Green, Convention on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons: An Analysis, 14 Va. J. Int’l L. 703 (1974) Leslie C. Green, An International Criminal Code—Now?, 3 Dalhousie L.J. 560 (1976) —— International Crime and the Legal Process, 29 Int’l & Comp. L.Q. 567 (1980) —— Is There an International Criminal Law?, 21 Alta. L. Rev. 251 (1983) —— New Approach to International Criminal Law, 28 Solic. 106 (1961) —— New Trends in International Criminal Law, 11 Isr. Y.B. Hum. Rts. 9 (1981) —— Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167 (1989) Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984) Mary Jo Grotenroth, Interpol Role in International Law Enforcement, in Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) Heinrich Grutzner, International Judicial Assistance and cooperation in Crimi‑ nal Matters, in 2 Treatise on International Criminal Law 189 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Fabricio Guariglia, Article 56: Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 735 (Otto Triffterer ed., 1999) —— Investigation and Prosecution, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 227 (Roy S. Lee ed., 1999) Fabricio Guariglia & Kenneth Harris, Article 57: Functions and powers of the PreTrial Chamber, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 743 (Otto Triffterer ed., 1999) Gilbert Guillaume, Terrorism et Droit International, 215 Hague Rec. 287 (1989)

lxxviii

table of authorities

Amos Guiora, Civilian Targets: Legal Responses to an Illegal Tactic, in 1 International Criminal Law: Sources, Subjects, and Contents 659 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Paul Gully-Hart, The European Aproach to Extradition, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 343 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 4/1 Eyes ICC 72 (2008) Carl Haensel, The Nuremberg Trials Revisited, 13 DePaul L. Rev. 233 (1964) Gerhard Hafner, Article 120: Reservations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1251 (Otto Triffterer ed., 1999) Malvina Halberstam, International Maritime Navigation and Installations on the High Seas, in 1 International Criminal Law: Sources, Subjects, and Contents 815 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christopher K. Hall, Article 19: Challenges to the jurisdiction of the Court or the admissibility of a case, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 405 (Otto Triffterer ed., 1999) —— Article 55: Rights of persons during an investigation, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 727 (Otto Triffterer ed., 1999) —— The Jurisdiction of the Permanent International Criminal Court over Viola‑ tions of Humanitarian Law, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Thomas Hammarberg, Efforts to Establish a Tribunal Against the Khmer Rouge Leaders: Discussions Between the Cambodian Government and the UN, Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and Cambodia, Stockholm (May 29, 2001) Michael Wahid Hanna, An Historical Overview of National Prosecutions for Interna‑ tional Crimes, in 3 International Criminal Law: International Enforcement 297 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Heidi L. Hansberry, Too Much of Good Thing in Lubanga and Haradinaj: The Dan‑ ager of Expediency in International Criminal Trials, 9 Nw. J. Int’l Hum. Rts. 357 (2011) M.S. Harari et al., Reciprocal Enforcement of Criminal Judgments, 45 Revue Internationale De Droit Penal 585 (1974) Frederik Harhoff & Phakiso Mochochoko, International Cooperation and Judicial Assistance, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 637 (Roy S. Lee ed., 2001) Rafik Hariri, On the Reconstruction of Lebanon: Achievements and Impediments, Speech Before the Los Angeles World Affairs Council, Dec. 18, 1996



table of authorities

lxxix

James D. Harmon, United States Money Laundering Laws: International Implica‑ tions, 9 N.Y.L. Sch. J. Int’l & Comp. L. 1, 25 (1988) Kenneth Harris, Article 70: Offences against the administration of justice, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 917 (Otto Triffterer ed., 1999) John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Crimi‑ nal Liability, 46 Am. Crim. L. Rev. 1329 (2009) Farooq Hassan, The Theoretical Basis of Punishment in International Criminal Law, 15 Case W. Res. J. Int’l L. 39 (1983) John N. Hazard, Why Try Again to Define Aggression? 62 Am. J. Int’l L. 701 (1968) Marc Henzelin, La Compétence Pénale Universelle: Une Question Non Résolue par l’Arrêt Yerodia, 4 Revue Génerale de Droit International Public 819 (2002) —— L’Immunité pénale des chefs d’Etat en matiere financiere: Vers une exception pour les actes de pillage de resources et de corruption?, in 12 Revue suisse de droit international et de droit européen 179 (2002) Peter J. Henning, Corporate Criminal Liability and the Potential for Rehabilitation, 46 Am. Crim. L. Rev. 1417 (2009) Berta Esperanza Hernandez, Money Laundering and Drug Trafficking Controls Score a Knockout Victory Over Bank Secrecy, 18 N.C.J. Int’l L. & Comm. Reg. 235 (1993) Sandra Hertzberg & Carmela Zammuto, The Protection Of Human Rights In The Criminal Process Under International Instruments And National Constitutions, 4 Nouvelles Etudes Penales (1981) Etelle Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l & Comp. L. 347 (2006) W. Hofacker, Die Leipziger Kriegsverbrecher prozess, ZSTW 649 et seq. (1922) Mark J. Hoffman, Normative Approaches, in International Relations: A Handbook of Current Theory 27 (M. Light & A.J.R. Groom eds. 1985) Warren Hoge, British Court Rules Pinochet Extraditable for Trial in Spain, N.Y. Times, Oct. 8, 1999 Dana Michael Hollywood, The Search for Post-Conflict Justice in Iraq, 33 Brook. J. Int’l L. 59 (2007) John T. Holmes, The Principle of Complementarity, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 41 (Roy S. Lee ed., 1999) John Hooper, Italian court finds CIA agents guilty of kidnapping terrorism suspect, Guardian, Nov. 4, 2009 Solis Horwitz, The Tokyo Trial, 465 Int’l Reconciliation 473 (1950) Alexandra Hudson, “Death Threats” to witnesses against Liberia’s Taylor, Reuters, Mar. 20, 2008

lxxx

table of authorities

Human Rights Observatory, Human Rights Trials in Chile and the Region (2010) Human Rights Watch, Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya (May, 2012) Hum. Rts. Watch, Coercion and Intimidation of Child Soldiers to Participate in Vio‑ lence (Apr. 2008) —— “Even a ‘Big Man’ Must Face Justice” Lessons from the Trial of Charles Taylor” (July 2012) —— A Human Rights Agenda for a New Kosovo (Feb. 2008) —— Humanitarian Law Violations in Kosovo I (Oct. 1998) —— Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (Aug. 1999) —— Indonesia: Courts Sanction Impunity for East Timor Abuses (Aug. 2004) —— Indonesia’s Court for East Timor a “Whitewash” (Dec. 2002) —— The Jury Is Still Out: A Human Rights Watch Briefing Paper on Sierra Leone, July 11, 2002 —— Justice for Atrocity Crimes (2012) —— Kosovo Criminal Justice Scorecard (Mar. 2008) “Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act” (May 18, 2011) —— Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina (Feb. 2006) —— Not on the Agenda: The Continuing Failure to Address Accountability in Kos‑ ovo Post-March 2004 (May 2006) —— Under Orders: War Crimes in Kosovo (Oct. 2001) —— Weighing the Evidence: Lessons from the Slobodan Milosevic Trial (Dec. 2006) —— World Report 2002: Sierra Leone Human Rights Developments (2002) —— World Report Children’s Rights: child Soldiers (2002) —— World Report 2011 Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008) Impunity Reigns, The Economist, Apr. 10, 2008 Infractions D’Omission et Responsabilité Pénale pour omission 55 RIDP 453-1040 (1984) International Central for Transitional Justice, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (2005) Int’l Ctr. for Transitional Justice, The Special Court for Sierra Leone: The First Eigh‑ teen Months 1 (2004) —— Post-Conflict Reintegration Initiative for Development & Empowerment, ExCombatant Views of the Truth and Reconciliation Commission and the Special Court for Sierra Leone 13 (Sept. 12, 2002) —— Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor (June 2005)



table of authorities

lxxxi

—— Too Much Friendship, Too Little Truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste (January 2008) International Criminal Court —— Report on Preliminary Examination activities, 13 December 2011 —— Update on Situation in Palestine, 3 April 2012 International Criminal Tribunal for the Former Yugoslavia —— Key Figures of ICTY Cases, Jan. 11, 2012 —— Statement of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia on the arrest of Radovan Stanković, Jan. 21, 2012 The International Criminal Court: Observations and Issues before the 1997–98 Pre‑ paratory Committee and Administrative and Financial Implications, 13 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed. 1997) Int’l Crisis Group, After Milosevic: A Practical Agenda for Lasting Balkans Peace, Balkans Report No. 108, Apr. 2, 2001 —— Kosovo’s First Month, Europe Briefing No. 47, Mar. 18, 2008 —— Kosovo: No Good Alternatives to the Ahtisaari Plan, Europe Report No. 182, May 14, 2007 —— Sierra Leone: Time for a New Military and Political Strategy, Africa Report No. 28, April 11, 2001 —— Sierra Leone: Managing Uncertainty, Africa Report No. 35, Oct. 24, 2001 International Protection of Victims, 7 Nouvelles Etudes Pénales (M. Cherif Bassiouni ed., 1988) Gordon Ireland, Ex Post Facto from Rome to Tokyo, 21 Temp. L.Q. 27 (1947) Neha Jain, A Separate Law for Peacekeepers: The Clash Between the Security Coun‑ cil and the International Criminal Court, 16 Eur. J. Int’l L. 239 (2005) —— Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 J. Int’l. Crim. Just. 1013 (2009) Charles Chernor Jalloh, Special Court for Sierra Leone: Achieving Justice?, 32 Mich. J. Int’l L. 395, 412 (2011) Sandra L. Jamison, A Permanent International Criminal Court: A Proposal that Overcomes Past Objections, 2 Denv. J. Int’l L. & Pol’y 419 (1995) Mark Janis, Jus Cogens: An Artful Not a Scientific Reality, 3 Conn. J. Int’l L. 370 (1988) Kathleen M. Jennings, The Struggle to Satisfy: DDR Through the Eyes of ExCombatants in Libers, 14 Int’l Peacekeeping 204 (April 2007) Mark Jennings, Article 78: Determination of the Sentence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 985–998 (Otto Triffterer ed., 1999) —— Article 79: Trust Fund, in Commentary on the Rome Statute of the International Criminal Court 1005 (Otto Triffterer ed., 1999) Sir Robert Jennings, Sovereignty and International Law, in State Sovereignty and International Governance 21 (Gerard Kreijen et al. ed., 2002)

lxxxii

table of authorities

Hans-Heinrich Jescheck, Development, Present State and Future Prospects of International Criminal Law, 52 Revue Internationale de Droit Pénal 337 (1981) —— Etat Actuel et Perspectives d’Avenir des Projets in le Domaine du Droit Inter‑ national Pénal, 35 Rev. Int’le de Droit Pénal 83 (1964) D.H.N. Johnson, The Draft of Code of Offenses Against the Peace and Security of Mankind, 4 Int’l Comp. L.Q. 445 (1955) A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High and Lower Intensity Conflicts and Serious Disputes, 7 PIOOM Newsletter & Progress Report 14 (Winter 1995) Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, 26 St. Louis U. Pub. L. Rev. 249 (2007) Christopher C. Joyner & Robert A. Friedlander, International Civil Aviation, in 1 International Criminal Law: Sources, Subjects, and Contents 831 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lock‑ erbie: What Lessons for International Extradition Law?, 14 Mich. J. Int’l L. 222 (1993) Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analy‑ sis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Int’l L. & Pol’y 325 (2002) Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Leba‑ non, 5 J. Int’l Crim. Just. 1125 (2007) Paul W. Kahn, Nuclear Weapons and the Rule of Law, 31 N.Y.U. J. Int’l L. & Pol. 349 (1999) Menno T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001) Suzanne Katzenstein, Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245 (1993) Hans-Peter Kaul, Towards a Permanent International Criminal Court: Some Obser‑ vations of a Negotiator, 18 Hum. Rts. L.J. 169 (1997) ——Kampala June 2010—A First Review of the ICC Review Conference, 2 Goettingent J. Int’l L. 649 (2010) Scott Keefer, International Control of Biological Weapons, 6 ILSA J. Int’l L. 107 (1999) Michael K. Keegan & Daryl A. Mundis, Legal Requirements for Indictments, Essays on ICTY Procedure and Evidence 123 (May, Tolbert, Hocking, Roberts, Bing Jia, Mundis & Oosthuizen eds., 2001) Joseph Keenan, Observations and Lessons From International Criminal Trials, 17 U. Kansas City L. Rev. 117 (1949) Barry Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J.L & Pub. Pol. 417 (2001)



table of authorities

lxxxiii

Barry Kellman & David S. Gualtieri, Barricading the Nuclear Window: A Legal Regime to Curtail Nuclear Smuggling, 96 U. Ill. L. Rev. 667 (1996) Hans Kelsen, Will the Judgmnt in the Nuremberg Trial Constitute a Precedent in International Law?, 1 Int’l L.Q. 153 (1947) Robert Kennedy, Libya v. United States: The International Court of Justice and the Power of Judicial Review, 33 Va. J. Int’l L. 899 (1993) David Kenner, Who’s the Boss? The Myth of Grand Bargaining Over the Tribunal Returns, Now Lebanon, Apr. 12, 2008 Robert Keohane, Compliance with International Commitments: Politics within a Framework of Law, in American Society of International Law Proceedings 180 (1992) Karim A.A. Khan, Article 34: Organs of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 589 (Otto Triffterer ed., 1999) Wondwossen L. Kidane, The Ethiopian “Red Terror” Trials, in Post-Conflict Justice 667 (M. Cherif Bassiouni ed., 2002) Ben Kiernan, Bringing the Khmer Rouge to Justice, 1 Hum. Rts. Rev. 3 (2000) Felly Kimenyi, Talks to Try Burundian Genocide Suspects Begin, The New Times, Apr. 18, 2008 Otto Kirchheimer, Criminal Omissions, 55 Harv. L. Rev. 615 (1942) Adolphus G. Kiribi-Whyte, Appeal Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 421–428 (G. K. McDonald & O. Swaak-Goldman eds. 2000) Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am. J. Int’l L. 2 (1999) —— The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, 28 Fordham Int’l L.J. 292 (2005) —— The International Criminal Court: From Rome to Kampala, 43 J. Marshall L. Rev. 515 (2010) Katheryn Klein, Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the Joint Tribunal in Cambodia, 4 Nw. U. J. Int’l Hum. Rts. 549 (2006) Fannie Klein & Daniel Wilkes, United Nations Draft Statute for an International Criminal Court—An American Evaluation, in International Criminal Law 526 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965) James I.K. Knapp, Mutual Legal Assistance Treaties as a Way to Pierce Bank Secrecy, 20 Case W. Res. J. Int’l L. 405 (1988) Geert-Jan Alexander Knoops, The Responsibility of Peacekeepers, in 3 International Criminal Law: International Enforcement 495 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Charles C. M. Kolb, The Fourth Amendment Abroad: Civilian and Military Perspec‑ tives, 17 Va. J. Int’l L. 515 (1977)

lxxxiv

table of authorities

Louis Kos-Rabcewicz-Zubkowski, La Création d’une Cour Pénale Internationale et L’Administration Internationale de la Justice, 1977 Can. Y.B. Int’l L. 253 —— The Creation of an International Criminal Court, in International Terrorism and Political Crimes 519 (M. Cherif Bassiouni ed., 1975) Nicholas Koumjian, Preface, in 16 Annotated Leading Cases of International Criminal Tribunals: Timor Leste the Special Panels for Serious Crimes 2003–2005, 13 (Andre Klip and Goran Sluiter, eds. 2009) Alex Kozinski, Death, Lies & Videotape—The Ceausescu Show Trial and the Future of Romania, 77 Am. Bar Ass’n J. 70 (1991) Otto Kranzbuhler, Nuremberg Eighteen Years Afterwards, 14 DePaul L. Rev. 333 (1965) Herbert Kraus, The Nuremberg Trials of the Major War Criminals: Reflections after Seventeen Years, 13 DePaul L. Rev. 233 (1964) Claus Kreb & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1181 (2010) Claus Kress, Article 86: Gen‑ eral obligations to cooperate, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1051 (Otto Triffterer ed., 1999) —— Witnesses in Proceedings Before the International Criminal Court, in International and National Prosecutions of Crimes Under International Law (Fisher, Kres & Luder eds., 2001) —— On the Outer Limits of Crimes Against Humanity: The Concept of Organi‑ zation within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 Leiden J. Int’l. L. 855 (2010) Claus Kress & Kimberly Prost, Article 87: Requests for cooperation: general provi‑ sions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1055 (Otto Triffterer ed., 1999) —— Article 89: Surrender of persons to the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1071 (Otto Triffterer ed., 1999) Neil J. Kritz, Progress and Humility: The Ongoing Search for Post-Conflict Justice, in Post-Conflict Justice 55 (M. Cherif Bassiouni ed., 2002) —— Reluctant Nation Building: Securing the Rule of Law in Post-Taliban Afghani‑ stan: Questions, Answers & Comments 17 Conn. J. Int’l L. 261 (2002) Joanna Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic Courts, in International Criminal Law and Philosophy (Larry May and Zachary Hoskins eds., 2010) —— Corporate Criminal Liability and the ICC Statute: The Comparative Law Chal‑ lenge, 41 Neth. Int’l. L. Rev. 333 (2009) John H. Langbein & Lloyd L. Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1978)



table of authorities

lxxxv

Maximo Langer, The Displomacy of Universal Jurisdiction: The Role of Political Branches in the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1 (2011). Maximo Langer and Joseph W. Doherty, Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms, 36 Yale J. Int’l. L. 241 (2011). La Création d’une Jurisdiction Pénale Internationale et la Coopération Internation‑ ale en Matière Pénale, 45 Rev. Int’le de Droit Pénal 435 (1974) La phase préparatoire du process pénal en droit comparé, 56 Revue Internationale de Droit Pénal (1985) La Phase décisoire du process pénal en droit comparé, 57 Revue Internationale de Droit Pénal (1986) La Phase exécutoire du process pénal en droit pénal compare, 61 Revue Internationale de Droit Pénal (1990) Chante Lasco, Repairing the Irreparable: Current and Future Approaches to Repa‑ rations, 10 Hum. Rts. Brief 18 (2003) Flavia Lattanzi, The Complementary Character of the Jurisdiction of the Court with Respect to National Jurisdictions, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Sir Elihu Lauterpacht, Sovereignty—Myth or Reality, 73 International Affairs 137 (1997) Hersch Lauterpacht, Insurrection et Piraterie, 4 Rev. Générale de Droit Int’le Public 513 (1939) James A. Leach, The Case for Establishing an International Criminal Court (Occasional Paper No. 1, Parliamentarians for Global Action 1992) Roy S. Lee, The Rome Conference and its Contributions to International Law, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 1 (Roy S. Lee ed., 1999) Marc Leepson, Book Review, Chi. Trib., Feb. 23, 1992, at Sec. 14, p. 3 Robert Legros, Droit Pénal International 1967, 48 Rev. de Droit Pénal et de Criminologie 259 (1968) Les Sociétés Commerciales et le Droit Pénal 58 RIDP 17 (1987) Bernard Leroy, M. Cherif Bassiouni & Jean-Francios Thony, The International Drug Control System, in 1 International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Howard S. Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders, 30 Revue de Droit Militaire et de Droit de la Guerre 183 (1991) Yeun‑Li Liang, The Establishment of an International Criminal Jurisdiction: The First Phase, 46 Am. J. Int’l L. 73 (1952) Richard B. Lillich & John M. Paxman, State Responsibility for Injuries to Alien Occasioned by Terrorist Activities, 26 Am. U. L. Rev. 217 (1977)

lxxxvi

table of authorities

David K. Linnan, Iran Air Flight 665 and Beyond: Free Passage, Mistaken SelfDefense, and State Responsibility, 16 Yale J. Int’l L. 245 (1991) Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in Inter‑ national Justice, 12 Crim. L. F. 185 (2001) —— East Timor and Accountability for Serious Crimes, in 3 International Criminal Law: International Enforcement 257 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Indonesia and Accountability for Serioius Crimes in East Timor, in 3 International Criminal Law: International Enforcement 399 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Putting Cambodia’s Extraordinary Chambers into Context, 11 Singapore Y.B. Int’l Law (2007) Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, B.U. Int’l L.J. 1 (1984) —— Genocide, in 1 International Criminal Law: Sources, Subjects, and Contents 403 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Towards an International Criminal Court, 3 San Diego Just. 1 (1995) Adam Liptak, Supreme Court Seeks Clarification on Jurisdiction in a Human Rights Case, N.Y. Times, Mar. 6, 2012 Frederick M. Lorenz, Civil-Military Cooperation in Restoring the Rule of Law: Case Studies from Mogadishu to Mitrovica, in Post-Conflict Justice 840 (M. Cherif Bassiouni ed., 2002) Vaughn Lowe, Lockerbie—Changing the Rules During the Game, 1992 Cambridge L.Q. 408 (1992) Erik Luna, The Curious Case of Corporate Criminality, 46 Am. Crim. L. Rev. 1507 (2009) Neil MacFarquhar, U.N. Council Endorses Gaza Report, N.Y. Times, Oct. 17, 2009, at A4 Bryan F. MacPherson, An International Criminal Court: Applying World Law to Individuals (The Center for U.N. Reform Education 1992) M.K.A. Malache, De la Piraterie, 26 Revue Égyptienne de Droit International 124 (1970) William T. Mallison & R.A. Jabri, Juridical Characteristics of Belligerent Occupa‑ tion and the Resort to Resistance by the Civilian Population: Doctrinal Develop‑ ment and Continuity, 42 Geo. Wash. L. Rev. 185 (1974) Linda A. Malone, Enforcing International Criminal Law Violations with Civil Reme‑ dies: The U.S. Alien Tort Claims Act, in 3 International Criminal Law: International Enforcement 421 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Kahan Report, Ariel Sharon and the Sabra-Shatilla Massacres in Leba‑ non: Responsibility Under International Law for Massacres of Civilian Popula‑ tions, 1985 Utah L. Rev. 373 (1985)



table of authorities

lxxxvii

Richard W. Mansbach, The Great Globalization Debate, in The Global Community: Yearbook of International Law and Jurisprudence 2007 21 (Giuliana Ziccardi Capaldo ed., 2008) F. Mantovani, Lineamenti Della Tutela Penale del Patrimonio Artistico, 19 Rivista Italiana Di Diritto e Procedura Penale 55 (1976) Antonio Marchesi, Article 2: Relationship of the Court with the United Nations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 65 (Otto Triffterer ed., 1999) —— Article 14: Referral of a situation by a State Party, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 353 (Otto Triffterer ed., 1999) Stephen P. Marks, Forgetting the Policies and Practices of the Past: Impunity in Cambodia, 17 Fletcher F. 18 (1994) Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat’l L. 73 (1995) Jaime Masaveu, La Pirateria y el Corso: un Estedio de Orientation Penal, 29 Criminelia 282 (1963) Michael J. Matheson, United Nations Governance of Post-Conflict Societies: East Timor and Kosovo, in Post-Conflict Justice 523 (M. Cherif Bassiouni ed., 2002) Jamie Mayerfeld, Who Shall be Judge?: The United States, the International Crimi‑ nal Court, and the Global Enforcement of Human Rights, 25 Hum. Rts. Q. 93 (2003) Julie Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act, 9 Emory Int’l L. Rev. 553 (1995) Etienne-Richard Mbaya, The Compatibility of Regional Human Rights Systems with International Standards, in Human Rights in Perspective 66 (Asbjorn Eide & Bernt Hagtvet eds., 1992) Margaret McAuliffe de Guzman, Article 21: Applicable Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 435 (Otto Triffterer ed., 1999) —— The Road from Rome: The Developing Law of Crimes Against Humanity, 22 Hum. Rts. Q. 335 (2000) Stephen C. McCaffrey, Criminalization of Environmental Protection, in 1 International Criminal Law: Sources, Subjects, and Contents 1013 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Jason McClurg, New Defense Counsel Appointed for Charles Taylor, 23 Int’l Enforcement L. Rep. 366 (2007) —— Witnesses Begin Testifying as Charles Taylor’s War Crimes Trial Resumes, 24 Int’l Enforcement L. Rep. (2008)

lxxxviii

table of authorities

Timothy L.H. McCormack & Gerry J. Simpson, A New International Criminal Law Regime, 42 Neth. Int’l L. Rev. 177 (1995) Hilaire McCoubrey, Humanitarianism in the Laws of Armed Conflict, in International Humanitarian Law: The Regulation of Armed Conflicts 1 (1990) Gabrielle K. McDonald, Trial Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court Vol. I, 554 (G.K. McDonald & O. Swaak-Goldman eds. 2000) Myres McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. Legal Ed. 253 (1967) Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959) Gerald P. McGinley, The ICJ’s Decision in the Lockerbie Cases, 22 Ga. J. Int’l & Comp. L. 577 (1992) Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sov‑ ereignty, 18 Eur. J. Int’l L. 903 (2007) John J. Mearshimer, The False Promise of International Institutions, 19 Int’l Security 5 (1994) Frederic Megret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons Learned from Domestic Compensation Schemes, 36 Brooklyn J. Int’l L. 123 (2010) Garth Meintjes, Domestic Amnesties and International Accountability, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Sub‑ ordinates or Separate Offence of the Superior?, 5 J. Int’l Crim. Just. 619 (2005) John Mendelsohn, War Crimes Trials and Clemency in Germany and Japan, in Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 226 (Robert Wolfe ed., 1984) Theodor Meron, On a Hierarchy of International Human Rights, 80 Am. J. Int’l L. 1 (1986) —— International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 554 (1995) Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004) Guenael Mettraux, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 142 et seq. (2010)



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Pillar III, Review of the Criminal Justice System, February 1, 2000 to July 31, 2000 71 (2000) —— Kosovo’s War Crimes Trials: A Review 12 (2002) —— Parallel Structures in Kosovo 2006–2007 (2007) —— Kosovo’s War Crimes Trials : An Assessment Ten Years on 1999–2009 (2010) —— War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina, Progress and Obstacles 10 (2005) William Orme, UN Ends Efforts To Try Khmer Rouge, Chi. Trib., Feb. 9, 2001 Mark J. Osiel, Ever Again, Legal Remembrance of Administrative Massacre, 144 U. Pa. L. Rev. 463 (1995) Reynald Ottenhof, Considerations sur la Forme le Style, et la Methode d’Elaboration du Projet de Code Pénal International, 52 Revue Internationale de Droit Pénal 385 (1984) Kazuomi Ouchi, The Threat or Use of Nuclear Weapons: Discernible Legal Policies of the Judges of the International Court of Justice, 13 Conn. J. Int’l L. 107 (1998) Hugh R. Overholt, The Use of Lasers as Antipersonnel Weapons, 1998–Nov. Army Law. 3 Herbert L. Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964) Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay, 10 Int’l. Crim. L. Rev. 601 (2010) Vernon Valentine Palmer, Mixed Legal Systems . . . and the Myth of Pure Laws, 67 La. L. Rev. 1205, 1207 (2007) Raul C. Pangalangan, Article 25: Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 192 (Otto Triffterer ed., 1999) Otto Pannenbecker, The Nuremberg War Crimes Trial, 14 DePaul L. Rev. 348 (1965) Pablo F. Parenti, The Prosecution of International Crimes in Argentina, 10 Int’l. Crim. L. Rev. 491 (2010) Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp. L. Rev. 411 (1989) John J. Parker, An International Criminal Court—The Case for its Adoption, 38 A.B.A. J. 641 (1952) Karen Parker & Lyn B. Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l Comp. L. Rev. 411 (1989) W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973) Monrad G. Paulsen & Michael I. Sovern “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969 (1956) Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as Law of the United States, 12 Mich. J. Int’l L. 59 (1990)

xciv

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—— Protection of National Security Interests, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 270 (Roy S. Lee ed., 1999) Mario Pisani, Aut Dedere Aut Punire, 30 L’ Indice Penale 241 (No. 2, 1966) William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Founda‑ tion, 17 Yale J. Int’l L. 1 (1992) Michael Plachta, The Lockerbie Case: The Role of the Security Council in Enforc‑ ing the Principle Aut Dedere Aut Judicare, 12 European Journal of International Law 125 (2001) —— Cooperation in Criminal Matters in Europe: Different Models and Approaches, in 2 International Criminal Law : Multilateral and Bilateral Enforcement Mechanisms (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009) Mauro Politi, The Establishment of an International Criminal Court at a Cross‑ roads: Issues and Prospects After the First Session of the Preparatory Committee, 13 Nouvelles Etudes Pénales 115 (1997) Yvette Politis, The Regulation of an Invisible Enemy: The International Commu‑ nity’s Response to Land Mine Proliferation, 22 Boston College Int’l & Comp. L. Rev. 465 (1999) Barry J. Pollack, Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1393 (2009) Frederick Pollock, Criminal Responsibility: The Defense of Superior Orders, in The Work of the League of Nations, 35 Law Q. Rev. 195 (1919) P. Poncela, L’Humanité une victime peu présentable, 1991, No. 34, 1987 Rev. Des Science Criminelle, 275 Dominique Poncet & Alain Maculoso, Confiscation, Restitution et Allocation de Valeurs Patrimoniales: Quelques Considerations de Procedure Penale, 221 La Semaine Judicaire 123 (2001) Jennifer L. Poole, Post-Conflict Justice in Sierra Leone, in Post-Conflict Justice 563 (M. Cherif Bassiouni, ed. 2002) Pope Pius XII, Address to the Sixth International Congress of Penal Law (1954) Nicholas M. Poulantzas, Hijacking v. Piracy: A Substantial Misunderstanding Not a Quarrel Over Semantics, 23 Revue Hellénique de Droit International 80 (1970) Jean Pradel, Procédure pénale compare dans les systèmes modernes: Rapports de synthèse des colloques de l’ISISC, 15 Nouvelles Etudes Pénales (1998) The Prevention and Suppression of Torture, 48 Revue Internationale de Droit Pénal (1977) Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001)

xcvi

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Peter E. Quint, The Border Guard Trials and the East German Past—Seven Argu‑ ments, 48 Am. J. Comp. L. 541 (2000) Max Radin, International Crimes, 32 Iowa L. Rev. 33 (1946) Radovan Karadzic Proven Guilty of Atrocities, Associated Press (Sept. 27, 2000) Manuel Rama‑Montaldo, Acerca de Algunos Conceptos Basicos Relativas al Derecho Penal Internacional y a una Jurisdiction Penal Internacional, in El Derecho Internacional en un Mundo en Transformacion (Manuel Rama-Montaldo ed., 1995) Jaya Ramji, Reclaiming Cambodian History: The Case for a Truth Commission, 24 Fletcher F. World Aff. 137 (2000) Kenneth Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785 (1988) S. Rama Rao, Article 112: Assembly of States Parties, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1201 (Otto Triffterer ed., 1999) Steven R. Ratner, Accountability for the Khmer Rouge: A (Lack of ) Progress Report, in Post-Conflict Justice 613 (M. Cherif Bassiouni ed., 2002) —— The United Nations Group of Experts for Cambodia, 93 Am. J. Int’l L. 948 (1999) Kelly Razzouk, The Special Tribunal for Lebanon: Implications for International Law, 1 Global Community: Y.B. Int’l L. & Jurisprudence, 219–54, (2008) Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, in Prosecution Case Studies Series (International Center for Transitional Justice, March 2006) Reigning In Impunity for International Crimes and Serious Violations of Funda‑ mental Human Rights: Proceedings of the Siracusa Conference 17‑21 September 1997, 14 Nouvelles Etudes Penales (Christopher C. Joyner special ed., & M. Cherif Bassiouni general ed., 1998) W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175 (1995) Bertil A. Renborg, Principles of International Control of Narcotic Drugs, 37 Am. J. Int’l L. 436 (1943) Research Shows Estimates of Bosnian War Death Toll Were Inflated, Assoc’d Press, June 21, 2007 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, U.N. Doc. S/2009/893, March 17, 2009 Luc Reydams, Universal Jurisdiction over Atrocities in Rwanda: Theory and Prac‑ tice, 1 Eur. J. Crime Cr. L. Cr. J. 18 (1996) Darryl Robinson, The Elements for Crimes Against Humanity, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 57 (Roy S. Lee ed., 2001)

xcviii

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Patrick L. Robinson, Rough Edges in the Alignment of Legal Systems in the Pro‑ ceedings at the ICTY, 3 J. Int’l Crim. Just. 1037 (2005) Paul H. Robinson, Imputed Criminal Liability, 93 Yale L.J. 613 (1984) —— Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729 (1990) Naomi Roht-Arriaza, Amnesty and the International Criminal Court, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed., 2001) —— State Responsibility to Investigate and Prosecute Grave Human Rights Viola‑ tions in International Law, 78 Calif. L. Rev. 451 (1990) —— Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress, in Impunity and Human Rights in International Law and Practice 24 (Naomi Roht-Arriaza ed., 1995) Bernard V.A. Röling, The Nuremberg and the Tokyo Trials in Retrospect, in 1 A Treatise on International Criminal Law 600 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) —— On Aggression, on International Criminal Law, on International Criminal Juris‑ diction, 2 Nederlands Tijdschrift voor International Recht 167 (1955) John W. Rolph, Perfecting an International Code of Crimes, 39 Fed. B. News & J. 528 (1992) Petr S. Romashkin, Aggressia Tiagchaishee Prestuplenie Protiv Mira I Che‑ lovechestva, 1 Sov. Gos. I Pravo 55 (1963) Simone Romero, Chileans Order Peru’s Ex-Chief Home For Trial, N.Y. Times, Sep. 22, 2007 Natalino Ronzitti, Pirateria, 33 Encyclopedia del Diritto 911 (1983) E.J. Roucounas, Aspects Juridiques de la Protection du Patrimoine Mondial Culturel et Naturel, 25 Revue Hellénique de Droit International 42 (1972) Henry Rousso, L’épuration en France une histoire inachevée, 33 Revue d’histoire 78 (1992) Alfred P. Rubin, An International Criminal Tribunal for the Former Yugoslavia, 6 Pace Int’l L. Rev. 7 (1994) Wiebke Ruckert, Article 4: Legal status and powers of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 89 (Otto Triffterer ed., 1999) Wiebke Rückert & Georg Witschel, Genocide and Crimes Against Humanity in the Elements of Crimes, in International and National Prosecution of Crimes Under International Law: Current Developments (Horst Fischer, Claus Kress, & Sascha Rolf Lüder eds., 2002) Medard R. Rwelamira, Composition and Administration of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 153 (Roy S. Lee ed., 1999) Hanna Saba, The Quasi Legislative Activities of Specialized Agencies, 111 Recueil des Cours de l’Académie de droit international de La Haye 281 (1964)



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Susana SáCouto and Katherine Cleary, Victim’s Participation in the Investigations of the International Criminal Court, 17 Transnat’l L. & Contemp. Probs. 73 (2008) Layla Nadya Sadat, Competing and Overlapping Jurisdictions, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 201 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The French Experience, in 3 International Criminal Law: International Enforcement 329 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010) Giuseppe Sagone, Pour un Droit Pénal International, 5 Rev. Int’le de Droit Pénal 363 (1928) Per Saland, International Criminal Law Principles, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 189 (Roy S. Lee ed., 1999) Quintiliano Saldana, Projet de Code Pénal International, 1 Congrès International de Droit Pénal (1926) Stephen A. Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 VA. J. Int’l L. 741 (1980) S. Boutros Samann, Définition de l’Agression, 24 Rev. Égyptienne de Droit Int’l 187 (1968) Claes Sandgren, Corruption of Foreign Public Officials, in 1 International Criminal Law: Sources, Subjects, and Contents 963 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Yves Sandoz, Penal Aspects of International Humanitarian Law, in 1 International Criminal Law : Sources, Subjects, and Contents 293 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Reflection on Impunity and the Need for Accountability, 14 Nouvelles Études Pénales 381 (1998) Lidia Santarelli, Muted violence: Italian war crimes in occupied Greece, 9 J. Modern Italian Stud. 280 (2004) Charles S. Saphos, Something is Rotten in the State of Affairs Between Nations: The Difficulties of Establishing the Rule of International Criminal Law Because of Public Corruption, 19 Fordham Int’l L.J. 1947 (1996) Ben Saul, Was the Conflict in East Timor ‘Genocide’ and Why Does It Matter?, 2 Melb. J. Int’l L. 477 (2001) Lucinda Saunders, Rich & Rare are the Gems They War: Holding DeBeers Account‑ able for Trading Conflict Diamonds, 24 Fordham Int’l L.J. 1402 (2001) Ernesto Savona, International Scientific and Advisory Professional Council, in The Contributions of Specialized Institutes and Non-Governmental Organizations to the United Nations Criminal Justice Program (In honor of Adolfo Beria di Argentine) 249 (M. Cherif Bassiouni ed., 1995)

c

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—— Mafia Money Laundering Versus Italian Legislation, Eur. J. Crim. Pol’y & Res. (June 1993) William A. Schabas, Article 29: Non-applicability of Statute of Limitations, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 523 (Otto Triffterer ed., 1999) —— Article 63: Trial in the Presence of the Accused, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 803 (Otto Triffterer ed., 1999) —— Article 66: Presumption of Innocence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 833 (Otto Triffterer ed., 1999) —— Article 67: Rights of the Accused, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 845 (Otto Triffterer ed., 1999) —— Article 76: Sentencing, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 845 (Otto Triffterer ed., 1999) —— International Criminal Tribunals: A Review of 2007, 6 Nw. J. Int’l Hum. Rts. 382 (2008) —— International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 International Criminal Law: International Enforcement 613 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— Penalties, in The International Criminal Court: Comments on the Draft Statute 273 (Flavia Lattanzi ed., 1998) —— The Rwanda Case: Sometimes It’s Impossible, in Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984) Michael P. Scharf, Getting Serious About an International Criminal Court, 6 Pace Int’l L. Rev.103 (1994) —— The Jury is Still Out on the Need for an International Criminal Court, 1 Duke J. Comp. & Int’l L. 135 (1991) —— The Lockerbie Model of Transfer of Proceedings, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 525 (M. Cherif Bassiouni, ed., 3d rev. ed. 2008) —— Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti? 31 Tex. Int’l L.J. 1 (1996) —— The Tools for Enforcing International Criminal Justice in the New Millenium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000) David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law: International Enforcement 219 (M. Cherif Bassiouni ed., 3d rev. ed. 2008)



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——, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law 219 (M. Cherif Bassiouni, ed., 3d ed. 2008) R. Schlesinger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Expe‑ rience, 26 Buffalo L.Rev. 361 (1977) Andreas Schloenhardt, Transnational Organzied Crime and International Crimi‑ nal Law, in 1 International Criminal Law: Sources, Subjects, and Contents 939 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Angelika Schlunk, Article 58: Issuance by the Pre-trial Chamber of a warrant of arrest or a summons to appear, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 753 (Otto Triffterer ed., 1999) Alex P. Schmid, Early Warning of Violent Conflicts: Causal Approaches, in Violent Crime & Conflicts 47 (ISPAC 1997) Elana Schor, U.S. Removes Oil Giant from Burma Sanctions, The Guardian, July, 23, 2008 Esther Schrader & Henry Weinstein, U.S. Enters a Legal Gray Zone: Strike in Yemen Raises Thorny Questions of Assassination and the Definition of War, L.A. Times, November 5, 2002 Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497 (1974) Georg Schwarzenberger, Civitas Maxima?, 29 Y.B. World Affairs 337 (1975), reprinted in Georg Schwarzenberger, The Dynamics of International Law 107 (1976) —— The Judgment of Nuremberg, 21 Tul. L. Rev. 329 (1947) —— The Problem of International Criminal Law, 3 Cur. Legal Probs. 263 (1950) Romana Schweiger, Late Justice for Burundi, 55 Int’l & Comp.L.Q. 6531 (2006) Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178 (1946) Ryan M. Scoville, Note, Toward an Accountability-Based Definition of “Mercenary”, 37 Geo. J. Int’l L. 541 (2006) Jill M. Sears, Confronting the ‘Culture of Impunity:’ Immunity of Heads of State from Nuremberg to Ex Parte Pinochet, 42 German Ybk. Int’l L. 125 (1999) Ahmed Seif El-Dawla, Effects of Contemporary International Obligations for Com‑ bating the Financing of Terrorism on Interstate Cooperation in Criminal Mat‑ ters, in 1 International Criminal Law: Sources, Subjects, and Contents 779 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Senegal May Finally Try Habre, Reuters, July 24, 2008 Serb Outrage at Kosovo War Crimes Ruling, CNN.com, Apr. 4, 2008 Andrea Sereni, Individual Criminal Responsibility, in The International Criminal Court: Comments on the Draft Statute (Flavia Lattanzi ed., 1998) Michael Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases After Soering, 17 Yale J. Int’l L. 85 (1992)

cii

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Ivan Shearer, Recognition and Enforcement of Foreign Criminal Judgments, 47 Aust. L. J. 585 (1973) Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary Interna‑ tional Law Prohibit the Use of Nuclear Weapons in all Circumstances?, 20 Fordham Int’l L. J. 181 (1996) Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int’l L. 291 (2006) Barrett Sheridan, Trials Without Borders, Newsweek, Jan. 10, 2008 Shocking Footage at Taylor Trial, BBC News, Jan. 7, 2008 Sami Shubber, Is Hijacking of Aircraft Piracy in International Law? 1968 Brit. Y.B. Int’l L. 193 (1968–69) Kuniji Shibahara, Article 61: Confirmation of the Charges Before Trial, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 783 (Otto Triffterer ed., 1999) Valeri Shupilov, General Comments on the Draft International Criminal Code, 52 Revue Internationale de Droit Pénal 373 (1984) Sierra Leone ex-combatants make peace with victims, Agence France-Presse, Apr. 5, 2008 Sierra Leone Truth And Reconciliation Commission Calls for Reparations, UN News Service Oct. 28, 2004 Ronli Sifris, Weighing Judicial Indepenence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Int’l Comp. L. 88, 107 (2008) Kenneth R. Simmonds, Law and Human Experimentation, 10 U. of Ghana L.J. 81 (1973) Nagendra Singh, Armed Conflict and Humanitarian Laws of Ancient India, in Etudes et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984) Param-Preet Singh, Hum. Rts. Watch, Narrowing the Impunity Gap: Trials before Bosnia’s War Crimes Chamber, v.19 (Feb. 2007) S. Prakash Sinha, The Position of the Individual in an International Criminal Law, in 1 A Treatise on International Criminal Law 122 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Tuiloma Neroni Slade & Roger S. Clark, Preamble and Final Clauses, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 421 (Roy S. Lee ed., 1999) Stefaan Smis, The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 27 Georgia J. Int’l & Comp. L. 345 (1999) Jennifer M. Smith, An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity, 97 Geo. L.J. 1111 (2009) Louis B. Sohn, Generally Accepted International Rules, 61 Wash. L. Rev. 1973 (1986)



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—— The New International Law: Protection of the Rights of Individuals Rather Than States, 32 Am. U. L. Rev. 1 (1982) An Sok, The Khmer Rouge Tribunal: What It Means for Cambodia, in Just. Initiatives, 25 (Open Society Justice Initiative, 2006) Paul B. Spiegel et al., Prevalence of HIV infection in conflict-affected and displaced people in seven sub-Saharan African countries: a systematic review, 369 Lancet 2187 (2007) Paul Spurlock, The Yokahama War Crimes Trials: The Truth About a Misunder‑ stood Subject, 36 A.B.A.J. 387 (1950) F. Staempfli, Die Internationale Bekämpfung der Geldfalschungen und die Schweiz, 45 Schweizerische Zeitschrift für Strafrecht 478 (1931) Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l. L. 952 (2001) Christopher Staker, Article 81: Appeal Against Decision of Acquittal or Conviction or Against Sentence, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1015 (Otto Triffterer ed., 1999) —— Article 82: Appeal Against other Decisions, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1029 (Otto Triffterer ed., 1999) W.B. Stanford, Introduction to Aeschylus, The Oresteia (Robert Fagles trans., 1977) Michael Steiner, For Example Kosovo: Seven Principles for Building Peace, Address at the London School of Economics, (Jan. 27 2003) Adam Steinfield, Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons, 62 Brooklyn L. Rev. 1625 (1996) Brigitte Stern, La Cour Penale Internationale in le projet de la Commission du Droit International, in International Legal Issues Arising Under the United Nations Decade of International Law 79 (1995) Bryan Stevenson, Capital Punishment in the United States of America, in International Commission of Jurists 47 (2000) David Stoelting, Enforcement of International Criminal Law, 34 Int’l L. 669 (2000) Gerhardt A.M. Strijards, Article 3: Seat of the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 71 (Otto Triffterer ed., 1999) —— Article 103: Role of States in Enforcement of Sentences of Imprisonment, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 1059 (Otto Triffterer ed., 1999) Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor, 95 Am. J. Int’l L. 46 (2001)

civ

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—— Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor, U. NSW L.J. 16 (2001) Jane Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l L. 251 (2007) Eric Stover, Mychelle Balthazard and K. Alexa Koenig, Confronting Duch: Civil party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia, 93 Int’l Rev. Red Cross 1 (2011) Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Francisco Suarez, On War, in Classics of International Law (James B. Scott ed., 1917) Mark A. Summers, Diplomatic Immunity: Ratione Personae: Did the International Court of Justice Create a New Customary Law Rule in Congo v. Belgium?, 16 Mich. St. J. Int’l L. 459 (2007) Tracie A. Sundack, Note, Republic of Philippines v. Marcos: The Ninth Circuit Allows a Former Ruler to Invoke the Act of State Doctrine Against a Resisting Sovereign, 38 Am. U.L. Rev. 225 (1988) Jacob W.F. Sundberg, The Crime of Piracy, in 1 International Criminal Law: Sources, Subjects, and Contents 799 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Leonard B. Sutton, Jurisdiction Over Diplomatic Personnel and International Orga‑ nizations Personnel for Common Crimes and for Internationally Defined Crimes, in 2 A Treatise on International Criminal Law 97 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Bert Swart, The European Union and the Schengen Agreement, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 243 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Symposium, International Protections of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988) Symposium, The Ratification of the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1167 (1993) Imre Szabo, Historical Foundations of Human Rights and Subsequent Develop‑ ments, in International Dimensions of Human Rights (Karel Vasak ed., 1982) Immi Tallgren, Article 20: Ne bis in idem, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 419 (Otto Triffterer ed., 1999) C.S. Thomas & M.J. Kirby, The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 22 Int’l & Comp. L.Q. 163 (1973) —— Thematic Prosecution of International Sex Crimes (Morten Bergsmo, ed. 2012) Larry Thompson, The Blameless Corporation, 46 Am. Crim. L. Rev. 1323 (2009)



table of authorities

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E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (1975) Firew Kedebe Tiba, The Mengitsu Genocide Trial in Ethiopia, 5 Int’l Crim. Just. 513, 515 (2007) Craig Timberg, Sierra Leone Special Court’s Narrow Focus, Wash. Post, Mar. 26, 2008 Birte Timm, The Legal Position of Victims in the Rules of Procedure and Evidence, in International and National Prosecution of Crimes Under International Law 289 (Horst Fischer, Claus Kress & Rold Lüder eds., 2002) Peggy Tobolowski, Victim Participation in the Criminal Justice Process:  Fifteen Years After the President’s Task Force on Victims of Crime, New Eng. J. Crim. & Civil Confinement  21 (1999) David Tolbert, Article 43: The Registry, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 637 (Otto Triffterer ed., 1999) —— Article 50: Official and Working Languages, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 675 (Otto Triffterer ed., 1999) Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, 48 Int’l Comm’n Jurists Rev. 38 (1992) Top aide testifies Taylor ordered soldiers to eat victims, CNN.com, Mar. 13, 2008 Criton G. Tornaritis, The Individual as a Subject of International Law and Interna‑ tional Criminal Responsibility, in 1, 2 A Treatise on International Criminal Law 103 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973) Aron N. Trainin, Le Tribunal Militaire International et le Proces de Nuremberg, in 17 Revue Internationale de Droit Pénal 263 (1946) Greg Travalio, Terrorism, State Responsibility, and the Use of Military Force, 4 Chi. J. Int’l L. 97 (2003) Stefan Trechsel, The Protection of Human Rights in Criminal Procedure, 49 Revue Internationale de Droit Pénal 541 (1968) Giles Tremlett, Spanish court opens investigation of Guantánamo torture allegations, Guardian, Apr. 29, 2009 Otto Triffterer, Article 1: The Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 51–64 (Otto Triffterer ed., 1999) —— Article 27: Irrelevance of Official Capacity, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 501 (Otto Triffterer ed., 1999) —— Article 32: Mistake of Fact or Mistake of Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 555 (Otto Triffterer ed., 1999) —— Article 33: Superior Order and Prescription of Law, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 573 (Otto Triffterer ed., 1999)

cvi

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—— Article 71: Sanctions for Misconduct Before the Court, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 925 (Otto Triffterer ed., 1999) —— Article 74: Requirements for the Decision, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 953 (Otto Triffterer ed., 1999) —— Rapport, Les Crimes Internationaux et le Droit Pénal Interne, 60 Rev. Int’le de Droit Pénal 31 (1989) U.N. Race Conference On Thin Ice, CBSNews.com, July 25, 2001 The Unconstitutional Detention of Mexican and Canadian Prisoners by the United States Government, 12 Vand. J. Trans. L. 67 (1979) The United Nations Convention Against Transnational Organized Crime, 71 Revue Internationale de Droit Pénal 253 (2000) United Press International, Former Tunisian president Ben Ali on trial, Jan. 3, 2012 United States Inst. of Peace, Kosovo Final Status: Options and Cross-Border Requirements, Special Report 91, July, 2002 Theo van Boven, Accountability for International Crimes: The Victim’s Perspective, 14 Nouvelles Études Pénales 349 (1998) Christine Van den Wyngaert, L’Espace Judiciare Européen: Vers une Fissure au Sein du Conseil de L’Europe?, 61 Rev. Droit Pénal et de Crim. 511 (1981) —— L’Espace Judiciare Européen Face à L’Euro-Terrorisme et la Sauvegarde des Droits Fondamentaux, 3 Rev. Int’le de Criminologie et de Police Technique 289 (1980) —— Projet de Code Penal International, 51 Revue Internationale de Droit Pénal (1980) —— Rethinking the Law of International Cooperation: The Restrictive Function of International Human Rights Through Individual-Oriented Bars, in Principles and Procedures for a New Transnational Criminal Law 489 (Albin Eser & Otto Lagodny eds., 1992) Damien Vandermeersch, Compètence universelle et immunités en droit inter‑ national humanitaire la situation belge, in Le Droit Pènal a l’epreuve de l’internationalisation 227 (Marc Henzelin & Robert Roth eds., 2002) —— La répression en droit belge des crimes de droit international, 68 Revue International de Droit Pénal 1093 (1997) —— Les poursuites et le jugement des infractions de droit international human‑ itaire en droit belge, in H.D. Bosly et al., Actualités du Droit International Humanitaire 123 (2001) W.J. Ganshof van der Meersch, Justice et Droit International Pénal, 42 Rev. de Droit Pénal et de Criminologie 3 (1961) Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat’l L. 505 (2011)



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Elies van Sliedregt, Modes of Liability, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 223 (2010) Elizabeth Santalla Vargas, An Overview of the Crime of Genocide in Latin American Jurisdictions, 10 Int’l. Crim. L. Rev. 441 (2010) Giuliano Vassalli, Copevolezza, Encyclopedia Guiridica Treccani (vol. 6 1988) —— In tema di Diretto Internazionale Penal, 56 Giustizia Penale 257 (1951) —— Mandato d’arresto e principio d’egnaglianza, 3 Il Giusto Processo 129 (2002) Jacques Verhaegen, Les Impasses du Droit International Pénal, 38 Rev. de Droit Pénal et de Criminologie 3 (1957) J. Verhoeven, Vers un ordre répressif universel? Quelques observations, Annuaire français de droit international 55 (1999) John K. Villa, A Critical View of Bank Secrecy Act Enforcement and Money Launder‑ ing Statutes, 37 Cath. U. L. Rev. 489 (1988) Charles Villa-Vicenio, Why Perpetrators Should Not Always be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 217 (2000) R.J. Vincent, Order in International Politics, in Order and Violence: Hedley Bull and International Relations 38 (J.D.B. Miller & R. J. Vincent eds. 1990) Dimitri Vlassis, Challenges in the Development of International Criminal Law: The Negotiations of the United Nations Convention Against Transnational Orga‑ nized Crime and the United Nations Convention Against Corruption, in 1 International Criminal Law: Sources, Subjects, and Contents 907 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Herman Von Hebel, The Elements of War Crimes, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 109 (Roy S. Lee ed., 2001) Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 79 (Roy S. Lee ed., 1999) Alfred von Staden & Hans Bollaard, The Erosion of State Sovereignty: Towards a post-territorial world?, in States Sovereignty and International Governance 176 (Gerard Kreijen et al. eds., 2002) Lal Chand Vohrah, Pre-Trial Procedures and Practices, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 530 (G.K. McDonald & O. Swaak-Goldman eds., 2000) Ian G. Waddell, International Narcotic Control, 64 Am. J. Int’l L. 310 (1970) Patricia M. Wald, Challenges Judging Genocide, in Just. Initiatives 85 (Open Society Initiative, 2006)

cviii

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Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did they Provide an Outline for International Legal Proce‑ dure, 37 Colum. J. Transnat’l L. 851 (1999) Evan Wallach & I. Maxine Marcus, Command Responsibility, in 3 International Criminal Law : International Enforcement 459 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) James Walston, History and Memory of the Italian Concentration Camps, 40 Historical J. 169 (1997). Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Receuil des Cours de l’Academie de La Haye (RCADI) 9 (1994) Ruth Wedgewood, The Constitution and the ICC, in The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000) —— Fiddling in Rome: America and the International Criminal Court, 6 Foreign Aff. 20 (1998) Prosper Weil, Towards Normative Relativity in International Law?, 77 Am. J. Int’l L. 413 (1983) Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St Mary’s L. J. 857 (1995) Zhu Wen-qi, Article 36: Qualifications, Nomination and Election of Judges, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 599 (Otto Triffterer ed., 1999) Leila Sadat Wexler, First Committee Report on Jurisdiction, Definition of Crimes and Complementarity, 13 Nouvelles Etudes Penales 163 (1997) —— The Interpretation of the Nuremberg Principles by the French Court of Cassa‑ tion: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 259 (1994) Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17, 1998, 13ter Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998) Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee, 13bis Nouvelles Études Pénales (Leila Sadat Wexler ed. 1998) —— The Proposed International Criminal Court—An Appraisal, 29 Cornell Int’l L.J. 665 (1996) Nicholas J. Wheeler, Pluralist or Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention, 21 Millennium: Journal of Int’l Studies 463 (1992) Eric Wielbelhaus-Brahm, Truth Commissions and Other Investigative Bodies, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 477 (2 vols., M. Cherif Bassiouni ed., 2010) Martin Wight, An Anatomy of International Thought, 13 Rev. Int’l Stud. 221 (1987)



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—— Western Values in International Relations, in Martin Wight, Diplomatic Investigations 89 (1968) Sharon A. Williams, Article 11: Jurisdiction Ratione Temporis, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 323 (Otto Triffterer ed., 1999) —— Article 12: Preconditions to Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 329 (Otto Triffterer ed., 1999) —— Article 13: Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 343 (Otto Triffterer ed., 1999) —— Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 383 (Otto Triffterer ed., 1999) Richard W. Williamson, Policy Analysis Brief: Sudan and the Implications for Responsibility to Protect (Stanley Foundation, 2009) Elizabeth Wilmshurst, Jurisdiction of the Court, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 127 (Roy S. Lee ed., 1999) Edward M. Wise, Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere Aut Judicare, 62 Revue Internationale de Droit Pénal 109 (1991) —— General Rules of Criminal Law, 25 Denv. J. Int’l L. & Pol’y. 313 (1997) —— The International Criminal Court: A Budget of Paradoxes, 8 Tulane J. Int’l Comp. L. 267 (2000) —— The Obligation to Extradite or Prosecute, 27 Israel L. Rev. 268 (1993) —— Prolegomenon to the Principles of International Criminal Law, 16 N.Y. L.F. 562 (1970) —— Some Problems of Extradition, 15 Wayne L. Rev. 709 (1969) —— Terrorism and the Problems of an International Criminal Law, 19 Conn. L. Rev. 799 (1987) Michail Wladimiroff, The Rights of Suspects and Accused, in Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Court vol. I, 426 (G.K. McDonald & O. Swaak-Goldman eds. 2000) M.C. Wood, Convention on the Prevention and Punishment of Crimes Against Inter‑ nationally Protected Persons, Including Diplomatic Agents, 23 Int’l & Comp. L.Q. 791 (1974) Nicholas Wood, Kosovo War Crimes Trial Splits West and Prosecutors, Int’l Herald Trib., Apr. 8, 2007 Ben Atkinson Wortley, Pirata Non Mutat Dominium, 1947 Brit. Y.B. Int’l L. 258 (1974) Quincy Wright, The Legality of the Kaiser, 13 Am. Pol. Sci. Rev. 121 (1919)

cx

table of authorities

—— Proposal for an International Criminal Court, 46 Am. J. Int’l L. 60 (1952) —— The Scope of International Criminal Law: A Conceptual Framework, 15 Va. J. Int’l L. 561 (1975) e XI Congrès International de Droit Pénal, La Répression de la Capture Illicite d’Aéronefs, 47 Rev. Int’le de Droit Pénal 1 (1976) Ellen A. Yearwood, Data Bank Control, in Legal Responses to International Terrorism: U.S. Procedural Aspects (M. Cherif Bassiouni ed., 1988) Lionel Yee, The International Criminal Court and The Security Council, in International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results 143 (Roy S. Lee ed., 1999) Mark W. Zacher, Multilateral Organizations and the Institution of Multiateralism: The Development of Regimes for Nonterrestrial Spaces, in Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993) Bruce A. Zagaris, Constructing a Hemispheric Initiative Against Transnational Crime, 19 Fordham Int’l L.J. 1888 (1996) —— Developments in International Judicial Assistance and Related Matters, 18 Denv. J. Int’l L. & Pol’y 339 (1990) —— Dollar Diplomacy: International Enforcement of Money Movement and Related Matters—A United States Perspective, 22 Geo. Wash. J. Int’l L. & Econ. 465 (1989) —— United States Treaties on Mutual Assitance in Criminal Matters, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) —— U.N. Special Tribunal Releases Suspects in Hariri’s Death Due to Lack of Evi‑ dence, 25 Int’l Enforcement L. Rep. 284 (2009) Bruce Zagaris & Sheila M. Castilla, Constructing an International Financial Enforcement Subregime: The Implementation of Anti-Money Laundering Policy, 19 Brook. J. Int’l L. 872 (1993) Bruce Zagaris & Scott B. MacDonald, Money Laundering, Financial Fraud, and Technology: The Perils of an Instantaneous Economy, 26 Geo. Wash. J. Int’l L. & Econ. 62 (1992) Bruce Zagaris & Constantine Papavizass, Using the Organization of American States to Control International Narcotics Trafficking and Money-Laundering, 57 Rev. Int’l de Droit Pénal 119 (1986) Bruce Zagaris & Elizabeth Virginia, Asset Forfeiture, International and Foreign Law: An Emerging Regime, 5 Emory Int’l L. Rev. 446 (1991) Mark S. Zaid, The U.S. War Crimes Act of 1996, in 3 International Criminal Law: International Enforcement 407 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) Andreas Zimmerman, Article 5: Crimes Within the Jurisdiction of the Court, Commentary on the Rome Statute of the International Criminal Court 97 (Otto Triffterer ed., 1999)

TABLE OF ABBREVIATIONS The abbreviations which follow are referred to in footnotes throughout the book. Others are in accordance with The Bluebook: A Uniform System of Citation (17th Rev. Ed. 2000). 1899 Hague Convention

Convention With Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, T.S. No. 403, 26 Martens Nouveau Recueil (ser. 2) 949, reprinted in 1 Am. J. Int’l L. 129 (1907) (Supp.), 1 Friedman 221, Schindler/Toman 57 1907 Hague Convention Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 3 Martens Nouveau Recueil (ser. 3) 461, reprinted in 2 Am. J. Int’l L. 90 (1908) (Supp.), 1 Friedman 308, 1 Bevans 631 1919 Commission Report Report Presented to the Preliminary Peace Conference by the ommission on the Responsibilities of the Authors of the War and on Enforcement of Penalties (Conference of Paris 1919 Carnegie Endowment for International Peace, Division of International Law), Pamphlet No. 32 (1919), reprinted in 14 Am. J. Int’l L. 95 (1920) (Supp.), 1 Friedman 842 1948 Genocide Convention Convention on the Prevention and Punishment of  (also Genocide the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277,  Convention) reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.) 1949 Geneva Conventions Conventions signed at Geneva, Aug. 12, 1949: (a) Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), 75 U.N.T.S. 31, 6 U.S.T. 3114, T.I.A.S. No. 3362. (b) Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II), 75 U.N.T.S. 85, 6 U.S.T. 3217, T.I.A.S. No. 3363. (c) Convention Relative to the Treatment of Prisoners of War (Geneva Convention III), 75 U.N.T.S. 135, 6 U.S.T. 3316, T.I.A.S. No. 3364. (d) Convention Relative to the Protection of Civilian

cxii

table of abbreviations

Persons in Time of War (Geneva Convention IV), 75 U.N.T.S. 287, 6 U.S.T. 3516, T.I.A.S. No. 3365 1950 ILC Report Report of the International Law Commission, U.N. GAOR, 5th Sess., U.N. Doc. A/CNA/25 (1950) 1974 Definition of Definition of Aggression (United Nations General  Aggression Assembly Resolutions), Dec. 14, 1974, G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. (No. 31) at 142, U.N. Doc. A/9631 (1974) 1977 Protocol I Protocol Additional to Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, U.N. Doc. A/32/144 Annex I, reprinted in 16 I.L.M. 1391, Schindler/Toman 551 1977 Protocol II Protocol Additional to Geneva Convention of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for sig‑ nature, Dec. 12, 1977, U.N. Doc. A/32/144 Annex II, reprinted in 16 I.L.M. 1391, Schindler/Toman 619 Draft Code of Crimes Against the Peace and Security of Crimes of Mankind, May 6-July 26, 1996, Report of the ILC, GAOR Supp. No. 10, U.N. Doc. A/51/10 1996 ICC PrepCom Report Report of the Preparatory Committee on the Establish‑ ment of an International Criminal Court, Vol. I, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996) 9/11 The terrorist attacks of September 11, 2001, on the World Trade Center in New York, and the Pentagon, outside of Washington, D.C. Annexes to Final Report Annexes to the Final Report, U.N. SCOR, 49th Sess.,  of Yugoslavia U.N. Doc. S/1994/674/ Add.2 (1994) (See also Final  Commission of Experts Report, Committee of Experts) Annex II to 1919 Memorandum of Reservations Presented by the  Commission Report Representatives of the United States to the Report of the Commission on Responsibilities, Annex II Apr. 4, 1919, reprinted in 14 AM. J. INT’L L. 127 (1920) Apartheid Convention International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, U.N. G.A. Res. 3068 (XXVIII), 28th Sess., U.N. GAOR Supp. No. 30 at 75, U.N. Doc. A/9030 (1973), reprinted in 13 I.L.M. 50 (1974) ASP Assembly of States-Parties to the International Criminal Court Bassiouni & Wise, Aut M. Cherif Bassiouni & Edward M. Wise, Aut



table of abbreviations

 Dedere Aut Judicare Bassiouni, Crimes  Against Humanity Bassiouni, Draft Code Bassiouni, From  Versailles to Rwanda Bassiouni, General  Principles Bassiouni, International  Extradition Bassiouni, Human Rights  Compendium Bassiouni, International  Humanitarian Law 1 Bassiouni, ICL 2 Bassiouni, ICL 3 Bassiouni, ICL Bassiouni, ICL  Conventions Bassiouni, Negotiating the  Treaty of Rome Bassiouni, Post-Conflict  Justice Bassiouni, Statute  of the Icc Bassiouni, Terrorism  Conventions Bassiouni, Terrorism

cxiii

Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995) M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2d rev. ed. 1999) M. Cherif Bassiouni, A Draft International Criminal Code & Draft Statute for an International Criminal Tribunal (1987) M. Cherif Bassiouni, From Versailles to Rwanda in 75 Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 1 (1996) M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768–818 (1990) M. Cherif Bassiouni, International Extradition: United States Law and Practice (4th ed. 2002) M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice (1994) A Manual on International Humanitarian Law and Arms Control Agreements (M. Cherif Bassiouni ed., 2000) International Criminal Law: Crimes (M. Cherif Bassiouni ed., 2d rev. ed. 1999) International Criminal Law: Procedural and Enforcement Mechanisms (M. Cherif Bassiouni ed., 2d rev. ed. 1999) International Criminal Law: Enforcement (M. Cherif Bassiouni ed., 2d rev. ed. 1999) M. Cherif Bassiouni, International Criminal Conventions and their Penal Provisions (1997) M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court,32 Cornell Int’l L.J. 443 (1999). Post-Conflict Justice (M. Cherif Bassiouni ed., 2002) The Statute of the International Criminal Court: A Documentary History International Terrorism: Multilateral Conventions 1937–2001 (2002) International Terrorism: A Compilation of

cxiv  Documents

table of abbreviations

U.N. Documents (1972–2001) (M. Cherif Bassiouni ed., 2002, 2 vols.) Bassiouni & Nanda A Treatise on International Criminal Law  Treatise (M. Cherif Bassiouni & V.P. Nanda eds., 1973, 2 vols.) Bassiouni, Universal M. Cherif Bassiouni, Universal Jurisdiction for Inter Jurisdiction national Crimes: Historical Perspectives and Contem‑ porary Practice, 42 VA. J. Int’l L. 81 (2001) Bassiouni, Yugoslavia M. Cherif Bassiouni (with the Collaboration  Tribunal Bevans of Peter Manikas), Treaties and other International Agreements of the United States of America, 1776–1949 (C.F. Bevans ed., 1970, 13 vols.) BSP British and Foreign State Papers CCL 10 Allied Control Council Law No. 10, Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Jan. 31, 1946, reprinted in 1 Ferencz 488, 1 Friedman 908 CE Council of Europe Commission of Experts on Commission of Experts Established Pursuant to  Former Yugoslavia Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780 (1992) EU European Union The Eichmann Case Attorney Gen. of Israel v. Eichmann, 36 I.L.R. 18, 39, (Isr. Dist. Ct.-Jerusalem 1961), aff’ d, 36 I.L.R. 277 (Isr. Sup. Ct. 1962) Eur. Ct. H.R. European Court of Human Rights Eur. T.S.-(Also) E.T.S. European Treaty Series ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 218 U.N.T.S. 221, E.T.S. No.5 Far Eastern Commission Activities of the Far Eastern Commission, Report by  Report the Secretary General, February 26-July 10, 1947, 16 DEP’T ST. BuLL. 804–06 (1947) Far East Military Trials held in connection with the post-World  Proceedings War II Far East Military Activities conducted by: (a) the United States, as special military trials; and (b) other coun­ tries including Great Britain, Soviet Union, China, Netherlands, Australia and other Commonwealth nations Final Report, Commission Final Report of the Commission of Experts Established



table of abbreviations

 of Experts

Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, Annex, U.N. Doc. S/1994/674 (27 May 1994) (See also, Annexes to Final Report of Yugoslavia Commission of Experts) Foreign Sovereign Immunities Act, 28 u.s.c. §§ 1602–11 (1994) General Assembly (U.N.) General Assembly Official Records

FSIA

cxv

G.A. (U.N.) GAOR  (see also U.N. GAOR) G.A. Res. (U.N.) General Assembly Resolution  (see also U.N. G.A. Res.) Hudson International Legislation (Michael Hudson ed., 1972) ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) ICC Draft Statute Report of the Preparatory Committee on the Estab‑ lishment of an International Criminal Court, A/ Conf.183/2/ Add.1 (1998) ICC Statute Rome Statute of the International Criminal Court, A/ Conf.183/9, July 17, 1998 I.C.J. International Court of Justice I.C.J. Reports International Court of Justice Reports I.C.J. Statute Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179 ICL International Criminal Law ICRC International Committee for the Red Cross ICTR International Criminal Tribunal for Rwanda ICTR Statute International Tribunal for Rwanda, S.C Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994) ICTY International Criminal Tribunal for Yugoslavia ICTY Statute International Criminal Tribunal for Yugoslavia, S.C. Res. 808, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/808 (1993) IHL International Humanitarian Law IHRL International Human Rights Law ILC International Law Commission ILC’s Nuremberg Affirmation of the Principles of International Law

cxvi  Principles

I.L.M. IMO IMT (Also Nuremberg  Charter, Nuremberg  Trials, and London  Charter)

IMTFE (see also Tokyo  Trials and Tokyo  Charter) IMTFE IMTFE Proclamation Law of the Charter Leipzig Trials

LIA Lieber Code

table of abbreviations Recognized by Nuremberg Principles the Charter of the Nuremberg Tribunal, Dec. 11, 1946, U.N. G.A. Res. 95(1), U.N. GAOR (Part II) at 188, U.N. Doc. A/64/ Add. 1(1946), reprinted in 2 Friedman 1027; Schindler/Toman 833 International Legal Materials International Maritime Organization The International Military Tribunal at Nuremberg, created by the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945; Charter of the International Military Tribunal, 59 Stat. 1544, 1546, 82 U.N.T.S. 279, 284 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, E.A.S. No. 472, reprinted in 39 Am. J. Int’l L. 257 (1945) (Supp.), 1 Ferencz 454, 1 Friedman 883, Schindler/ Toman 823 International Military Tribunals for the Far East Special Proclamation: Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, at 3, 4 Bevans 20 Charter for the International Military Tribunal for the Far East, Apr. 26, 1946, T.I.A.S. No. 1589, at 11, 4 Bevans 27. (See also Tokyo Charter below) Special Proclamation: Establishment of a Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, at 3, 4 Bevans 20 Refers to: (a) London Agreement and the Charter; (b) Indictments, Proceedings and Judgment of the International Military Tribunal at Nuremberg The trials of German war criminals after World War I held before the German Supreme Court (Reichsgericht) Sitting at Leipzig. See generally Claud Mullins, The Leipzig Trials (1921); see also 16 Am. J. Int’l L. 696 et seq. (1922) London International Assembly, The Punishment of War Criminals: Recommendations of the London International Assembly (1944) U.S. Dept. of War, Instructions for the Government of the Armies of the United States in the Field, Gen-



LNTS London Charter LRTWC Martens MLAT Moscow Declaration

MOU Müller-Rappard &  Bassiouni, European  Inter-State  Cooperation NGO Nuremberg Indictment Nuremberg Judgment Nuremberg Principles

table of abbreviations

cxvii

eral Orders No. 100 (1863), reprinted in 1 Friedman 158 League of Nations Treaty Series See IMT Law Reports of Trials of War Criminals Martens Nouveau Recueil Général des Traités Mutual Legal Assistance Treaty The Moscow Conference, Oct. 19–30, 1943 (Declaration of German Atrocities, Nov. 1, 1943), 1943 FoR. REL. (I) 749, reprinted in 38 Am. J. Int’l L. 3 (Supp.); 3 Bevans 816 Memorandum of Understanding European Inter-State Cooperation in Criminal Matters (Ekkehart Miiller­ Rappard & M. Cherif Bassiouni eds., 2d rev. ed. 1992)

Non-Governmental Organization 1 IMT 27 1 IMT 171 Principles of the Nuremberg Tribunal1950, Report of the ILC, (Principles of International Law Recognized in the Tribunal), July 29, 1950, U.N. GAOR, 5th Sess., Supp. (No. 12) 11, U.N. Doc. A/1316 (1950), reprinted in 4 Am. J. Int’l L. 126 (1950) (Supp.); 2 Ferencz 235 Nuremberg Proceedings Trial of the Major War Criminals Before the International Military Tribunal (Secretariat of the International Military Tribunal ed., 1947) OAS Organization of American States OAU Convention OAU Convention for the Elimination of Mercenaries in Africa, OAU Doc. Cm/433/Rev.L. (1972) OLA United Nations Office of Legal Affairs Tadíc Case The Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-1-T, 7 May 1997 Parry’s The Consolidated Treaty Series (C. Parry ed., 1969 & Supp., 231 vols.) P.C.I.J. Permanent Court of International Justice PCIJ Statute Statute of the Permanent Court of International Justice, 1926 P.C.I.J. (Ser. D) No.1 Post-Charter Legal Refers to:  Developments (a) Affirmation of Nuremberg Principles; (b) Genocide Convention; (c) ILC Nuremberg Principles; (d) U.N. Non­ Applicability of Statutory

cxviii

table of abbreviations

Limitations to War Crimes; (e) Resolutions on War Criminals, Dec. 15, 1970, U.N. G.A. Res. 2583 (XXIV), reprinted in 1 Friedman 754; (f ) Apartheid Convention; (g) International Co-operation in Extradition; (h) European Non-Applicability of Statutory Limitations to War Crimes Potsdam Conference The Berlin (Potsdam) Conference (Protocol of Proceedings), Aug. 2, 1945, 1945 FoR. REL. Conference of Berlin (Potsdam II) 1499, reprinted in 3 Bevans 1207; 39 Am. J. Int’l L. 245 (1945) (Supp.) ICC Preparatory The Preparatory Committee on the Establishment  Committee of an International Criminal Court Recueil Des Cours Recueil des Cours de l’Académie de Droit International de la Haye Red Cross Report 1 International Committee of the Red Cross, Report on the International Committee of the Red Cross on its Activities During the Second World War (1948) ICC Ad Hoc Committee Report of the Ad Hoc Committee on the Estab‑ lishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc A/50/22 Report of Robert H. Jackson U.S. Dep’t of State, Pub. No. 3080, Report of Robert H. Jackson Res. (U.N.) Resolution Resolution on Aggression Resolution on the Definition of Aggression, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631 (1975) RIDP Revue Internationale de Droit Penal S.C. (U.N.) Security Council SCOR(U.N.) Security Council Official Records Stat. United States Statutes at Large Subsequent Proceedings Proceedings by the Allied Powers held pursuant to  (see also CCL NO. 10 Control Council Law No.lO, (Punishment of Per Trials) sons Guilty of War Crimes, Crimes Against Peace and Against Humanity), Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, Jan. 31, 1946, reprinted in 1 Ferencz 488, 1 Friedman 908. The Proceedings involved 12 Trials: (a) The Einsatzgruppen Case; (b) The I.G. Farben Case; (c) The Flick Case; (d) The High Command Case; (e) The Hostage Case;



table of abbreviations



(f) The Justice Case; (g) The Krupp Case; (h) The Med‑ ical Case; (i) The Milch Case; G) The Ministries Case; (k) The Pohl Case; (1) The Rusha Case (U.S.) Treaties and Other International Acts Series International Military Tribunal for the Far East: (a) Proclamation by the Supreme Commander for the Allied Powers, Jan. 19, 1946, T.I.A.S. 1589, reprinted in 4 Bevans 20, 1 Ferencz 522 (1975), Friedman 894; (b) Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. 1589, reprinted in 1 Ferencz 523, 1 Friedman 895 (See also IMTFE) International Military Tribunals for the Far East; Trial of the Major War Criminals, Proceedings of the International Military Tribunal for the Far East at Tokyo; reprinted (excerpts) in 4 Bevans 20; 2 Ferencz 522 (1975); compiled in The International Military Tribunals for the Far East (R. John Pritchard & Sonia M. Zaide eds., 1981, 21 vols.) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39I 46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, draft reprinted in 23 I.L.M. 1027 (1985), with final changes in 24 I.L.M. 1027 Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles), June 28, 1919, 11 Martens Nouveau Recueil (ser 3) 323, reprinted in 2 Bevans 43, 1 Friedman 417 (U.S.) Treaty Series United Nations United Nations International Drug Control Program UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted Nov. 14, 1970, 823 U.N.T.S. 23, reprinted in 10 I.L.M. 289 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) United Nations Document

T.I.A.S. Tokyo Charter

Tokyo Trials  (see also IMTFE)

1984 Torture Convention

1919 Treaty of Versailles

T.S. U.N. UNDCP UNESCO

UNWCC

U.N. Doc.

cxix

cxx

table of abbreviations

U.N.T.S. Universal Declaration

United Nations Treaty Series Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III) United States United States Treaty Series World War I World War II

u.s. U.S.T. WWI WWII

Introduction to the second Edition International Criminal Law (ICL) made its debut on the U.S.’s academic scene in the late 1960’s through the works of the late Professors Gerhard O.W. Mueller and Edward M. Wise, and I followed in their footsteps, as did many others since then. In the last two decades ICL has grown significantly. An example of this is the expansion in course offerings in the subject. In the 1970’s only three American law schools regularly offered a course in ICL (New York University, Wayne State and DePaul), presently more than 30 do. The number of law schools offering basic and graduate courses on ICL in Europe and elsewhere surpasses those offered in the U.S. Another indicator of the field’s growth are the hundreds of books and articles published annually on ICL published in more than 30 languages, many of which contain doctoral dissertations and masters’ theses. Last, but not least, is the establishment of several international and mixed-model tribunals in the last two decades, which are described in Chapters VI and VIII, and the International Criminal Court, which is described in Chapter VII.1 ICL is the primary international legal regime that addresses the atrocities of war and other forms of inter-social conflict in the hope of providing accountability, which in turn is expected to lead to the prevention of conflict and to the enhancement of peace prospects. But this is not an easy task. Between the end of WWII and 2008 there were 313 conflicts which resulted in an estimated 92 to 101 million casualties.2 In 126 of these conflicts, amnesties were grated, and few prosecutions were initiated.3 Based on these numbers it is hard to conclude that ICL has had a significant deterrent effect. For deterrence to work more perpetrators must be brought to account, and clearly amnesties must be eliminated for the perpetrators of core international crimes and for those individuals

1   M. Cherif Bassiouni, 1–3 The Legislative History of the International Criminal Court (2005). 2 M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability and Impunity, in The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and PostConflict Justice 3, 11 (M. Cherif Bassiouni, ed., 2010). 3 See Chapter XII for a quantitative survey of the post WWII tribunals from the IMT to the STL. These individuals were prosecuted for the major international crimes: “Crimes Against Peace”, which was only applied during the post-WWII proceedings; “War Crimes” and “Crimes Against Humanity”, which have been prosecuted since WWII; and “Genocide” which has been applied since 1995. In some instances, as before the Extraordinary Chambers in the Courts of Cambodia, national crimes are also brought against the defendants. National prosecutions have been few, but they have been on the increase recently. The caselaw and treaties in this book are current through July 2012.

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responsible for bringing about these situations. The deterrent value of ICL must be enhanced to limit human harm, material destruction and the disruption of peace. It is shocking that less than one percent of the victims of these crimes have received any form of redress or compensation.4 But international criminal justice (ICJ) has always been controlled by realpolitik, as discussed in Chapters XI and XII.5 The latter has only allowed so much of the former to take place, and then always under controlled conditions. Since the 1960’s, ICL has also developed in response to the increased number of inter-state and cross-boundary crimes such as: drug, human and arms trafficking; “terrorism”; piracy; and what falls into the ever-growing realm of “organizedcrime” activities. National responses to these and other forms of criminality in this transitional era from internationalization to globalization have given a notable impulse to ICL. Suffice it to mention that there are more than 3,000 bilateral extradition treaties in effect, and there has been a significant growth in multilateral treaties criminalizing certain types of conduct and addressing modalities of international cooperation in penal matters at the national, regional and international levels. The growth and expansion of international and national human rights protections have also impacted ICL through the criminalization of violations of fundamental human rights, providing for victims’ rights (including accountability),6 and by means of establishing standards for fairness and due process for international and national criminal proceedings as discussed in Chapter IX. All of that leads to the conclusion that ICL is alive and well, and by all appearances is here to stay, though no one knows how it will evolve in the era of globalization.7 To understand ICL it is necessary to track its origins and growth. The early writers on ICL were European—they came from the discipline of criminal law, and their methodological approaches to ICL reflected it.8 They saw it as essentially consisting of the theories and applications of inter-state conflicts of 4 Bassiouni, supra note 1. 5 See M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l L. 269 (2010); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Real‑ politik, 22 Ga.St.U.L.Rev. 541 (2006); M. Cherif Bassiouni, Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191 (2003); M. Cherif Bassiouni, Searching for Justice in the World of Realpolitik, 12 Pace Int’l L. Rev. 213 (2000). 6 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005); M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev 203 (2006). 7 M. Cherif Bassiouni, The Future of Human Rights in the Age of Globalization, 40 Denver J. Int’l L. & Pol’y 22 (2012). 8 See Henri F. Donnedieu De Vabres, Introduction a l’Etude du Droit Penal International (1922); Henri F. Donnedieu De Vabres, Les principes Modernes du Droit Penal International (1928); Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910). See also Chapter I, note 1.



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criminal jurisdiction. This was in large part a result of: colonial states extending their criminal jurisdiction beyond their borders; cross-boundary anarchists’ violent attacks which started to be referred to as “terrorism”; and, the opium trade from China into Europe. These and other cross-boundary criminal manifestations of crime contributed to the growth of extraterritorial national criminal legislation in European states. In the wake of WWI a number of European international law experts started writing about the criminal responsibility of the German Kaiser, war crimes, and the emerging doctrine of “crimes against the laws of humanity”9—all of which resulted from the provisions of the 1919 Treaty of Versailles and the 1923 Leipzig Trials,10 which are discussed in Chapter VI. Individual international criminal responsibility for international crimes thus emerged, but was only perfected after WWII. As discussed in Chapter VI, during WWII the Allies agreed, on the basis of the 1942 Declaration of St. James and the work of the London International Assembly, to proclaim the 1943 “Moscow Declaration” on war crimes responsibility. This led to the London Conference of the Four Major Allies who on August 8, 1945 produced a treaty containing the Charter of the International Military Tribunal Charter (IMT), which was located at Nuremberg. After the IMT came the International Military Tribunal for the Far East (IMTFE) in 1946, established by virtue of an order issued by Supreme Allied Commander for the Far East, General Douglas MacArthur, which was situated in Tokyo. In turn, each one of these institutions led the way for national prosecutions by Allied Powers in their respective zones of occupation in Europe and in the Far East.11 These efforts were driven by a few individuals, many of whom were lawyers and members of the military, who did not arrive at the need for establishing international criminal justice from an academic or doctrinal perspectives, but from the simple perspective of common sense justice.12    9 M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application, ch. 1 (2011). 10 M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244; Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (2004); Gerd Hankel, Die Leipziger Prozesse (2003); Claude Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921). 11   See Chapter XII for more information. 12 Justice Jackson expressed as much at his eloquent opening statement at Nuremberg, when he explained that the IMT, “is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times aggressive war.” Transcript of Robert Jackson’s Opening Statement, Nov. 21, 1945, in 2 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946 98 (1947). For the U.S., the leading figures in the prosecution of Nazi criminals were Justice Robert Jackson and Brigadier-General Telford Taylor. See Robert H. Jack-

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These tribunals and their jurisprudence were the source of many writings in Europe, the United States, and elsewhere on the emerging discipline of ICL. But they were subject specific. Still, there was no connection between the writings of penalists and internationalists on these topics. The two had not yet found a theoretical or even a practical basis for convergence. They dealt with the post WWII experiment and the crimes for which a number of persons were prosecuted in several states. Much of these writings’ focus was on international criminal responsibility and related aspects which brought about a paradigm shift from existing conceptions of state sovereignty that led to the recognition of the individual as a subject of international law. It was that paradigm shift that led to the development of the field of international human rights law. Thus, the individual went from an object to a subject of international law, and from being a subject of international criminal responsibility to being the subject of internationally proclaimed human rights—both being directly applicable to states. In other words, states could no longer shield individuals from international criminal responsibility for certain international crimes and they cannot infringe upon certain fundamental human rights of individuals, whether domestically or internationally. But since then the struggle between international criminal justice and realpolitik has been ongoing.13

son, The Nurnberg Case (1971); Report of Robert H. Jackson, United States ­Representative to the International Conference on Military Trials (1949); Telford Taylor, The Anatomy of The Nuremberg Trials (1992). 13 Since the end of WWI, realpolitik has not blatantly or openly opposed international criminal justice. Instead realpolitik has resorted to coopting and controlling ICJ, thus giving ICJ enough latitude to operate in order to satisfy the demands of the international community and what is referred to as international civil society, while at the same time controlling the process. In that respect, the amount of space left to ICJ in a particular situation depends on the forcefulness of the constituencies pushing for it. Accordingly, the amount of pressure exerted on the realpolitik system to implement ICJ in different situations accounts for the differences in standards and levels of accountability in post-conflict justice situations. Two pertinent examples of this are the recent ICC referrals by the Security Council (S.C.) of the situations in Libya and the Darfur, Sudan. When it suited their interests, the S.C. referred these matters for investigation, but when political interest waned there was no interest on the part of the S.C. to enforce the arrest warrants issued by the ICC. In assessing the impact of realpolitik, it is important to remember that it can only be effective in so far as it does not obviously control the situation in order not to attract public attention. The question is where the line is drawn between the ideals of ICJ on the one side and what is politically acceptable in any given context on the other. The British historian E.P. Thompson remarked in his analysis of repressive 18th century English laws and courts that: “If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just.” E.P. Thompson, Whigs and Hunters: The Origin of the Black Act 263 (1975). Thompson’s analysis is relevant to the realpolitik of international affairs and the selective application of ICJ. See also supra note 5.



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The post-WWII recognized international crimes of aggression, genocide, war crimes and crimes against humanity were the subject of many academic writings and debates, but these came mostly from an international law perspective, and these discussions remained largely unconnected from the overall nature of the emerging discipline of ICL. It was not until well into the 1950s that this new discipline started to take some doctrinal shape as a discipline of its own, though with much opposition by both internationalists and penalists who approached it from their respective disciplines, and thus from different methodological perspectives.14 Though proponents of ICL from these two disciplines wrote about the same or related subject, it was a truncated approach which emphasized different aspects of ICL, reflecting the different approaches and separate methods and goals of the two major respective disciplines and their related legal regimes as described in Chapter I. The beginning of a merger of these two disciplines did not start until the 1970s, and even then it was tentative.15 In Europe, it was still the penalists who were at the forefront of ICL, while in the U.S. and the U.K. it was mostly internationalists who led the way. But none of the proponents of ICL relied on a doctrinal framework or a methodology that combined the approaches of international law, comparative criminal law and procedure, and international human rights law. Instead, the new emerging discipline was a juxtaposition of different subjects whose exposition reflected alternatively, one or the other of the two principle disciplines and their respective legal norms. In short, as described in Chapter I, the process could be characterized as a rapprochement between two major disciplines with differing methodological approaches and with a limited area of common interests deriving from certain commonly shared values and commonly shared value-oriented goals of justice and peace. But that rapproche‑ ment works best with respect to what is now referred to as “core international crimes” (aggression, genocide, war crimes and crimes against humanity), and not

Along a different but related track, the UN’s Human Rights Council (HRC) has established a number Commissions of Inquiries (CoI), Fact Finding Missions and Special Procedure mandates since 2005, but other than adopting resolutions pertaining to their reports, there have been few actions taken to implement their recommendations. Without being too much of a skeptic one can conclude that there is enough activity and movement in the direction of ICJ to satisfy those who demand it, though obviously this is not enough to make ICJ an effective system, as discussed in Chapters X, XI and XII. Proponents of ICJ remain hopeful that all such developments will produce an accretion affect which will be difficult to ignore in the future. In the meantime a balance seems to have been established between proponents of ICJ and those of realpolitik. See supra note 5. 14 For a critic of ICL, see Georg Schwarzenberger, The Problem of International Criminal Law, 3 Cur. Legal Probs. 263 (1950). 15 This was reflected in 1 A Treatise on International Criminal Law: Crimes and Punishment (M. Cherif Bassiouni and Ved Nanda, 1973); 2 A Treatise on International Criminal Law: Jurisdiction and Cooperation (M. Cherif Bassiouni and Ved Nanda, 1973).

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with respect to what is called “transnational crimes” (drug, human and arms trafficking, organized crime activities, cyber-crime, “terrorism” and piracy). There is, however, a more effective rapprochement between internationalists and penalists with respect to international cooperation in penal matters (extradition, international legal assistance, etc.), which apply to all international and transnational crimes, as discussed in Chapter V on the “indirect enforcement system”, and inter-state cooperation at the bilateral level and as between states and international judicial institutions, as discussed in Chapters VI, VII and VIII on the “direct enforcement system”, the ICC and mixed-model tribunals. Parallel to these doctrinal developments, ICL also developed out of the jurisprudence of international criminal tribunals, namely the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the six mixed-model tribunals, as discussed in Chapters VI and VIII. This jurisprudence, however, emerged out of ad hoc institutions with ad hoc statutes, and the exigencies of wars. It was essentially pragmatic, not to say experiential, and it did not emerge from a doctrinal framework or follow a particular legal method. Instead, it reflected pragmatic responses needed to address ad hoc exigencies by ad hoc institutions. They were all in some respects conditioned by the political will of the major powers that directed these institutions by controlling their structures, personnel, and resources as well as by selecting their judges. The last 50 years have witnessed a plethora of scholarly and practical writings on ICL, which is evident in the Table of Authorities in this book. Still, it is hard to find anything more than the outlines or sketches of a theory of ICL in some of these writings. To some extent, this is explained by the inherent difficulty of combining multiple disciplines into a single new one, as discussed in Chapter I. In my previous writings, I attempted to shape such a discipline into something more coherent than what my colleagues and fellow travelers of ICL wrote about. But it was not an easy undertaking and this Second Edition continues to offer a doctrinal framework for ICL that reflects a mixed methodology combining the different disciplines comprising the subject. My goal is to contribute to making ICL a distinct discipline that merges, combines, and relies upon multiple disciplines and their respective legal regimes, even when they are not compatible with one another. This approach will therefore not satisfy the purists among penalists and internationalists whose respective methods remain separate and distinct. The approach I bring to this discipline is a flexible, multi-disciplinary one, which borrows from the multiple sources of ICL in order to form a more or less cohesive whole that is capable of evolving as time progresses and whose common denominators are certain common values and interests and the shared value-oriented goals of justice and peace. Chapter I covers the sources of ICL and their application to the different components of ICL. While some may see this as lacking in coherence, it is unfortu-



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nately the nature of the beast. ICL is neither fish nor fowl but both, depending upon which component of ICL is examined. Moreover, because ICL has been shaped by the experiences of international criminal tribunals, it defies the congruence necessary to a coherent doctrinal framework that can satisfy the methods of the different legal disciplines of which it is composed. Beyond this, Chapter I identifies the values and policies of ICL, a topic which is also covered in Chapters X and XI. Chapter II identifies the subjects of that discipline, something which penalists refer to as the ratione personae. It necessarily includes the responsibility of these subjects, and thus it includes the question of non-applicability of the international law of immunities, including for heads of state, diplomats, and officials on missions. It emphasizes the expanding policies of command responsibility and group criminal responsibility. From a domestic criminal law perspective these questions fall in the general part, which is discussed in Chapter IV. However, because of the mechanisms by which certain persons became subjects of ICL that question also had to be included in Chapter II. Lastly, this chapter contains a section on victims as subjects of ICL, which is a new topic of inquiry for ICL proponents. Victims are usually included in the human rights and public international law literature, and are only slowly becoming part of ICL as well. Chapter III covers international crimes, which for penalists is the ratione mate‑ riae of criminal law. This is probably the most complex aspect of ICL because of the haphazard manner in which international crimes have developed since the 17th century, when piracy was first recognized as an international crime. I address this topic on the basis of a theory I developed in my prior writings which categorizes and classifies international crimes. It is based on an empirical study of 271 conventions between 1815 and 2007, which have been catalogued in 27 categories of crimes16 based on ten penal characteristics.17 Penalists may find 16 (1) Aggression; (2) Genocide; (3) Crimes against humanity; (4) War crimes; (5) Unlawful possession, use, emplacement, stockpiling and trade of weapons, including nuclear weapons; (6) Nuclear terrorism; (7) Apartheid; (8) Slavery, slave-related practices, and trafficking in human beings; (9) Torture and other forms of cruel, inhuman or degrading treatment; (10) Unlawful Human Experimentation; (11) Enforced disappearance and extrajudicial execution; (12) Mercenarism; (13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) Aircraft hijacking and unlawful acts against international air safety; (15) Threat and use of force against internationally protected persons, and United Nations personnel; (16) Taking of civilian hostages; (17) Use of Explosives; (18) Unlawful use of the mail; (19) Financing of terrorism; (20) Unlawful traffic in drugs and related drug offenses; (21) Organized crime and related specific crimes; (22) Destruction and/or theft of national treasures; (23) Unlawful acts against certain internationally protected elements of the environment; (24) International traffic in obscene materials; (25) Falsification and counterfeiting; (26) Unlawful interference with international submarine cables; and, (27) Corruption and bribery of foreign public officials. See Chapter III. 17 They are: (1) Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime; (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like; (3) Criminalization of the proscribed conduct; (4) Duty or right to prosecute; (5) Duty or right to

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fault with it, but it reflects what is and not what should have been. The fundamental problem is that there is neither an international legislative policy nor any coherence or continuity in the process of formulating international crimes. Each of the 27 categories has evolved separately from the others, with very little cross-over experience in the legislative process that characterized each one of them. Consequently, it is impossible to describe these crimes other than in a way that reflects their ad hoc historical evolution. An evolution that reflects real‑ politik. How else can one explain the exclusion of social and political groups from the Genocide Convention? The answer is that in 1948 Stalinist purges were ongoing which targeted social and political groups that opposed the regime and are estimated to have resulted in 20 million deaths in the USSR. There was no way the Genocide Convention would criminalize the USSR’s conduct. Why the convention was not amended after since its inception also raises questions of a political nature, as does that fact that the ICC’s definition of genocide was similarly not expanded.18 Throughout that description however, I have attempted to explain the reasons for this evolution. In the end I offer my views on the classification of these crimes with the hope that it will bring future order to an area that developed without any order. Since there is no international criminal code that deals systematically with these crimes, they can only be addressed in a way that reflects their de facto existence in ICL, which, as stated above, is not predicated on a legislative policy or method, but on historical necessity, political opportunity, and in some cases thanks to the dedication and commitment of a few whose tenacity made a difference. Among them are: Henri Dunant, who in 1862 set in motion what would become the Geneva Conventions; Vespasian Pella, who at the League of Nations brought about the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism and a second Convention for the Creation of an International Criminal Court to enforce the first; Justice Robert Jackson, who was a prime architect of the IMT; Raphael Lemkin, persevered in bringing about the Genocide Convention; more recently a group of jurists who are pushing for a Convention on Crimes Against Humanity;19 and last but not least are the efforts of the Association Internationale de Droit Pénal (International Association of Penal Law) which since 1924 has been a constant promoter of the establishment punish the proscribed conduct; (6) Duty or right to extradite; (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance); (8) Establishment of a criminal ­jurisdictional basis; (9) Reference to the establishment of an international criminal court or international tribunal with penal characteristics; (10) No defense of superior orders. See Chapter III. 18   See M. Cherif Bassiouni, 1 The Legislative History of the International Criminal Court:  Introduction, Analysis, and Integrated Text of the Statute, Elements of Crimes and Rules of Procedure and Evidence (2005). 19   Forging a Convention for Crimes Against Humanity (L. Sadat, ed., 2011). 



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of a permanent international criminal court.20 These are only a few examples. But history is at times forgetful of past individual efforts, particularly when new contributors seek to appropriate greater credit for newer developments. Past contributors must be recognized because not only is it proper to do so but because it is part of the phenomenology of the discipline’s evolution—ICL is still more driven by individuals than by states or international structures. In fact, ICL is still a discipline in which an individual can make a difference—and that we must applaud and encourage. The table of authorities lists so many of them. Chapter III also discusses principles of legality, which penalists consider within the general part of domestic criminal law. But that question was necessarily included in this chapter because it relates so closely to the manner in which the definition of international crimes is formulated. The principles of legality also address the question of penalties, but the topic of penalties is included in the discussion of the general part of ICL in Chapter IV since no ICL convention contains specific penalties, which are left for domestic criminal legislation. It should be noted that ICL conventions are drafted by diplomats and internationalists, and only very few penalists participate in the process. This explains why ICL conventions contain so few criminal law provisions. But that is also due to the fact that the drafters of ICL conventions rely on the “indirect enforcement system” described in Chapter V. Under that system states are expected to incorporate ICL conventions into their domestic criminal laws and thereby conform the requirements of the ICL conventions to their domestic legal requirements. Chapter IV deals with the general part of ICL, which, according to penalists, includes principles of criminal responsibility and conditions of exoneration from criminal responsibility. Because of the assumption that states will address these questions when they domesticate ICL conventions into their national legislation, these questions are not usually addressed in ICL conventions. But these questions arise before international and mixed model tribunals, as described in Chapters VI, VII and VIII. Since there is no international criminal code, these questions can be gleaned from the contents of statutes establishing international criminal tribunals and from these respective tribunals’ jurisprudence. Yet these statutes have scarce provisions on the general part, and the jurisprudence of these tribunals is, as stated above, far from satisfactory on this topic. The overall situation is probably due to the fact that the internationalists who drafted these statutes had scant knowledge of comparative criminal law and the judges on these tribunals have also been, for the most part, internationalists, and whose experience in comparative criminal law has been limited. Even the statute of the 20 José Luis de la Cuesta and Reynald Ottenhof, Introductory note: the association internationale de droit penal and the establishment of the international criminal court, 81  Revue internationale de droit pénal 13 (2010).

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International Criminal Court (ICC), which is discussed in Chapter VII, reveals weaknesses in its general part. Even though, as stated above, no ICL convention contains penalties, international criminal tribunals have necessarily meted out penalties. While some of the statutes establishing international criminal tribunals refer to penalties, these provisions lack specificity. This raises questions about their compliance with the principles of legality, which is also discussed in Chapter III. The judgments of these tribunals reflect the practice of penalties in ICL. The section on penalties in Chapter IV also refers to the norms and standards of international human rights law applicable to penalties, including the limitations on “cruel, inhuman and degrading punishment or treatment” prohibited by such norms. But it does not go into the specifics of these limitations because this would have expanded the scope of this section beyond its intended purpose, which is limited to the description of penalties. Chapter V addresses the “indirect enforcement system”, which is the principal method of enforcement of ICL. The “indirect enforcement system” presupposes that ICL norms are to be enforced by states through their domestic criminal laws, and prescribes the cooperation of states in penal matters. The modalities of such cooperation are the same as those employed by states in bi-lateral inter-state cooperation in penal matters with respect to domestic criminal law violations. The “indirect enforcement system” thus reveals the vulnerabilities of ICL, as it depends on national criminal justice systems. The more effective international cooperation in penal matters can be between states and international tribunals, including the ICC, the more effective ICL enforcement will become. Mutatis mutandi, the less effective national cooperation becomes, the less effective ICL enforcement will be. There is another enforcement system in ICL, the “direct enforcement system”, which is addressed in Chapter VI. It describes the history and evolution of international criminal justice up to the ICC, which is, however, separately discussed in Chapter VII as a “hybrid” direct enforcement mechanism. The development of the direct and hybrid enforcement institutions discussed in Chapter VI, namely the ICTY and the ICTR, and Chapter VII concerning the ICC evidences these institutions’ benefit from each other’s experiences. Those who pioneered the ICTY and ICTR, and the six mixed model tribunals21 deserve credit as they sailed into uncharted waters and affirmed the existence of international justice. There are those, including myself, who have raised questions about doctrine, methods, costs and other matters, but that should not be interpreted as diminishing 21 They are the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Panels for Serious Crimes (East Timor), the War Crimes Chamber in the Courts of Bosnia and Herzegovina, the “Regulation 64” Panels (Kosovo), and the Special Tribunal for Lebanon.



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the accomplishments that were made in only two decades. Those who worked to bring about these institutions, and those that make them work deserve our praise and recognition, notwithstanding some critical assessments.22 Without these institutions and their operators at all levels, ICL would not be where it is, and we could not build on these experiences for the future. Chapter VIII addresses a new development in ICL, namely, enforcement through hybrid systems of international and national criminal justice. They are referred to as “mixed model” tribunals. These institutions are created in part by international law, but they function as domestic legal institutions. At present there have been six such mixed model courts. These institutions also developed 22 ICL prosecutions since WWII include the International Military Tribunal at Nuremberg, where 22 Germans were tried by the 4 Major Allies and the International Military Tribunal for the Far East at Tokyo, where 28 Japanese were tried. It also includes proceedings by the 4 Major Allied Powers in their respective Zones of Occupation in Germany pursuant to Control Council Law No. 10 and their own military codes. The U.S. conducted 12 notable trials against 185 individuals at Nuremberg, which they referred to as the Subsequent Nuremberg Proceedings; others trials were held at Dachau and other places. In total, the U.S. convicted 1,814 Germans in the American Zone. The USSR convicted as many as 45,000 in the Soviet Zone, although the numbers are not exactly clear. The U.K. convicted 1,085 in the British Zone. Finally, France convicted 2,107 in the French Zone. In the post-WWII period domestic prosecutions were also carried out including 541 in the U.K., 271 in France, 275 in Australia, 35 in The Netherlands, 25 in Poland, 11 in Norway, 5 in Canada, 2 in China, and 1 in Greece. In the Far East, the various Allies conducted independent trials against Japanese under their military codes, including: U.S. led trials in Yokohama and the Philippines convicted 1,229 Japanese; Chinese trials convicted 504; British trials convicted 777; Dutch trials convicted 969; French trials convicted 198; Philippine trials convicted 133; and Australian trials convicted 844. Since the end of the Cold War there have been three direct enforcement tribunals and six mixedmode tribunals. Of the direct enforcement tribunals, the ICTY indicted 161 individuals, the ICTR indicted 91 individuals, and the ICC indicted 28 individuals. Of the mixed-model tribunals, the Special Panels for Serious Crimes (East Timor) tried 87 individuals (but indicted 392); the Regulation 54 Panels (Kosovo) tried 37 through 2009, the SCSL tried 9 (but indicted 13); the ECCC indicted 5 and is investigating 5 more; the War Crimes Chamber in Bosnia and Herzegovina indicted 191; and the STL indicted 4 and is investigating an unknown additional number. See Chapter XII for more information. Any discussion of ICJ prosecutions would be incomplete without mentioning its selectiveness. While the above mentioned prosecutions were justified none of the Allies were prosecuted, despite evidence of their criminality. See Alfred Maurice de Zayas, The Wehrmacht War Crimes Bureau, 1939–1945 (1989). This is why these prosecutions were characterized as victor’s justice or victor’s vengeance. Not a single western Allied soldier was investigated or prosecuted for the firebombing of Dresden or Tokyo, for the nuclear attacks on Hiroshima and Nagasaki, or the crimes committed by Soviet ground forces such as the Katyn Massacre. This pattern continued throughout the Cold War: no French official or soldier was ever prosecuted for crimes in French Indochina or Algeria; no American official or soldier was ever prosecuted for crimes in Vietnam or for arming and training Latin American forces implicated in violations; no Soviet official or soldier was ever prosecuted for crimes in Afghanistan. In the post-Cold War era, the international community has pointedly avoided prosecuting U.S. or British citizens for crimes in Afghanistan or Iraq, and despite some public outrage avoided any serious consideration of the extraordinary rendition process by which individuals are kidnapped, disappeared and tortured. Likewise, it has failed to investigate the implications of the sale of “blood diamonds” that fueled the Sierra Leonean civil war or the coltan and other previous minerals that sustain the ongoing war in the Congo, and stem the sale of small arms around the world. See notes 5 and 13 above on realpolitik.

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in an ad hoc manner, with little similarity to one another. Yet, in some way, each one of them adds to the experience of the other. Chapter IX deals with the procedural aspects of ICL. It necessarily follows the “direct enforcement system”, because these procedures are applicable to international criminal tribunals. In fact, these procedures derive in part from the statutes of these tribunals, though their provisions contain scant procedural norms, with the exception of the ICC. These procedural rules are therefore the product of judicially made rules. The sources of these procedural rules derive from international human rights norms and the world’s constitutional provisions. Cumulatively, they encompass what is commonly referred to as “international due process of law”. They are contained in Section Β of Chapter IX. In Section C the evidentiary rules that have been developed by these tribunals are also examined. These rules of procedure and evidence have been essentially judge-made, and they represent whatever experience these judges have with comparative criminal procedure and comparative criminal evidence. They reveal that a greater weight has been given in the procedural and evidentiary practices of these institutions to weigh the adversary-accusatorial system that characterizes the common law’s experience and how little reliance there has been on the Romanist-Civilist system, frequently referred to as the “inquisitorial system”. Chapters I, VIII and X address the question of complementarity between the international and national systems of criminal justice. The combined descriptions of the new concept of complementarity outline the future of ICL. Chapters I and X reveal the intricate interaction between international law and domestic criminal law, as do Chapters VI and VII on the experiences of the “direct enforcement system”. Chapter X deals with international criminal justice in the age of ­globalization.23 It includes issues of accountability and the struggle of the international community to combat impunity for jus cogens crimes. It also describes contemporary modalities of accountability as alternatives to criminal prosecution, and addresses the values and goals of international criminal justice. It therefore complements Chapters I, XI and XII. Chapters XI and XII expand on the scope of Chapter X, and give an overview of history of international criminal justice and an assessment of its future in the age of globalization. More specifically, Chapter XII provides a review of the historical stages of ICL and a quantitative analysis of the number of prosecutions since WWII, which also serves as an indication of ICL’s deterrent capacity. My own concluding thoughts are that ICL is still in its early stages, and requires a doctrinal framework and methodology even though this is necessarily tenuous 23 Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2003); Ulrich Sieber, Legal Order in a Global World: The Development of a Fragmented System of National, International and Private Norms, 14 Max Plank Yearbook of United Nations Law 1 (2010).



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at this stage of the discipline’s development.24 Attempting to do that is fraught with limitations. But, as with every other legal discipline, there has to be a starting point and this book seeks to accomplish that. Its readers will have to judge the degree to which it achieves this goal. Hopefully, it will stimulate others to expand upon it and to refine it. Until such time comes, it is the best I can offer after 50 years of academic work in this field. In the end, we are always students and we are always learning, and this is not the end of that process. When I started my long journey in the study of ICL skepticism was the order of the day. ICL existed only because some of us taught it and wrote about it. The idea of an international criminal court was deemed utopian—now it is a reality. Tragically every few years events occur that require us to reassess what we have done in the past and what needs to be done to face new exigencies. Human atrocities never seem to reach an end and the reach of criminality expands with globalization—who would have thought a few decades ago that we could witness two million woman and young girls being trafficking for sexual bondage?25 The progress made by ICL over the last two decades outpaces what occurred over the century since writings on the subject appeared. And it is expected that it will continue to grow at an exponential rate. The future of ICL will be driven by the demands for ICJ through international civil society and victims in search of accountability. All that said, the specifics of how ICL will develop and the shape it will take in the age of globalization is an open question. As in the past, events 24 Antonio Cassese, International Criminal Law (2d ed. 2008); 1–3 International Criminal Law (M. Cherif Bassiouni ed., 3d ed. 2008); Ilias Bantekas and Susan Nash, International Criminal Law (2007); Gerhard Werle, Principles of International Criminal Law (2005); Robert Cryer, Prosecuting International Crimes: Selectivity in the International Criminal Law Regime (2005). See also, Chapter I, note 1 for authors listed. 25 Thematic Prosecution of International Sex Crimes (Morten Bergsmo, ed. 2012); In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002); M. Cherif Bassiouni, Enslavement: Slavery, SlaveRelated Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni et al, Addressing International Human Trafficking in Women and Children for Commercial Sexual Exploitation in the 21st century, 81 Revue Internationale de Droit Pénal 417 (2010); Alexis A. Aronowitz, Overcoming the Challenges to Accurately Measuring the Phenomenon of Human Traf‑ ficking, 81 Revue Internationale de Droit Pénal 493 (2010); Johnny McGaha, Systemizing Local and Regional Cooperation Efforts to Combat Sex Slavery, 81 Revue Internationale de Droit Pénal 513 (2010); Antonietta Confalonieri, The Role of the Victim in Administrative and Judicial Proceedings, 81 Revue Internationale de Droit Pénal 529 (2010); Edna Eerz, Women as Victims and Survivors in the Context of Transnational Human Trafficking for Commercial Sex Exploitation, 81 Revue Internationale de Droit Pénal 563 (2010); Duren Banks, The U.S. Human Trafficking Reporting System: Utility and Limitations, 81 Revue Internationale de Droit Pénal 589 (2010); Linda Smith and Samantha Healy Vardaman, The Problem of Demand in Combating Sex Trafficking, 81 Revue Internationale de Droit Pénal 607 (2010); In Modern Bondage: Sex Trafficking in the Americas (David Guinn and Elissa Steglich, eds., 2003); International Human Rights Law Institute, In Modern Bondage: Sex Trafficking in the Americas: Central America, the Caribbean and Brazil (2d ed., 2005); Study on Trafficking in Women, Children and Adolescents for Commercial Sexual Exploitation in Brazil: National Report (Maria Lucia Leal and Maria de Fatima Leal, eds. 2003).

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will drive ICL and not legal doctrine. A prime example of this is the impact of 9/11 on international cooperation in the prevention and suppression of terrorism, and more tragically how that single event drove the U.S., until then a champion of human rights, to institutionalize the policy and practice of torture.26 In the same tragic vein is the complete impunity given by the U.S. to perpetrators of this dehumanizing international crime. This was a step backward that I hope the U.S. and the international community will remedy this situation in the not too distant future. We should not tolerate impunity for international crimes, no matter who commits them. Fortunately there are countervailing examples, such as the establishment of the ICC. That should give us hope. ICL is a genie that has now been released out of its bottle. It will not and indeed can not be put back in. Its future can only be growth as evidenced by the developments described above. But those who will become the new leaders of this discipline will have to be vigilant in the protection of “due process” and the integrity of the “rule of law”. More importantly they should always remember the human values we seek to advance and pass the torch to the next generation. Hopefully this book will provide a basis for others to further advance ICL by enhancing international criminal justice and thus contributing to world peace and security. This is why I conclude the Introduction to the Second Edition with three quotes that I believe should be at the foundation of ICL’s values. From Prophet Mohammed: If you see a wrong, right it; with your hand if you can, or with your words, or in your heart, and that is the weakest of faith. From Pope Paul VI: If you want peace, work for justice. From the Talmud: The world rests on three pillars: on truth, on justice and on peace. Rabban Simeon ben Gamaliel (Abot 1,18) A Talmudic Commentary adds to this saying: The three are really one. If justice is realized, truth is vindicated and peace results.  

M. Cherif Bassiouni Siracusa, June 28, 2012

26 M. Cherif Bassiouni, The Institutionalization of Torture by the Bush Administration: Is Anyone Responsible? (2010).

M. Cherif Bassiouni M. Cherif Bassiouni is Emeritus Professor Law at DePaul University, where he has taught since 1964, and President Emeritus of the International Human Rights Law Institute, which he helped found in 1990. He was one of the founders in 1972 of the International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy, and served as its President since 1988. He is the Honorary President of the International Association of Penal Law after having served three terms as President from 1989–2004. He was a Guest Scholar at The Woodrow Wilson International Center for Scholars in Washington, D.C. in 1972, Visiting Professor of Law, New York University Law School in 1971, Fulbright-Hays Professor of International Criminal Law, The University of Freiburg, Germany in 1970, nonresident Professor of Criminal Law at the University of Cairo from 1996 to 2006, and is a frequent lecturer at universities in the U.S. and abroad. His legal education was in Egypt, France, Switzerland and the United States where he received the following degrees: LL.B. University of Cairo; J.D. Indiana University; LL.M. John Marshall Law School; S.J.D. George Washington University. In addition, he received several honorary degrees from: Doctor of Law honoris causa University of Ghent, Ghent, Belgium (2011); Case Western Reserve University, USA (LL.D.) (2010); Catholic Theological Union, USA (Doctor of Humane Letters) (2009); National University of Ireland, Galway, Ireland (LL.D.) (2001); Niagara University, USA (LL.D.) (1997); Docteur d’Etat en Droit honoris causa, University of Pau, France (1986); Dottore in Giurisprudenza honoris causa, University of Torino, Italy (1981). He is the author of 23 and editor of 44 books on International Criminal Law, Comparative Criminal Law, Human Rights, and U.S. Criminal Law; and the author of 265 articles published in law journals and books in the U.S. and other countries. These publications have been written in Arabic, English, French, Italian and Spanish. Some of them have been cited by the International Court of Justice; the International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the United States Supreme Court; the United States Circuit and Federal District Courts and various State Supreme Courts. Several of his works have been translated into: Arabic, Chinese, Farsi, French, German, Hungarian, Italian, Portuguese and Spanish. He recently served as Chair of the Bahrain Independent Commission of Inquiry established pursuant to Royal Order of the King of Bahrain (29 June 2011), and since 1975, he served in the following United Nations positions: Chair, then member of the United Nations Independent International Commission of Inquiry for Libya (2011). Independent Expert, Commission on Human Rights

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in Afghanistan, (2004–06); Independent Expert on The Rights to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1998–2000); Chairman, Drafting Committee, United Nations Diplomatic Conference on the Establishment of an International Criminal Court (1998); Vice-Chairman, General Assembly’s Preparatory Committee on the Establishment of an International Criminal Court (1996–98); Vice-Chairman, General Assembly’s Ad Hoc Committee on the Establishment of an International Criminal Court (1995); Chairman of the United Nations Commission of Experts Established Pursuant to Security Council 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia (1993-94), and the Commission’s Special Rapporteur on Gathering and Analysis of the Facts (1992–1993); Consultant to the Sixth and Seventh United Nations Congress on Crime Prevention (1980 and 1985); Consultant to the Committee on Southern African, Commission on Human Rights (1980–81); Co-chairman of the Independent Committee of Experts on drafting the Convention on the Prevention and Suppression of Torture (1978); Honorary Vice-President, Fifth United Nations Congress on Crime Prevention (1975). He also served, between 1973–1980, as a consultant to the U.S. Departments of State and Justice on projects relating to international traffic in drugs (1973) and international control of terrorism (1975 and 1978–79) and as a consultant to the Department of State on the defense of the U.S. hostages in Iran (1979–80). Among some of the distinctions and awards he has received are: Nomination to the Nobel Peace Price (1999); Special Award of the Council of Europe (1990); the Adlai Stevenson Award of the United Nations Association (1993); Defender of Democracy Award, Parliamentarians for Global Action (1998); the Saint Vincent DePaul Humanitarian Award (DePaul University 2000); the Hague Prize for International Law (2007); the Via Sapientiae Award (DePaul University 2009); the World Peace Through Law Award (Washington University School of Law 2009); George Washington University Distinguished Alumni Scholar Award (2010–2011); Bradford O’Neill Medallion for Social Justice, Dominican University (2011); Wolfgang Friedmann Award (Columbia School of Law 2012). He received the following medals from Austria, Egypt, France, Germany, Italy and the United States: Order of Merit of the Republic, Italy (Cavaliere di Gran Croce) (2006); Ordre des Palmes Académiques, Republic of France (Commander) (2006); Grand Cross of the Order of Merit, Federal Republic of Germany (2003); Legion d’Honneur (Officier), France (2003); Order of Lincoln, Illinois, USA (2001); Grand Cross of the Order of Merit of the Austrian Republic (1990); Order of Scientific Merit (First Class), Egypt (1984); Order of Merit of the Republic, Italy (Grand’Ufficiale) (1977); Order of Merit of the Republic, Italy, (Commendatore) (1976); Order of Military Valor, Egypt (1956).

Chapter one

The Discipline of ICL Section 1. The Sources of ICL 1.1. The Components of ICL International Criminal Law (ICL) is a complex legal discipline consisting of several components bound by their functional relationship in the pursuit of value-oriented goals. These goals include the prevention and suppression of international criminality, enhancement of accountability and reduction of impunity, and the establishment of international criminal justice. Each of these components derives from one or more legal disciplines and their respective branches, including international law, national criminal law, comparative criminal law and procedures, and international and regional human rights law. These legal disciplines are distinguished on the basis, inter alia, of their subjects, contents, scope, values, goals, and methods. Thus, they cannot be easily reconciled. Nevertheless, the different components that make up ICL constitute a functional whole, even though lacking in the doctrinal cohesiveness and methodological coherence found in other legal disciplines whose relative homogeneity gives them a more defined systemic nature. Thus, there is something that can be called the system of ICL, which derives from the functional relationship that exists between the different components of this discipline and the value-oriented goals it seeks to achieve. This is evident in the scholarly writings on ICL.1

1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (2 vols., M. Cherif Bassiouni ed., 2010); M. Cherif Bassiouni, The Institutionalization of Torture in the Bush Adminitration: Is anyone Responsible? (2010); Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Simon Chesterman & Angelina Fisher eds., 2010); Victor Rodriguez, The Chicago Principles of Post-Conflict Justice: A Vision Since and on the Latin American Post-Conflict Experiences (2010); Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2010); Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Alette Smeulers ed., 2010); William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010); Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (2010); Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009); Sévane Garibian, Le Crime Contre L’humanité au Regard des Principles Fondateurs de L’etat Moderne (2009); Prosecuting Heads of State (Ellen Lutz and Caitlin Reiger eds., 2009); Gebru Tareke, The Ethiopian Revolution: War in the Horn of Africa (2009); M. Cherif Bassiouni, International Criminal Law (vols. 1–3, M. Cherif Bassiouni ed., 3d rev. ed. 2008); The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Michael P. Scharf and Leila

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Nadya Sadat eds., 2008); Ruti Teitel, Transitional Justice (2008); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wke of World War II (2008); Rosanne Van Alebeek, The Immunities of States and Their Officials in INternational Criminal Law and International Human Rights Law (2008); Guénaël Mettraux, The Law of Command Responsibility (2009); Mark Osiel, Making Sense of Mass Atrocity (2008); Wojciech Materski, Katyn, A Crime Without Punishment (Anna M. Cienciala and Natalia S. Lebedeva eds., 2008); Jeffrey Ian & Dawn L. Rothe, The Ironies of Controlling State Crime (2008); Values & Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008); Heraldo Muñoz, The Dictator’s Shadow: Life Under Augusto Pinochet (2008); Manfred Noawk & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (2008); John Jackson, Maximo Langer & Peter Tillers, Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honor of Professor Mirian Damaska (2008); Cryer & Boister, The Tokyo International Military Tribunal: A Reappraisal (2008); Anthony Aust, Modern Treaty Law and Practice (2d. ed. 2007); M. Cherif Bassiouni, Introduction au Droit Pénal International (2002); Crimes Internationaux et Juridictions Internationaux (Antonio Cassese & Mireille Delmas-Marty eds. 2002); Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds., 2002); Nuremberg Warns: From Nazism to Terrorism (in Russian) (A.I. Cukhanova ed., 2002); Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansästze einer Dogmatisierung (2002); The Individual as Subject of International Cooperation in Criminal Matters (Albin Eser, Otto Lagodny & Christopher Blakesley eds., 2002); Le Droit Pénal à l’Épreuve de l’Internationalisation (Marc Henzelin & Robert Roth eds., 2002); Herwig Roggeman, Die Internationalen Strafgerichtshöfe (1998); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (2002); Wang Xiumei, International Criminal Law (in Chinese) (2002); Geert-Jan G.J. Knoops, Defenses in Contemporary International Criminal Law (2001); Francisco VillagránKramer, El Largo Brazo de la Justicia Penal Internacional (2001); Droit Pénal International (Hervé Ascensio, Emmanuel Decaux, & Alain Pellet, eds., 2000); 1, 2 Substantive and Procedural Aspects of International Criminal Law (Gabrielle Kirk-MacDonald & Olivia Swaak-Goldman eds., 2000); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Nina H.B. Jørgensen, The Responsibility of States for International Crimes (2000); International Criminal Law, Cases and Materials (Jordan Paust, M. Cherif Bassiouni et al. eds., 2d rev. ed. 2000); Shaping Shao, International Criminal Law (in Chinese) (2000); M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011); M. Cherif Bassiouni, Le Fonti e Il Contenuto Del Diritto Penale Internazionale: Un quadro Teorico, (1999); Zhang Zhihui, International Criminal Law (in Chinese) (1999); Alicia Gil Gil, Derecho Penal Internacional (1999); International Law: Classic and Contemporary Readings (Charlotte Ku & Paul F. Diehl eds., 1998); Mednarodno Kazensko Pravo (in Slovenian) (Ljubo Bavcon ed. 1997); Guillermo Fierro, La Ley Penal y el Derecho Internacional (2d ed. 1997); Lyal S. Sunga, The Emerging System of International Criminal Law (1997); International Criminal Law in the Netherlands (Bert Swart & André Klip eds., 1997); International Criminal Law: A Collection of International and European Documents (Christine Van den Wyngaert ed., 1996); Noliva Kofele-Kale, International Law of Responsibility for Economic Crimes (1995); International Criminal Law and Procedure (John Dugard & Christine Van den Wyngaert eds., 1996); André Huet & Renée Koering-Joulin, Droit Pénal International (1994); Farhad Malekian, The Concept of Islamic International Criminal Law (1994); Huang Shao-Jun, An Introduction to International Criminal Law (in Chinese) (1992); Eric David, I-III Elements de Droit Pénal International (1992); Haidong Li, Die Prinzipien des Internationalen Strafrechts (1991); M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987); M. Cherif Bassiouni, International Crimes Digest/Index of Int’l instruments 1815–1985 (2 vols. 1985); Mohammed Hassanein Ebeid, Al-Jarima Al-Dawlia (1979); Claude Lombois, Droit Pénal International (2d ed. 1979); Stefan Glaser, Droit International Pénal Conventionnel (vol. 1, 1971 & vol. 2, 1978); Bart De Schutter, La Belgique et le Droit International Pénal (1975); 1, 2 A Treatise on International Criminal Law (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); International Criminal Law (G.O.W. Mueller & Edward



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3

M. Wise ed., 1965); Dietrich Oehler, Internationales Strafrecht (1973); A.H.J. Swart, International Strafrecht (1973); Stanislaw Plawski, Etude des Principes Fondamentaux du Droit International Pénal (1972); Joseph Kohler, Internationales Strafrecht (1971); Aktuelle Probleme des Internationalen Strafrechts (Dietrich Oehler & Paul G. Potz eds., 1970); Otto Triffterer, Dogmatische Untersuchungen zur Entwicklung des Materiellen Völkerstrafrechts seit Nurnberg (1966); Stefan Glaser, Crimes Internationaux (1957); Antonio Quintano-Ripoles, Tratado de Derecho Penal Internacional y Penal Internacional Penal (1957); George Dahm, Zur problematik des Völkerstrafrechts (1956); Stefan Glaser, Introduction à l’Étude du Droit International Pénal (1954); Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952); Joseph B. Keenan & Brendan F. Brown, Crimes Against International Law (1950); Nino Levi, Diritto Penale Internazionale (1949); Rolando Quadri, Diritto Penale Internazionale (1944); Francesco Cosentini, Essai d’un Code Pénal International Dressé sur la Base Comparative des Projets et Textes Récents des Codes Pénaux (1937); Hellmuth Von Weber, Internationale Strafgerrichtsbarkeit (1934); Carlos Alcorta, Principios de Derecho Penal Internacional (1931); Emil S. Rappaport, Le Problème du Droit Pénal Interétatique (1930); Henri F. Donnedieu De Vabres, Les Principes Modernes du Droit Pénal International (1928); Vespasian V. Pella, La Criminalité Collective des Etats et le Droit Pénal de l’Avenir (1925); Henri F. Donnedieu De Vabres, Introduction à l’Étude du Droit Pénal International (1922); Maurice Travers, Le Droit Pénal International et sa Mise en œuvre en Temps de Paix et en Temps de Guerre (1922); Salvatore Adinolfi, Diritto Internazionale Penale (1913); Friedrich Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts (1910). See also Kai Ambos, The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, J. Int’l. Crim. Just. (2010); M. Cherif Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9 Wash. U. Global Stud. L. Rev. 575 (2010); M. Cherif Bassiouni, Perspectives on International Criminal Justice, 50 Va. J. Int’l. L. 269 (2010); Nadia Bernaz and Remy Prouveze, International and Domestic Prosecutions, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 269 (2 vols., M. Cherif Bassiouni ed., 2010); Juan Pablo Bohoslavsky and Veerle Opgenhaffer, The Past and Present of Corporate Complicity: Financing the Argentine Dictatorship, 23 Harv. Hum. Rts. J. 157 (2010); Jose Luis Guzman Dalbora, The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face, 10 Int’l. Crim. L. Rev. 535 (2010); Ramiro Garcia Falconi, The Codification of Crimes Against Humanity in the Domestic Legislation of Latin American States, 10 Int’l. Crim. L. Rev. 453 (2010); Juan Luis Modolell Gonzalez, The Crime of Forced Disappearance of Persons According to the Decisions of the InterAmerican Court of Human Rights, 10 Int’l. Crim. L. Rev. 475 (2010); Claus Kress, On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 Leiden J. Int’l. L. 855 (2010); Joanna Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic Courts, in International Criminal Law and Philosophy (Larry May and Zachary Hoskins eds., 2010); Guenael Mettraux, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 142 et seq. (2010); Fabiola Girao Monteconrado, Marcos Zilli, and Maria Thereza Rocha de Assis Moura, International Criminal Law and Transitional Justice in Brazil, 10 Int’l. Crim. L. Rev. 509 (2010); Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay, 10 Int’l. Crim. L. Rev. 601 (2010); Pablo F. Parenti, The Prosecution of International Crimes in Argentina, 10 Int’l. Crim. L. Rev. 491 (2010); Jordan J. Paust, The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes, 43 John Marshall L. Rev. (2010); Leila Nadya Sadat, The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010); Elies van Sliedregt, Modes of Liability, in Leila Nadya Sadat, Forging a Convention on Crimes Against Humanity 223 (2010); Elizabeth Santalla Vargas, An Overview of the Crime of Genocide in Latin American Jurisdictions, 10 Int’l. Crim. L. Rev. 441 (2010); Eric Wielbelhaus-Brahm, Truth Commissions and Other Investigative Bodies, in 1 The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice 477 (2 vols., M. Cherif Bassiouni ed., 2010); Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009); Sara

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Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1481 (2009); Pamela H. Bucy, Corporate Criminal Liability: When Does It Make Sense?, 46 Am. Crim. L. Rev. 1437 (2009); Antonio Cassese, Anthology: Eichmann: Is Evil So Banal?, 7 J. Int’l. Crim. Just. 645 (2009); Adolfo Ceretti, Collective Violence and International Crimes, in The Oxford Companion to International Criminal Justice 1 (2009); John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1329 (2009); Peter J. Henning, Corporate Criminal Liability and the Potential for Rehabilitation, 46 Am. Crim. L. Rev. 1417 (2009); Neha Jain, Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 J. Int’l. Crim. Just. 1013 (2009); Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge, 41 Neth. Int’l. L. Rev. 333 (2009); Erik Luna, The Curious Case of Corporate Criminality, 46 Am. Crim. L. Rev. 1507 (2009); Geraldine Szott Moohr, The Balance Among Corporate Criminal Liability, Private Civil Suits, and Regulatory Enforcement, 46 Am. Crim. L. Rev. 1459 (2009); Valerie Oostervelt, The Special Court for Sierra Leone’s Consideration of Gender-Based Violence: Contributing to Transitional Justice?, 10(1) Human Rts. Rev. 73 (2009); Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009); Barry J. Pollack, Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1393 (2009); Jennifer M. Smith, An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity, 97 Geo. L.J. 1111 (2009); Larry Thompson, The Blameless Corporation, 46 Am. Crim. L. Rev. 1323 (2009); Ian W. Baldwin, Notes Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 Iowa L. Rev. 287 (2008); M. Cherif Bassiouni, The Discipline of International Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in International Criminal Law: Sources, Subjects, and Contents 535 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, The Making of the International Criminal Court, in 3 International Criminal Law 117 (M. Cherif Bassiouni ed., 3d ed., 2008); M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Crimonology 711 (2008); M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, Principles of Legality in International and Comparative Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 73 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values and Violence: Intangible Acts of Terrorism (Wayne McCormack ed., 2008); M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace and Aggression: From Its Origins to the ICC, in International Criminal Law: Sources, Subjects, and Contents 207 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Christopher L. Blakesley, Extraterritorial Jurisdiction, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Tessa V. Capeloto, Reconciliation in the Wake of Tragedy: Cambodia’s Extraordinary Chambers Undermines the Cambodia Constitution, 17 Pac. Rim L. & Pol’y. J. 103 (2008); Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporate and Armed Opposition Groups, 6 J. Int’l. Crim. Just. 899 (2008); Roger S. Clark, Apartheid, in International Criminal Law: Sources, Subjects, and Contents 599 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Roger S. Clark, The Crime of Aggression and the International Criminal Court, in International Criminal Law: Sources, Subjects, and Contents 243 (M. Cherif Bassiouni ed., 3d rev. ed 2008); Roger S. Clark & Otto Triffterer, Exclusion of Jurisdiction over Persons under Eighteen, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 493 (2d ed., 2008); Kathleen Claussen, Up to the Bar? Designing the Hybrid Khmer Rouge Tribunal in Cambodia, 33 Yale J. Int’l. L. 253 (2008); David Crane, The Special Court for Sierra Leone, in 3 International Criminal Law 195 (M. Cherif Bassiouni ed., 3d ed. 2008); Robert Cryer, The Doctrinal Foundations of International Criminalization, in International Criminal Law: Sources, Subjects, and Contents 107 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Anthony A. D’Amato, National Prosecutions for International Crime, in International Criminal Law: International Enforcement 285 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Daniel Derby, The International Prohibition of Torture, in International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Rodney Dixon, Article 7: Introduction/



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General Remarks, in Otto Triffterer, Commentary on The Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 123 (2d. ed., 2008); Gunel Guliyeva, The Concept of Joint Criminal Enterprise and ICC Jurisdiction, 4/1 Eyes ICC 72 (2008)f; Bernard Leroy, M. Cherif Bassiouni & Jean-Francois Thony, The International Drug Control System, in International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Suzannah Linton, Indonesia and Accountability for Serious Crimes in East Timor, in 3 International Criminal Law 399 (M. Cherif Bassiouni ed., 3d ed., 2008); Matthew Lippman, Genocide, in International Criminal Law: Sources, Subjects, and Contents 403 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Stephen C. McCaffrey, Criminalization of Environmental Protection, in International Criminal Law: Subjects, Sources, and Contents 1013 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Tanaz Moghadam, Revitalizing Universal Jurisdiction: Lessons from Hybrid Tribunals Applied to the Case of Hissene Habre, 39 Colum. Hum. Rts. L. Rev. 471 (2008); Michael Plachta, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 457 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Leila Nadya Sadat, The French Experience, in International Criminal Law: International Enforcement 329 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); William A. Schabas, Crimes Against Humanity: The State Plan or Policy Element, in The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni 347 (Leila Nadya Sadat & Michael P. Scharf eds., 2008); William A. Schabas, State Policy as an Element of International Crimes, 98 J. Crim. & Criminology 953 (2008); David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 International Criminal Law 399 (M. Cherif Bassiouni ed., 3d. ed., 2008); Ulrich Sieber, The Forces Behind the Harmonization of Criminal Law, in Les Chemin de L’Harmonization Penale 385 (Mireille Delmas-Marty, Mark Pieth, and Ulrich Sieber eds., 2008); Gwynne Skinner, Nuremberg’s Legacy Continues: The Nuremberg Trials’ Influence on Human Rights Litigation in United States Courts under the Alien Tort Statute, 71 Alb. L. Rev. 321 (2008); Jacob W.F. Sundbert, The Crime of Piracy, in International Criminal Law: Subjects, Sources, and Contents 799 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Otto Triffterer, Irrelevance of Official Capacity, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 501 (2d ed. 2008); Otto Triffterer, Mistake of Fact or Mistake of Law, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 555 (2d ed. 2008); Otto Triffterer, Superior Orders and Prescriptions of Law, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 573 (2d ed. 2008); Beth Van Schaak, Crimen sine lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 Geo. L. J. 119 (2008); Evan Wallach & I. Maxine Marcus, Command Responsibility, in International Criminal Law: International Enforcement 459 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Leila Sadat Wexler, The French Experience, in International Criminal Law: International Enforcement (M. Cherif Bassiouni ed., 3d rev. ed. 2008); Bruce A. Zagaris, United States Treaties on Mutual Assistance in Criminal Matters, in International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 385 (M. Cherif Bassiouni ed., 3d rev. ed. 2008); William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome Statute of Justice, 18 Crim. L.F. (2007); Antonio Cassese, The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise, J. Int’l. Crim. Just. 109 (2007); David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l. L. 1 (2007); Kathleen M. Jennings, The Struggle to Satisfy: DDR Through the Eyes of Ex-Combatants in Libers, 14 Int’l. Peacekeeping 204 (April 2007); Jason McClurg, New Defense Counsel Appointed for Charles Taylor, 23 Int’l. Enforcement L. Rep. 366 (2007); David L. Nersessian, Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity, 43 Stan. J. Int’l. L. 254 (2007); Jonas Nilsson, The Principle nullum crimen sine lege, in Rethinking International Criminal Law: The Substantive Part 37 (Olaoluwa Olusanya ed., 2007); William A. Schabas, Complementarity Thoughts, 18 Crim L.F. (2007); David Scheffer, Atrocity Crimes Framing the Responsibility to Protect, 40 Case W. Res. J. Int’l. L. 111 (2007); David Scheffer, The Merits of Unifying Terms: “Atrocity Crimes” and “Atrocity Law,” in 2 Genocide Studies and Prevention 91 (2007); Daniel M. Singerman, It’s Still Good to Be the King: An Argument for Maintaining the Status Quo in Foreign Head of State Immunity, 21 Emory Int’l. L. Rev. 413 (2007); Carsten Stahn, Complementarity: A Tale of Two Notions, 18 Crim. L.F. (2007); Jane

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Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l. L. 251 (2007); Firew Kebede Tiba, Notes and Comments, The Mengitsu Genocide Trial in Ethiopia, 5 J. Int’l. Crim. Just. 513 (2007); Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, J. Int’l. Crim. Just. 5 (2007); Mohamed El Zeidy, The Gravity Threshold Under the Statute of the International Criminal Court, 18 Crim. L.F. (2007); Mohamed Elewa Badar, Just Convict Everyone!: Joint Preparation: from Tadic to Stakic and Back Again, 6 Int’l. Crim. L. Rev. 293 (2006); M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 Case W. Res. J. Int’l. L. 389 (2006); M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 Ga. St. U.L. Rev. 541 (2006); Michael Bohlander, Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11bis and the Consequences for the Law of Extradition, 55 Int’l. & Comp. L. Q. 219 (2006); Antonio Cassese, Balancing the Prosecution of Crimes Against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case Before the ECHR, 4 J. Int’l. Crim. Just. 410 (2006); Sylvia de Bertodano, Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers, 4 J. Int’l. Crim. Just. 285 (2006); Federica Gioia, State Sovereignty, Jurisdiction, and “Modern” International Law: The Principle of Complementarity in the International Criminal Court, 19 Leiden J. Int’l. L. 1095 (2006); Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L.F. 255 (2006); Ethel Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l. & Comp. L. 347 (2006); Katheryn Klein, Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the Joint Tribunal in Cambodia, 4 Nw. U.J. Int’l. Hum. Rts. 549 (2006); Jens Meierhenrich, Analogies at War, 11 J. Conflict & Sec. L. 1 (2006); Frank Meyer, Complementing Complementarity, 6 Int’l. C. L. Rev. 549 (2006); Ray Murphy, Gravity Issues and the International Criminal Court, 17 Crim. L.F. 281 (2006); Vincent O. Nmehielle & Charles Chernor Jalloh, The Legacy of the Special Court for Sierra Leone, 30 Fletcher F. World Aff. 107 (2006); J. Peter Pham, A Viable Model for International Criminal Justice: The Special Court of Sierra Leone, 19 N.Y. Int’l. L. Rev. 37 (2006); Caitlin Reiger & Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, in Prosecution Case Studies Series (2006); Ryan M. Scoville, Note, Toward an Accountability-Based Definition of “Mercenary,” 37 Geo. J. Int’l. L. 541 (2006); Mohamed El Zeidy, Some Remarks on the Question of the Admissibility of a Case during Arrest Warrant Proceedings before the International Criminal Court, 19 Leiden J. Int’l. L. 1 (2006); Mark A. Summers, Immunity or Impunity? The Potential Efect of Prosecution of State Officials for Core International Crimes in States Like the United States that are not Parties to the Statute of the International Criminal Court, 3 Brook J. Int’l. L. 462 (2006); Christian Tomuschat, The Legacy of Nurembert, 4 J. Int’l. Crim. Just. 830 (2006); M. Cherif Bassiouni, Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int’l. L.J. 327 (2005); Enrique Carnero Rojo, The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From “No Peace Without Justice” to “No Peace Without Victor’s Justice,” 18 Leiden J. Int’l. L. 829 (2005); Allison Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Resopnsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75 (2005); Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Nw. U. L. Rev. 539 (2005); Karen Engle, Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, 99 Am. J. Int’l. L. 424 (2005); Megan A. Fairlie, Establishing Admissibility at the International Criminal Court: Does the Buck Stop with the Prosecutor, Full Stop?, 39 Int’l. Lawyer 817 (2005); Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Criminal Justice, 26 Mich. J. Int’l. L. 1013 (2005); V. Haan, The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, 5 Int’l. Crim. L. Rev. 167 (2005); Theordo Meron, Revival of Customary Humanitarian Law, 99 Am. J. Int’l. L. 817 (2005); Guenael Mettraux, International Crimes and the ad hoc Tribunals, 292 (2005); Aly Mokhtar, Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects, 26 Statute L. Rev. 41 (2005); Hector Olasolo, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, 5 Int’l. C.L. Rev. 121 (2005); Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum. L. Rev. 1751 (2005); Carsten Stahn, Complementarity, Amnesties, and Alterantive Forms of Justice: Some Interpretive Guidelines for the International Criminal Court, 3 J. Int’l. C. Just. 695 (2005); Lijun Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court, 4 Chinese J. Int’l. L. 121 (2005); Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l. L. 407 (2004); Mohamed



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Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 San Diego Int’l. L.J. 73 (2004); Markus Benzing, The Complementarity Regime of the International Criminal Court: International Justice Between State Sovereignty and the Fight Against Impunity, 7 M.P. Y.B. UN L. 591 (2004); William W. Burke-White, Complementarity in Practice: The International Criminal Court as Part of a System of Multilevel Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l. L. 557 (2004); Jean-Christian Cady & Nicholad Booth, Internationalized Courts in Kosovo: An UNMIK Perspective, in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia 59 (Cesare P.R. Romana et al. eds., 2004); Andre Klip, Complementarity and Concurrent Jurisdiction, 39 Nouvelles Etudes Penales 173 (2004); David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int’l. L. 85 (2004); Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004); Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 Wash. U.L.Q. 1001 (2004); S. Powles, Joint Criminal Enterprise Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J. Int’l. Crim. Just. 606 (2004); Mohamed Shahabuddeen, Does the Principle of Legality Stand in the Way of Progressive Development Law?, 2 J. Int’l. Crim. Just. 1007 (2004); Sienho Yee, The Tu Quoque Argument as a Defense to International Crimes, Prosecution, or Punishment, 3 Chinese J. Int’l. L. 87 (2004); Kelly D. Askin, Reflections on Some of the Most Significant Achievements of the ICTY, 37 New Eng. L. Rev. 903 (2003); David Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta (International Center for Transnational Justice, Aug. 2003); Sylvia de Bertodano, Current Developments in Internationalized Courts, 1 J. Int’l. Crim. Just. 226 (2003); Laura A. Dickinson, The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo, 37 New Eng. L. Rev. 1059 (2003); Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l. Crim. Just. 86 (2003); Victor Prusin, “Fascist Criminals to the Gallows!”: The Holocaust and Soviet War Crimes Trials, 1945–February 1946, 17 Holocaust and Genocide Studies 1 (2003); Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int’l. L. 111 (2003); William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New Engl. L. Rev. 1015 (2003); Kai Ambos, Current Issues in International Criminal Law, 14 Crim. L.F. 225 (2003); Mark A. Summers, Development of a Principle of Universal Jurisdiction That Would Obligate All States to Prosecute War Criminals?, 21 B.U. Int’l. L.J. 63 (2003); Ruti Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69 (2003); Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002); Kai Ambos & Stefan Wirth, The Current Law of Crimes Against Humanity, 13 Crim. L.F. 1 (2002); Kent Anderson, An Asian Pinochet?—Not Likely: The Unfilfilled International Law Promise in Japan’s Treatment of Former Peruvian President Alberto Fujimori, 38 Stan. J. Int’l. L. 177 (2002); Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. 39 (2002); M. Cherif Bassiouni, Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in Post-Conflict Justice 3 (M. Cherif Bassiouni ed., 2002); M. Cherif Bassiouni, Proposed Guiding Principles for Combating impunity for International Crimes, in Post-Conflict Justice 255 (M. Cherif Bassiouni ed., 2002); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l. L. 81 (2002); M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l. L. & Pol’y. 344 (2002); Aaron J. Buckley, The Conflict in Cambodia and Post-Conflict Justice, in Post-Conflict Justice 637 (M. Cherif Bassiouni ed., 2002); Antonio Cassese, When May Senior State Officials Be Tried for International Crimes?: Some Comments on the Congo v. Belgium Case, 13 EJIL 853 (2002); John Dugard, Possible Conflicts of Jurisdiction with Truth Commissions, in 1 The Rome Statute of the International Criminal Court: A Commentary 667 (Antonio Cassese, Paola Gaeta & John R.W.D. Jones eds., 2002); Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573 (2002); Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Int’l. L. & Pol’y. 325 (2002); Susan Lamb, Nullum crimen, nulla poena sine lege, in International Criminal Law, in A. Cassese, P. Gaeta &

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J. Jones, The Statute of the International Criminal Court 733 (2002); Frederick M. Lorenz, Civil-Military Cooperation in Restoring the Rule of Law: Case Studies from Mogadishu to Mitrovica, in Post-Conflict Justice 840 (M. Cherif Bassiouni ed., 2002); Michael J. Matheson, United Nations Governance of Post-Conflict Societies: East Timor and Kosovo, in Post-Conflict Justice 523 (M. Cherif Bassiouni ed., 2002); Frederic Megret, The Politics of International Criminal Justice, 13 Eur. J. Int’l. L. 1261 (2002); Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the Internatoinal Criminal Tribunals for Yugoslavia and for Rwanda, 43 Harv. Int’l. L.J. 237 (2002); Kelly Creque O’Neille, A New Customary Law of head of State Immunity?: Hirohito and Pinochet, 38 Stan. J. Int’l. L. 289 (2002); Steven A. Ratner, Accountability for the Khmer Rouge: A (Lack of) Progress Report, in Post-Conflict Justice 613 (M. Cherif Bassiouni ed., 2002); Mohamed El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Mich. J. Int’l. L. 869 (2002); Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? 95 Am. J. Int’l. L. 7 (2001); Luis Benavenides, The Universal Jurisdiction Principle: Nature and Scope, 1 Annuario Mexicano de Derecho Internacional 19 (2001); Wendy S. Betts, Scott N. Carlson & Gregory Grisvold, The Post-Conflict Justice Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l. L. 371 (2001); Curtis A. Bradley, Universal Jurisdiction and U.S. Law, U. Chi. Legal F. 323 (2001); Richard A. Falk, Accountability for War Crimes and the Legacy of Nurembert, in War Crimes and Collective Wrongdoing: A Reader 113 (Aleksandar Jokic ed., 2001); P. Gaeta, War Crimes Trials Before Italian Criminal Courts: New Trends, in International and National Prosecution of Crimes Under International Law 751 (H. Fischer et al., eds., 2001); G. Greenwood, Belligerent Reprisals in the Jurisprudence, in International and National Prosecutions of Crimes Under International Law 549 (H. Fischer et al., eds., 2001); Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions, 35 Cornell Int’l. L. J. 1 (2001–2); Maria Kelt & Herman von Hebel, What are Elements of Crimes?, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 16 (Roy S. Lee ed. 2001); Maria Kelt and Herman von Hebel, General Principles of Criminal Law and Elements of Crimes, in The International Criminal Court; Elements of Crimes and Rules of Procedure and Evidence 38 (Roy S. Lee ed. 2001); Nicola Lacey, In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory, 64 Mod. L. Rev. 350 (2001); Susan H. Lin, Aliens Beware: Recent U.S. Legislative Efforts to Exclude and Remove Alien Human Rights Abusers, 15 Emory Int’l. L. Rev. 733 (2001); Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 Crim. L.F. 185 (2001); Trevor W. Morrison, Fair Warning and the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455 (2001); Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20 (2001); Lucinda Saunders, Rich & Rare are the Gems They War: Holding DeBeers Accountable for Trading Conflict Diamonds, 24 Fordham Int’l. L. J. 1402 (2001); Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l. L. 952 (2001); Jansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor, 95 Am. J. Int’l. L. 46 (2001); Hansjorg Strohmeyer, Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor, U. New South Wales L.J. 16 (2001); Michael Plachta, The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare, 12 European J. Int’l Law 125 (2001); M. Cherif Bassiouni, Policy Considerations on Inter-State Cooperation in Criminal Matters, in Principles and Procedures for a New Transnational Criminal Law 807 (Albin Eser & Otto Lagodny ed., 1992); M. Cherif Bassiouni, The Penal Characteristics of Conventional International Criminal Law, 15 Case W. Res. J. Int’l L. 27 (1983); Robert Friedlander, The Foundations of International Criminal Law: A Present Day Inquiry, 15 Case W. Res. J. Int’l L. 13 (1983); Leslie C. Green, Is There an International Criminal Law? 21 Alta. L. Rev. 251 (1983); G.O.W. Mueller, International Criminal Law: Civitas Maxima, 15 Case W. Res. J. Int’l L. 1 (1983); Farooq Hassan, The Theoretical Basis of Punishment in International Criminal Law, 15 Case W. Res. J. Int’l L. 39 (1983); M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982); Leslie C. Green, New Trends in International Criminal Law, 11 Isr. Y.B. Hum. Rts. 9 (1981); Hans-Heirich Jescheck, Development, Present State and Future Prospects of International Criminal Law, 52 Revue Internationale de Droit Pénal 337 (1981); Leslie C. Green, International Crime and the Legal Process, 29 Int’l &



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To understand the system of ICL, it is first necessary to identify its several components, determine the sources of law applicable to each of them, and assess the functional relationship that links them. The penal aspects of international law derive from “conventions,” “customs,” and “general principles of law,” all of which are among the sources of this legal discipline as enunciated in Article 38 of the International Court of Justice’s (ICJ) statute.2 These sources of law are, however, subject to the “principles of legality” which derive from “general principles of law” as applied in ICL.3 The penal aspects of international law include: international crimes, elements of Comp. L.Q. 567 (1980); Leslie C. Green, An International Criminal Code—Now?, 3 Dalhousie L.J. 560 (1976); Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 Va. J. Int’l L. 561 (1975); Yoram Dinstein, International Criminal Law, 5 Isr. Y.B. Hum. Rts. 55 (1975); M. Cherif Bassiouni, An Appraisal of the Growth and Developing Trends of International Criminal Law, 45 Revue Internationale de Droit Pénal 405 (1974); Robert Legros, Droit Pénal International 1967, 48 Revue de Droit Pénal et de Criminlogie 259 (1968); Hans-Heinrich Jescheck, Etat Actuel et Persceptives d’Avenir des Projets dans le Domaine du Droit International Pénal, 35 Revue Internationale de Droit Pénal 83 (1964); Leslie C. Green, New Approach to International Criminal Law, 28 Solic. 106 (1961); W.J. Ganshof van der Meersch, Justice et Droit International Pénal, 42 Revue de Droit Pénal et de Criminologie 3 (1961); Jean Y. Dautricourt, Le Droit International Pénal, 37 Revue de Droit Pénal et de Criminolgie 243 (1957); Jacques Verhaegen, Les Impasses du Droit International Pénal, 38 Revue de Droits Pénal et de Criminologie 3 (1957); A.D. Belinfante, Les Princips de Droit Pénal International et les Conventions Internationles, 2 Nederlands Tijdschrift voor Internationaal Recht 243 (1955); Stefan Glaser, Element Moral de l’Infraction Internationale, 59 Revue Génèrale de Droit International Public 537 (1955); Guiliano Vassalli, In tema di Diretto Internazionale Pénal, 56 Guistizia Penale 257 (1951); Stefan Glaser, Les Infractions Internationales et Leurs Sanctions, 29 Revue de Droit Pénal et de Criminologie 811 (1949); Henri F. Donnedieu de Vabres, La Codification du Droit Pénal International, 19 Revue Internationale de Droit Pénal 21 (1948); Stefan Glaser, Le Principe de la Legalitè des Delits et des Peines et les Procès des Criminels de Guerre, 28 Revue de Droit Pénal et de Criminologie 230 (1948); Henri F. Donnedieu de Vabres, Le Proces de Nuremberg Devant les Princips Modernes du Droit Pénal International, 7 Recueil Des Cours 481 (1947); Henri F. Donnedieu de Vabres, Le judgment de Nuremberg et le principe de le Legalitè et des Peines, 26 Revue de Droit Pénal et de Criminologie 813 (1947); Albert de La Pradelle, Une Revolution Dans le Droit Pénal international, 13 Nouvelle Revue de Droit International Privé 360 (1946); Max Radin, International Crimes, 32 Iowa L. Rev. 33 (1946); Gerald Abrahams, Retribution: An Inquiry into the Possibility of an International Criminal Law, 92 Law J. 38 (1942); Roberto Ago, Le Delit International, 68 Recueil des Cours de l’Academie de Droit International de la Haye 419 (1939); Henri F. Donnedieu de Vabres, La Repression Internationale des Delits du Droit des Gens, 2 Nouvelle Revue de Droit International Privé 7 (1935); Vespasian V. Pella, Plan d’un Code Repressif Mondial, 12 Revue Internationale du Droit Pénal 348 (1935); Carlos Alcorta, La Doctrina del Derecho Pénal Internacional, 2 Revisita Argentina de Derecho Internacional 271 (1931); Guiseppe Sagone, Pour un Droit Pénal International, 5 Revue International de Droit Pénal 363 (1928); Quintiliano Saldana, Projet de Code Pénal International; 1 Congrès International de Droit Pénal (1926); G. Glover Alexander, International Criminal Law, 5 J. Comp. Legis. & Int’l L. 90 (1923); G. Glover Alexander, International Criminal Law, 3 J. Comp. Legis. & Int’l L. 237 (1921). 2 See Statute of the International Court of Justice, art. 38, para. 1 [hereinafter ICJ Statute]. Among the many authors who have dealt with the sources of international law, see Oppenheim’s International Law 22 et seq. (Robert Jennings & Arthur Watts eds., 9th ed. 1992); Ian Brownlie, Principles of Public International Law 512–15 (3d ed. 1979); Georges Abi-Saab, Cours Général de Droit International Public, 207 Recueil de Cours de l’Académie de Droit International 15 (1996). 3 See infra Chapter III, section 2; Bassiouni, Crimes Against Humanity, supra note 1, at 296–358.

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international criminal responsibility, the procedural aspects of the “direct enforcement system” of ICL,4 and certain aspects of the enforcement modalities of the “indirect enforcement system” of ICL.5 The scope of these penal aspects of international law has expanded, leading to overlaps with the international law aspects of national criminal law. This is particularly evident in areas that historically have been the domain of national criminal law, such as the “general part”6 of domestic criminal law, which rises to the level of “general principles of law” and is applied in international judicial proceedings, or the “direct enforcement system,” as discussed in Chapter VII. The international aspects of national criminal law consist of extraterritorial jurisdictional norms, conflicts of criminal jurisdiction between states and between a state and an international legal organ,7 and the international sources of law applicable to modalities of international cooperation in penal matters, or the “indirect enforcement system.”8 The latter are embodied in multilateral and bilateral treaties, customary international law, and national norms which apply to national legal proceedings, as discussed in Chapter V. Increasingly, comparative criminal law and procedure furnishes international law through “general principles of law,” which are identified from national laws with norms of the “general part” and the “procedural part” of domestic criminal law,9 and which apply to the “direct enforcement system.” Thus, the substantive and procedural norms, which are applicable to proceedings before international legal institutions such as the ICTY, ICTR, and ICC, derive from such “general principles” of law.10 Thus, a degree of cross-fertilization exists between the penal 4 See infra section 2; see infra Chapter VI. 5 See infra section 2; see infra Chapter V.   6 The term “parts” is used herein by reference to national criminal law doctrine where criminal law is divided into two and sometimes three parts, namely, the “general part” which includes the principles upon which criminal responsibility is based and conditions of exoneration from criminal responsibility (see Chapter IV), the “special part” which contains the definition of the crimes (see Chapter III), and sometimes a separate “part” on penalties (see Chapter IV, section 7). Criminal procedure is usually codified separately, or it is referred to as the “procedural part” (see Chapter IX).   7 See M. Cherif Bassiouni, International Extradition: United States Law and Practice 425 (5th rev. ed. 2007) [hereinafter Bassiouni, International Extradition]; Extraterritorial Jurisdiction in Theory and Practice (Karl M. Meessen ed., 1996); Christopher Blakesley, Extraterritorial Jurisdiction, in 2 International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms 85 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL].   8 See infra Chapter V.   9 See M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law,” 11 Mich. J. Int’l L. 768 (1990) [hereinafter Bassiouni, General Principles]. 10 For a discussion of general principles of criminal procedure and evidence, see infra Chapter IX. See also, La phase préparatoire du process pénal en droit comparé, 56 Revue Internationale de Droit Pénal (1985); La Phase décisoire du process pénal en droit comparé, 57 Revue Internationale de Droit Pénal (1986); La Phase exécutoire du process pénal en droit pénal compare, 61 Revue Internationale de Droit Pénal (1990); Jean Pradel, Procédure pénale compare dans les    



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aspects of international law and national criminal law. This process of crossfertilization contributes to the harmonization of substantive and procedural norms in international and national criminal justice systems. International law provides ICL’s sources of law with the ratione materiae,11 ratione personae,12 and international enforcement obligations which apply to the “direct enforcement system,”13 and to the “indirect enforcement system.”14 Additionally, collateral sources of ICL derive from international and regional human rights law, comparative criminal law and procedure, and international and comparative criminology. International and regional human rights law apply essentially to procedural rights in international criminal proceedings,15 to penalties, and to the treatment of detainees in international criminal proceedings.16 Rules of procedure and evidence which rise to the level of “general principles of law” as derived from national legal systems apply in proceedings before international judicial bodies, as discussed in Chapter IX. Rules of procedure and evidence, such as legal presumptions, burden of proof, and quantum of evidence, determine the outcome of proof of guilt.17 These rules are sometimes outcome-determinative and may thus be deemed substantive in some national legal systems. Consequently, these national legal systems consider these rules part of the “general part,” as opposed to the “procedural part” of national criminal law.18 systèmes modernes: Rapports de synthèse des colloques de l’ISISC, 15 Nouvelles Études Pénales (1998); see also Richard May & Marieke Wierda, International Criminal Evidence (2002) [hereinafter May & Weirda]. 11 See infra Chapter III. 12 See infra Chapter II. 13 See infra Chapter VI. 14 See infra Chapter V. 15 See infra Chapter IX; see also Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994) [hereinafter Bassiouni, Human Rights Compendium]. But see Human Rights in Global Politics (Tim Dune & Nicholas Wheeler eds., 1999); Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997); Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals (1996); Robert B. Lillich & Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice (3d ed. 1995); Human Rights in International Law: Legal and Policy Issues (Theodor Meron ed., 1984). 16 This aspect of ICL is not sufficiently covered by experts and is found in large part in the writings of criminologists and human rights specialists. See e.g., Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000); United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Herman J. Burgers & Hans Danelius eds., 1988); Daniel Derby, The International Prohibition of Torture, in 1 International Criminal Law: Sources, Subjects, and Contents 621 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. See generally Bayefsky, supra note 15, and Bassiouni, Human Rights Compendium, supra note 15. 17 See May & Wierda, supra note 10; see also infra, Chapter IX. 18 See, e.g., Ferrando Mantovani, Diritto Penale: Parte General (2001); Hans-Heinrich Jescheck & Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (1996); Antonio

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The “general part” of ICL19 applies essentially to proceedings before international judicial bodies, namely, in the context of the “direct enforcement system.” However, some of these norms have become part of customary international law and also apply to national proceedings involving certain international crimes.20 These norms derive from “general principles of law” and include: elements of criminal responsibility,21 factors which exonerate from criminal responsibility, elements of crimes,22 “principles of legality,”23 and ne bis in idem.24 Thus, for example, customary international law norms concerning command responsibility, the defense of obedience to superior orders, and the immunities of heads of state and diplomats apply to international and national criminal proceedings involving international crimes, particularly jus cogens international crimes.25 National criminal law norms also have an impact on the ratione personae of ICL due to the expanding scope of international criminal responsibility, particularly with respect to jus cogens crimes.26 Similarly, certain legal concepts, such as conspiracy, which is essentially a common law concept are gradually being recognized in civilist legal systems, make their way into ICL.27 “General principles” of law deriving from national legal systems also serve to interpret the scope of international legal obligations,28 including, for example, the meaning and content of the maxim aut dedere aut judicare.29

Pagliaro, Principi di Diritto Penale: Parte Generale (1996); Jean Pradel, Droit Pénal Comparé (1995); Gaston Stefani, George Levassier, & Bernard Boulac, Droit Pénal Génèral (11th ed. 1995). 19 See supra note 7. 20 For example: command responsibility, non-applicability of the defense of obedience to superior orders, non-applicability of immunities of heads of state and diplomats for certain international crimes. See infra Chapter IV. 21 See Principles and Procedures for a New Transnational Criminal Law (Albin Eser & Otto Lagodny eds., 1992). 22 See supra note 18; infra Chapter IV. 23 See infra Chapter III, section 9. For nullem crimen sine lege, see Machteld Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (2002). 24 See Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002); Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1 (2002). 25 See infra Chapter III, section 8. 26 This applies in particular to criminal responsibility of organizations and individual responsibility for participation in organizations deemed criminal. See infra Chapter II, section 5. 27 The IMT and IMTFE included “conspiracy” even before that concept was received, under different aspects in Civilist legal systems. At that time, it was due to American influence in the framing of the statutes of the IMT and the IMTFE. Later, the concept found its way into the statutes of the ICTY, ICTR, and ICC. 28 See Bassiouni, General Principles, supra note 9. 29 See infra Chapter V.



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As established by the foregoing discussion, it seems evident that some of these sources of law that apply to different legal disciplines serve to develop the criminal component of international law, while other sources relate to the development of the international component of national criminal law. In some respects, these developments overlap, making it difficult to distinguish them in relationship to their original sources of law. In the end, they complement each other in a functional inter-relationship, as discussed below. 1.2. The Different Sources of Law and Their Application to ICL’s Components The sources of ICL that apply to its different components are not always, as mentioned above, entirely distinct from one another because they overlap in many respects. Nevertheless, as discussed below in section 1.4, they tend to be complementary. (a) The “special part” of ICL, the ratione materiae (Chapter III), is established by international law. Nevertheless, the elements of these crimes are not always sufficiently established in international law to satisfy the “principles of legality” as recognized in the world’s major criminal justice systems.30 They are therefore supplemented by “general principles” derived from national legal systems. (b) The basis for international criminal accountability and ratione personae (Chapter II) is established by international law and supplemented by “general principles of law,” which derive from national legal systems. (c) The “general part” of ICL, which includes the elements of criminal responsibility and factors exonerating from criminal responsibility, is established by “general principles of law,”31 which are a source of international law but which are derived from national legal systems. They are applied by internationally created judicial bodies that adjudicate international criminal responsibility (Chapter IV). In national criminal proceedings, even when concerning international crimes, it is only the national legal system’s “general part” which applies, except for such customary international law rules which are specifically relevant to international crimes.32 (d) The “procedural part” of ICL, meaning those rules of procedure and evidence applicable in international criminal proceedings, has mixed sources. With respect to international criminal justice bodies, the legislative authority or treaty creating such a body may establish them or they

30 See infra Chapter III, section 2. 31 Bassiouni, General Principles, supra note 9. 32 See supra note 21.

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chapter one may be derived from international norms and standards of due process originating in international and regional human rights law. Some of these norms and standards of international and regional human rights law also apply to national criminal proceedings, irrespective of whether these proceedings involve international or national crimes. Otherwise, national proceedings involving international crimes are subject to the laws of the forum state. (e) The “sanctions part” of ICL depends on whether the proceedings are conducted by an internationally created body or before national criminal proceedings. In the latter case, it is the law of the forum state that controls, subject, however, to international human rights norms and standards, and, where applicable, regional human rights norms and the jurisprudence of bodies such as the European Court of Human Rights,33 the Inter-American Court of Human Rights,34 and the Inter-American Commission of Human Rights.35 Internationally established judicial bodies are subject to international human rights norms and standards, and may also incorporate relevant national criminal justice sanctions standards, either through “general principles of law” or by analogy to the national legal system on whose territory that body exercises its jurisdiction.36 (f ) Enforcement of penal sanctions is subject to the national laws of the enforcing state, even when an international judicial body has pronounced the sanction. If, however, an international body has its own system of sanctions enforcement, the legislative authority establishing that body provides for the applicable rules of enforcement. If it does not, then the relevant body establishes its own norms.37 In any event, international human rights norms and standards and, where applicable, regional human rights norms and standards shall apply to the enforcement of penal

33 See Clare Ovey & Robin C.A. White, Jacobs & White, European Convention on Human Rights (3d ed. 2002); Donna Gomien, Judgments of the European Court of Human Rights, 1959–95 (1996); The European Union and Human Rights (Nanette A. Neuwahl & Allan Rosas eds., 1995); David J. Harris, Michael et al., Law of the European Convention on Human Rights (1995); Mark Janis, Richard Kay & Anthony Bradley, European Human Rights Law: Text and Materials (1995); The European System for the Protection of Human Rights (R. St. J. Macdonald et al. eds., 1993). 34 See generally Thomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th rev. ed. 1995); Scott Davidson, The Inter-American Human Rights System (1997). 35 Davidson, supra note 34. 36 This is the case with respect to the ICTY. See M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia 689 (1996) [hereinafter Bassiouni, Yugoslavia Tribunal]; see also infra Chapter VI. 37 This is the case with respect to the ICTY and ICTR. See Bassiouni, Yugoslavia Tribunal, supra note 36; Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for Rwanda (1997).



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sanctions, whether carried out by national legal systems or by internationally created bodies. (g) International cooperation in penal matters, which is the essential enforcement feature of ICL, is reflected in a number of modalities.38 Irrespective of whether prosecution and adjudication are by an internationally created body or by a national legal one, they derive from mixed sources of international and national law. Because the modalities of enforcement are the same for international crimes and domestic crimes (namely, extradition or surrender, judicial assistance and cooperation, transfer of criminal proceedings, transfer of sentenced persons, recognition of foreign penal judgments, freezing and seizing of assets, intelligence and law enforcement information-gathering and information-sharing, and regional and sub-regional “judicial spaces”), it is the laws of the enforcing state, or of the requested state, that apply, except if an existing multilateral or bilateral treaty provides otherwise. Relevant norms of customary international law also apply in domestic legal proceedings. Thus, it can be concluded that the legal architecture of ICL consists of different component blocks, which are functionally related even while lacking cohesion and coherence, as is the case with respect to the different legal systems from which these components originate. 1.3. Assessing the Sources of Law Applicable to ICL and the Doctrinal Framework of ICL ICL is a blend of several legal disciplines that differ as to their nature, values, goals, contents, methods, subjects, and techniques. Consequently, ICL is a complex discipline that requires a reconciliation of its sources of law within a doctrinal framework. However, a doctrinal framework reflecting the polyvalent nature of ICL is difficult to formulate because the disciplines from which its components originate are inherently different. The only way ICL can be doctrinally framed is by reconciling its functional goals of prevention and suppression of international criminality as an extension of the same goals of national criminal law in the prevention and suppression of national criminality. The sources of international law, as enunciated in Article 38 of the ICJ Statute, are conventions, customs, general principles, and the writings of the most distinguished publicists.39 These sources reflect the peculiarities of a discipline whose fundamental premise, though evolving, is based on a consensual relationship between co-equal sovereign states. International law comprises norms

38 See infra section 2 & Chapter V. 39 See supra note 2.

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and practices that apply to states and international organizations irrespective of national boundaries, but only some of these norms are peremptory and supersede national laws.40 The enforcement of international law relies essentially on the voluntary cooperation of states. With respect to ICL, international law enforcement mechanisms aim at enhancing states’ compliance with international legal norms by means that rely on the international interdependence of state interests and on some forms of inducement to compliance and coercive measures. The latter is evident with respect to the sanctions power of the Security Council under Chapter VII of the United Nations Charter, whose purposes are to preserve and maintain international peace and security. The processes of international law reflect the delicate balance between the principles of national sovereignty and the need to regulate the multifaceted relations and interests of states with one another and with those of the international community. Inter-state processes, however, are primarily designed for states, and as a result they are not particularly well suited to the needs of ICL, whose subjects are individuals.41 Moreover, inter-state processes regulate state-to-state relations rather than national legal processes, whereas ICL’s norms are directed towards persons and are essentially dependent on the cooperation of national criminal justice systems.42 National criminal justice systems, their diversity notwithstanding, work on the premise that a legislative authority exists that has the power to bind its subjects, namely individuals and private legal entities, and rely on coercive means to enforce legal proscriptions. These powers extend to the national territory, and only extraterritorially in a very limited context.43 Enforcement of national criminal law rests first with a law enforcement and prosecutorial apparatus designed to prevent and control unlawful behavior, and second with a judiciary that adjudicates guilt in accordance with pre-established, specific laws and procedures. Thus, the method, scope, content, and processes of national criminal justice systems significantly differ from and cannot be co-mingled with those of international law. This is evident in part in the ratione personae of ICL because, as stated below,44 international law (which is the source of international crimes) has historically regulated the conduct of states and international organizations and has therefore had some difficulty adjusting its enforcement mechanisms to individuals short of resorting to the “direct enforcement system.”45 40 See infra Chapter III, section 3. 41 See infra Chapter II, sections 1–3. 42 See infra Chapter V. 43 For extraterritorial criminal jurisdiction, see Bassiouni, International Extradition, supra note 7, ch. VI, at 425; Christopher Blakesley, Extraterritorial Jurisdiction, supra note 7, at 96 et seq. 44 See infra Chapter II. 45 See infra Chapter VI.



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Since the establishment of the International Military Tribunal (IMT) pursuant to the London Charter of 1945, international criminal law has clearly applied to individuals irrespective of the dictates of national law. Thus, individuals are the ratione personae par excellence of international criminal law. In addition, the London Charter and the IMT’s Judgment established the principle of group criminal responsibility,46 though neither has advanced the concept of state criminal responsibility,47 which had its contemporary beginnings in the post-World War I imposition of reparations on Germany.48 Since then, however, the concept of state criminal responsibility has been arrested,49 except with respect to the imposition of sanctions by the Security Council. Since Nuremberg, ICL has constantly expanded in scope, content, application, and enforcement, reaffirming the principle of individual criminal responsibility for conduct proscribed under international law,50 as well as the concept of criminal responsibility of organizations. The latter, however, has not developed to the same extent as that of individual criminal responsibility.51 Although this discussion is not meant to focus on the comparative aspect of international and national criminal law, it is appropriate to note that the two legal systems differ in, inter alia, the following aspects: (a) different higher sources of law to which the actual sources of law of that system are subject (such as jus cogens52 for international law and constitutional principles and norms for criminal law);53

46 See infra Chapter II, section 5. 47 See infra, Chapter II, section 6. 48 See Hjalmar Horace Greely Schacht, The End of Reparations (Lewis Gannett trans., 1979); John Maynard Keynes, The Economic Consequences of the Peace (1920). 49 See infra Chapter II, section 6. 50 See, e.g., M. Cherif Bassiouni, The “Nuremberg Legacy:” Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998); M. Cherif Bassiouni, Das “Vermächtnis von Nürnberg:” eine historische Bewertung fünfzig Jahre danach, in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen, (Ger Hankel & Gerhard Stuby eds., 1995); M. Cherif Bassiouni, Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986); cf. Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane Nach Volkerstrafrechts (1952). For recent U.N. developments, see Draft Code of Crimes Against the Peace and Security of Mankind: Titles and Texts of Articles on the Draft Code of Crimes Against Peace and Security of Mankind Adopted by the International Law Commission at its Forty-Eighth Session (1996), U.N. GAOR Int. Law Comm. 48th Sess., U.N. Doc. A/CN.4/L.532 (1996). The Draft Code of Crimes was adopted by the General Assembly in 1996 without modifications. In particular, see the statutes of the ICTY, ICTR, and ICC. See also e.g., infra Chapter VI. 51 See infra Chapter II. 52 See infra Chapter III, section 3. 53 See Pradel, supra note 10; see also infra Chapter IX.

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chapter one (b) different hierarchy in the sources of law (e.g., in international law, conventional law ranks above the writing of publicists and in most domestic criminal law, constitutional law ranks above statutes, and statutes rank above judicial decisions, but not above constitutional principles and norms); (c) the applicability and binding nature of the actual sources of law differ (i.e., international law obligations bind states in different ways, and thus while treaties are an unquestioned basis of binding legal obligations, states vary in their approaches to the binding nature of customary international law; in national criminal law, legal obligations bind all individuals and organizations that fall within the purview of the law in question); (d) applicability of the law and identification of its content differs (in international law, a custom can be in the making before it becomes enforceable; during this formative stage it may be difficult to ascertain its full content, and yet it may create rights and responsibilities, whereas in national criminal law, once enacted, there is no doubt as to the identification and content of the law); (e) the nature and binding legal effect of judicial decisions differs (in international law, the decisions of the ICJ bind only the parties to a given dispute, which are states, while in national criminal law, judicial decisions of the highest courts bind all subjects of the courts’ jurisdiction until changed statutorily or by other judicial decisions. It is still unclear whether decisions of the ICTY, ICTR, and ICC are binding only on these respective tribunals, or whether they constitute judicial precedent applicable to one another. It is also unclear as to whether these tribunals are the final authority in deciding issues involving their competence, based on the theory of competence de la competence, or whether the ICJ can still exercise its jurisdiction in connection with competence issues and other issues of general international law); (f ) the interaction between actual sources of law and their binding legal effect and content differs; (g) each system is distinguished by the subjects of the actual sources of law; (h) the reach and extent of the respective sources of law of each system differs as to its subjects and temporal and spatial applications; (i) different mechanisms of conflict resolution exist between the applicable sources of law; (j) different exemptions and immunities applicable to certain acts or to certain actors exist (i.e., state immunity applies in national legal systems as does the Act of State doctrine for acts of other states and their officials, while in international law, as well as in national law, the immunities of heads of state, diplomats, and certain officials of international organizations apply. However, international law also limits these substantive



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and procedural immunities, particularly with respect to international crimes);54 (k) the degree of specificity contained in legal norms varies depending upon the relevant source of law (thus the “principles of legality” which apply in national criminal justice systems do not apply to ICL with the same rigor);55 (l) each system maintains different enforcement methods and techniques arising out of their respective laws; (m) the social and political dynamics of the two systems differ significantly, particularly as to their respective impacts.56 The foregoing considerations, in addition to those arising from the interaction between ICL and national criminal law, as discussed below in section 2, make ICL more than the sum total of its different components, making it a complex discipline and a discipline in its own right. 1.4. Complementarity57 The inter-relationship between the components of ICL is akin to a pattern of overlapping norms lacking a systematic framework. International and national norms applicable to ICL are, however, to some extent complementary, in the sense that the two sources of law cross-fertilize one another. Moreover, this cross-fertilization produces a process of harmonization, which, although slow, ultimately leads to rapprochement and eventually to unification. Model national laws and model bilateral treaties developed by the United Nations serve that purpose.58 The ICC, which requires the adoption of national legislation, also serves that purpose. If nothing else, the state parties will all have the same normative formulation with respect to the crimes of “genocide,” “crimes against humanity,” and “war crimes.”59 More indirectly, national implementing legislation on 54 See infra Chapter II, section 4. 55 See infra Chapter III, section 9. 56 See infra section 3. 57 The term “complementarity” entered the English language in 1911, meaning, “a complementary relationship or situation; specifically in physics, the capacity of the wave and particle theories of light together to explain all phenomena of a certain type, although each separately accounts for only some of the phenomena.” Oxford English Dictionary (2002). 58 See Model Treaty on Extradition, G.A. Res. 45/116, U.N. Doc. A/RES/45/116 (14 December 1990); amended by G.A. Res. 52/88 (12 December 1997); Model Treaty on Mutual Assistance in Criminal Matters, G.A. Res. 45/117, U.N. Doc. A/RES/45/117 (14 December 1990); amended by G.A. Res. 53/112 (9 December 1998); Model Treaty on the Transfer of Proceedings in Criminal Matters, G.A. Res. 45/118, U.N. Doc. A/RES/45/118 (3 April 1991); Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released, G.A. Res. 45/119, U.N. Doc. A/RES/45/119 (3 April 1991). 59 See infra Chapter VII, section 4.4.

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cooperation between states-parties and the ICC are likely to influence, if not shape, the future of modalities of international cooperation in penal matters, including substantive and procedural norms, thus enhancing complementarity. Similarly, the rules of procedure of the ICC, which derive from comparative criminal procedure, will bring about a greater harmonization between the criminal procedures of states.60 Complementarity is essentially considered a jurisdictional concept and not a normative one. The term connotes a systemic relationship between different jurisdictional authorities exercising competence over international crimes, whether national or international judicial organs. As a jurisdictional concept, complementarity presupposes what it presently lacks: substantive and procedural legal content.61 The jurisdictional concept of complementarity is based on the unarticulated premise of the existence of concurrent jurisdictional competence, whether it is horizontally or vertically related. This includes the relationship between co-equal authoritative legal processes, such as states, and between these processes and those of an inter-national one, such as the ICC,62

60 See, e.g., Chapter IX (discussing the procedural area); William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008). For a discussion of complementarity as a check on state power, see Ronli Sifris, Weighing Judicial Independence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Int’l Comp. L. 88, 107 (2008). 61 However, Articles 17 and 18 of the ICC Statute provides this content with respect to the relationship between the ICC and state-parties. It does not apply between state-parties, between the ICC and non-state-parties, or between state-parties and non-state-parties, because the ICC is a treaty binding upon the states that have ratified or acceded to it. See Mark S. Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building, 15 Fla. J. Int’l L. 151, 155–157 (2002); Katherine L. Doherty & Timothy L.H. McCormack, “Complementarity” as a Catalyst for Comprehensive Domestic Penal Legislation, 5 U.C. Davis J. Int’l L. & Pol’y 147, 149 (1999); see also infra note 62. 62 The 1995 Ad Hoc Committee of the ICC and 1996 PrepCom of the ICC selected the term, which is a transposition from the french term “complementarité,” to describe the relationship between the ICC and national systems. See M. Cherif Bassiouni, Observations Concerning the 1997–98 Preparatory Committee’s Work, 13 nouvelles Études Pénales 5, 21 (1997); Jeffrey L. Bleich, Complementarity, 13 Nouvelles Études Pénales 231 (1997); Mauro Politi, The Establishment of an International Criminal Court at a Crossroads: Issues and Prospects after the First Session of the Preparatory Committee, 13 Nouvelles Études Pénales 115, 141–47 (1997); Leila Sadat Wexler, First Committee Report on Jurisdiction, Definition of Crimes and Complementarity, 13 Nouvelles Études Pénales 163, 174 (1997). For a discussion of the principle of “complementarity,” see generally John T. Holmes, The Principle of Complementarity, in The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (Roy S. Lee ed., 1999). For additional commentary on Complementarity, see Leila Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium 119 (2002); Crimes Internationaux et Juridictions Internationales (Antonio Cassese & Mireille Delmas-Marty eds., 2002); Juridictions Nationales et Crimes Internationaux (Antonio Cassese & Mireille Delmas-Marty eds. 2002); Sharon A. Williams, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article 51 (Otto Triffterer ed., 1999), at 383–94; see infra Chapter VII, sections 2.2, 4.1; infra Chapter X.



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and a supra-national one, such as the IMT, IMTFE, ICTY, and ICTR. Moreover, complementarity must also contemplate the relationship between inter-national legal processes created by treaty, such as the ICC, and non-state parties, as well as between these non-state parties and state parties. Obviously, the regulation of such relations requires the establishment of jurisdictional priorities and rules, or at least guidelines for the resolution of jurisdictional conflicts, all of which are presently lacking (though certain to evolve in the future). More importantly, the substantive content of complementarity must include the assumption of jurisdiction, so that the deference between jurisdictions does not create a jurisdictional vacuum. Failure to provide for an obligation to exercise jurisdiction by any competence will result in complementarity becoming a way for states to avoid their obligations under the principle aut dedere aut judicare. If that were to develop, complementarity would not help to achieve the goal of accountability for international crimes, particularly jus cogens crimes. Another area that the legal literature on complementarity has not been explored is the effect of ne bis in idem, which is when one jurisdiction exercises its competence in a given case and over a certain person, and another one subsequently seeks to exercise its independent competence.63 If complementarity is to be understood as an outcome of a civitas maxima,64 which places upon states certain international obligations65 such as the duty to prosecute or extradite because its goal is accountability, then surely the substantive and procedural norms of ICL, as well as its enforcement techniques must become, at least, more harmonized. Thus, the jurisdictional concept of complementarity can be an indirect stimulus to the harmonization and eventual unification of ICL’s substantive and procedural norms. In turn, uniformization of international and national norms defining international crimes will reinforce the complementary relationship between international and national judicial organs, as well as between national judicial organs. This concept is the most likely path for ICL’s integration into a comprehensive system. In other words, as the different components of ICL, because of an extrinsic process, become more internally harmonized and externally more integrated, ICL will achieve the systemic cohesion and coherence it now lacks. This will not be due to any traditional doctrinal formulation, but to the conditioning exigencies of converging state interests and internationally-recognized values. The doctrine of ICL will therefore develop as a consequence of its evolution, as opposed to being the source of its formation. In other words, it will be an evolution akin to that of the common law as contrasted with the civilist and Germanic codification traditions.

63 See infra Chapter VII, section 6.4. 64 See infra section 3.4. 65 See infra Chapter V.

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Consequently, globalization and its exigencies, spurred by the needs for greater international cooperation in penal matters,66 not doctrinal concepts, will determine ICL’s future development. The history of ICL is one driven by facts, characterized by practical experiences, dominated by pragmatism, and constantly gripped by the conflicting demands of realpolitik on the one hand, and those of justice on the other.67 Section 2. The Peculiarities of ICL Enforcement Regimes Because ICL consists of different components deriving from separate legal disciplines, as discussed above, the enforcement of ICL has evolved through different legal regimes whose systemic characteristics are described below. These regimes tend to overlap, despite reliance upon the same legal techniques.68 For instance, as stated above, ICL enforcement embodies two legal regimes: the “direct enforcement system”69 and the “indirect enforcement system.”70 However, a legal regime that applies to inter-state cooperation in the enforcement of domestic criminal law violations also exists.71 That regime is the paradigm for the “indirect enforcement system,” and in some respects it is also the paradigm of the “direct enforcement system.” The “direct enforcement system” is a regime applicable to international judicial institutions which have the power of enforcing their orders and judgments without going through states or any other legal authority. The only two comprehensive examples of such a regime are the IMT and the IMTFE.72 Other internationally created institutions like the ICTY, ICTR, and ICC are, for the reasons mentioned below, less comprehensive because they depend on other institutions for the enforcement of their orders and judgments. The ICTY and the ICTR also fall into the category of the “direct enforcement system” because they are international judicial bodies.73 Similarly, the ICC also partakes of both categories.74

66 See infra Chapter V, section 5. 67 See infra secs. 3 and 4; Chapter VIII. 68 See infra Chapters V, VI. 69 See infra Chapter VI. 70 See infra Chapter V. 71 Id. 72 See infra Chapter VI. 73 The ICTY and ICTR can resort to the Security Council to request that body’s sanctioning authority in cases of non-compliance by states; they rely on the “indirect enforcement system.” Consequently, the Security Council’s powers are not strictly enforcing powers, meaning powers to execute the orders and judgments of the ICTY and ICTR. Rather, they are sanctions or coercive powers applicable in cases of non-compliance. 74 The ICC relies strictly on the “indirect enforcement system.” See ICC Statute, pt. 9, arts. 86–102; infra Chapter VII.



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Since the year 2000, a new hybrid form of quasi-direct enforcement has developed, namely that of the mixed-model tribunals.75 These mixed-models have been established in the courts of Kosovo, Bosnia and Herzegovina, Sierra Leone, Timor-Leste, Cambodia and Lebanon. Probably the only thing these tribunals have in common is the fact that they were established pursuant to a Security Council resolution, or an agreement between the Secretary General of the UN and the government of a given state or both. Each agreement varies from the others. The applicable substantive law is usually ICL, particularly with respect to the definitions of genocide, crimes against humanity and war crimes though they are not always consistent. This of course adds to the uncertainty of customary international law norms but more so with respect to crimes against humanity which unlike war crimes and genocide lacks a unifying convention.76 Consequently, the jurisprudence of these tribunals will vary and their contribution to the clarity of customary international law norms is questionable. The procedures of these mixed-model tribunals also varies. There appears to be an effort to include international due process norms and standards in these procedural norms, but again the diversity that exists makes a questionable contribution to customary international law. It is hard to say that these mixed-model tribunals are anything more than hybrid systems dictated by political circumstances and by economic considerations after the costly experiences of the ICTY, ICTR and ICC.77 Indeed, all of these mixed-model tribunals have proven to be much less costly than the ICTY, ICTR and ICC; but they are also limited in duration and limited in scope. These entities have been deemed to be part of the direct enforcement system although they only partake of some of the characteristics of that system. The “indirect enforcement system” is the legal regime whereby the enforcement of ICL is accomplished through national legal systems.78 Consequently, it is also the regime that applies to international judicial bodies which do not have the legal authority or capability of directly enforcing their orders and judgments without going through the authority of states. It is, however, the regime that applies to the enforcement of ICL obligations, whether they derive from customs or conventions.79 Contemporary international judicial bodies lack direct enforcement systems, which have to go through the intermediation of states to enforce their orders and judgments, rely on national laws and national legal institutions.80 Thus, in 75 See infra Chapter VIII. 76 See Bassiouni, Crimes Against Humanity, supra note 1, at 218–22. 77 M. Cherif Bassiouni, Perspectives on International Criminal Jusitce, 50 Va. J. Int’l L. 269, 308–10 (2010). Through the end of 2011 the ICTY has had a cumulative budget of approximately $1.8 billion, the ICTR approximately $1.7 billion and the ICC $1.1 billion (€830 million). 78 See infra Chapter V. 79 See infra Chapter III. 80 See infra Chapter V.

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this situation, the enforcement of international judicial orders and judgments will be as effective as the national legal institutions on whose intermediation the execution of the international mandates depend.81 With respect to the general enforcement of ICL conventions, these conventions contain obligations requiring states to undertake enforcement through their national legal systems. Such undertakings include the duty to criminalize the proscribed conduct, prosecute its violators, extradite accused or convicted perpetrators of these crimes to states seeking to prosecute or execute sentences of conviction, and provide legal assistance to states investigating the commission of these crimes.82 Furthermore, to strengthen that system, ICL also provides for universal jurisdiction with respect to certain international crimes.83 “Inter-state cooperation in penal matters” is the legal regime applicable between states for the enforcement, at the inter-state level, of their respective domestic criminal laws.84 In this regime, states rely on bilateral and multilateral relations, as well as on their respective national legislation. The techniques, or modalities as they are called in this book,85 which states utilize in connection with their cooperation with respect to domestic criminal law enforcement, are the same as those employed by states with respect to the enforcement of ICL legal obligations and the enforcement of international judicial bodies’ orders and judgments. Additionally, although the “indirect enforcement system,” a regime peculiar to the enforcement of ICL, may utilize the same modalities employed in inter-state enforcement of domestic criminal violations,86 the commonality of these modalities should not confuse the distinction that exists. The difference between these regimes derives from the nature of the crimes, i.e. national and international, as well as from the divergent legal authority issuing orders or 81 Id. 82 See infra Chapter III. 83 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001); The Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001); Menno T. Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001); Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000); Universal Jurisdiction (Stephen Macedo ed., 2003). 84 See infra Chapter V. 85 The eight modalities which are common to these enforcement regimes are: extradition, legal assistance, transfer of execution of penal sentences, recognition of foreign penal judgments, transfer of criminal proceedings, seizure and forfeiture of assets derived from criminal conduct, intelligence and law enforcement information-gathering and information-sharing, and regional and sub-regional “judicial spaces.” They are discussed in Chapter V. International cooperation between law enforcement and intelligence agencies, which is an administrative prevention and enforcement modality, is so far regulated neither by treaty nor by national legislation. It should be noted ICL’s enforcement, which is dependent upon these eight modalities, will be as good as these modalities will be made to work effectively at the level of the states whose enforcement cooperation is requested. 86 See infra Chapter V.



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judgments. These differences reflect the applicable source of law from which different legal obligations flow.87 Thus, jus cogens international crimes impose certain legal obligations on states irrespective of specific treaty obligations or national legislation.88 Alternatively, this is not the case with respect to domestic crimes arising under the national laws of a given state, since these crimes do not give rise to international enforcement obligations. In addition to the two models of indirect and direct enforcement, a third model has developed under the ICC statute, which is referred to as the “complementarity” model.89 To a large extent, this model is an extension of the indirect enforcement model because it relies on national prosecution. However, it is mandated by the ICC statute which is an international institution. The ICC is at this point in time the epitome of the direct enforcement system even though it is created by treaty and relies on its state parties’ cooperation. Nevertheless, it is also the product of states who accede to the treaty and accept the jurisdiction of the ICC as an extension of their national jurisdiction. Thus, complementarity is the foundation of the ICC’s jurisdiction. National jurisdiction remains the primary jurisdiction and only when it is “unable or unwilling” as stated in Article 17 of the ICC statute does the ICC become competent to assume jurisdiction. Admittedly, the relationship between each state party and the ICC is a direct relationship which in some respect places the ICC in a vertical jurisdictional relationship to national legal systems. This means that it is the ICC that ultimately determines whether a state party is “unable or unwilling” or has fulfilled its obligations to investigate and prosecute. In addition, that vertical relationship requires states to cooperate with the ICC using the same modalities as are employed in the indirect enforcement system, giving the ICC, however, a kind of fast track priority over similar modalities employed by states in connection with bilateral relations. Nevertheless, state systems prevail in their legal determinations in connection with such modalities, and national laws apply.90 The ICC complementarity system which now involves the 12191 state parties to the ICC statute derives from the international legal system established by the ICC statute, which should not really be regarded as different from any other international treaty obligation undertaken by a state when it becomes a party to an ICL convention. Therefore, the complementarity system may be said to be a boost to the indirect enforcement system. Like ICL conventions which require states to enact national legislation incorporating the prohibited international crime into domestic law, the ICC statute

87 See infra Chapter V. 88 See infra Chapter III, section 3. 89 See infra Chapter VII. 90 See infra Chapters VII and IX. 91 See The States Parties to the Rome Statute, ICC, available at http://www.icc-cpi.int/Menus/ ASP/states+parties/ (last visited May 10, 2012).

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requries the adoption of national legislation to implement the statute and that applies to the crimes contained in Articles 6, 7 and 8 which relate to namely genocide, crimes against humanity and war crimes. Aggression has been defined at the last review conference held in Kampala, Uganda, from May 31 to June 11, 2010, in resolution RC/Res. 6 of 11 June 2010 which was adopted and inserted into the ICC statute as Article 8bis, but is not in effect.92 The difference between ICL conventions and the complementarity regime of the ICC statute is that ICL conventions obligate states to include the prohibition in their domestic criminal law and to prosecute or extradite as discussed above.93 The complementarity model is not obligatory to a state party. But if a state party elects to exercise that option, that state party has to apply the substantive law of the ICC namely the definition of the crimes, but it applies its national general part of criminal law as well as procedural law. Some non-state parties have also developed national legislation incorporating the three crimes contained in the ICC statute Articles 6, 7 and 8, namely genocide, crimes against humanity and war crimes as a way of indirectly carrying out the complementarity goals of the ICC statute but also having the benefit of not being subject to the ICC’s hierarchical decision of determining whether a given non-state party has effectively carried out these obligations. Whereas, in the indirect enforcement model, ICL conventions require states to engage either in prosecution or to provide for extradition to a state willing to do so; in the ICC complementarity model, this is optional with a state party, but if that state party wishes to exercise that right, it has to apply the substantive law contained in the statute, which the statute in any event requires state parties to make part of their national implementing legislation. It is noteworthy that states which are non-state parties to the ICC are also carrying out legislative activity similar to the complementarity action of states parties, and in this way, the ICC contributes to the enforcement of ICL limited to these three crimes and also enhances national prosecution of these crimes. There are additional benefits to those national legal systems which attempt to implement the substantive provisions of the ICC statute. These benefits include the strengthening of the principle of individual criminal responsibility, a review and update of other related provisions of domestic criminal codes, increased governmental pressure to pursue the domestic counterpart of the international crimes provided for in the ICC statute as citizens become more aware of the issues and potential to bring offenders to justice.94 92 See Rome Statute of the International Criminal Court, art. 8bis, http://www.icc-cpi.int/NR/ rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf. The language defining the crime of aggression draws on the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974. 93 See infra Chapter V. 94 Open Society Justice Initiative, International Crimes, Local Justice, 28, 2011.



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Section 3. The Policies and Values of ICL and Their Systemic Development The words of Montesquieu concerning the decent conduct of nations are most appropriate in opening this section: Le droit des gens et naturellement fondé sur ce principe que les diverses nations doivent se faire dans la paix le plus de bien et dans la guerre le moins de mal qu’il est possible, sans nuir à leurs véritables intérêts.95

The four factors which condition the values and policies of ICL are: (1) the mutual interests of states in cooperating to prevent and suppress international and domestic criminality, (2) the demands of national sovereignty, (3) the impulse for humanistic and humanitarian values, and (4) the need for world order. These factors reflect the selfish or narrow political interests of states, the values and aspirations of international civil society, and the international community’s perceived need for world order.96 The somewhat contradictory nature of a number of these factors engenders a tension reflected in the policies and practices of ICL, while also illustrating a lack of consistency, continuity, and cohesiveness among these policies and practices. The social and political dynamics of these factors make it equally difficult to assess the impact on ICL’s history and to predict their future impact, and thus ICL’s evolution. Empirical observation leads to the conclusion that ICL is particularly susceptible to unpredictable events, making ICL, more than any other legal discipline, one that is driven by facts as opposed to policy.97 For the same 95 “International law is founded on the principle that nations, in times of peace, should do each other the greatest good, and in times of war, the least of harm possible without harming their real interests.” Charles de Secondat Montesquieu, De L’Esprit des Lois, Livre I, c.3, 1748 (La Pléiade ed., 1974). 96 See infra section 4 (discussing, in expanded form, these values and policies). 97 For example, the extraordinary human tragedies of World War II brought about the IMT and the IMTFE, but no investigatory or adjudicatory institution was established between 1945 and 1992. It was the Security Council in 1992, which established, pursuant to Resolution 780, the Commission of Experts to Investigate Violations of International Humanitarian Law in the former Yugoslavia. This led, in 1993, to the establishment of the ICTY, through Security Council Resolution 808 (Feb. 1993). See Bassiouni, Yugoslavia Tribunal, supra note 36; Morris & Scharf, supra note 37; M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 88 Am. J. Int’l L. 784–805 (1994); M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 Crim. L.F. 279–340 (1994); M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, in PostConflict Justice 429 (M. Cherif Bassiouni ed., 2002); Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925 (2000). Then, as a result of the genocide in Rwanda, the Security Council, in 1994, established the ICTR by Resolution 955. See Morris & Scharf supra note 37; William Schabas, The Rwanda Case: Sometimes It’s Impossible, in Bassiouni, Post-Conflict Justice, supra, at 499.

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reasons ICL, unlike other legal disciplines, cannot be appraised on the basis of any traditional legal method. As a result of its unique values and policies, ICL has not evolved in a linear, cohesive, consistent, or logical fashion. Instead, it has developed in bits and pieces through different experiences which may or may not be linked to one another. Therefore, although ICL’s historical evolution can be identified and appraised from different perspectives, the more appropriate method is the functional approach, which assesses ICL through its twin enforcement methods, the “direct enforcement system” and the “indirect enforcement system,” and through its common values and goals of preventing and suppressing international criminality. 3.1. The Historical Evolution of the “Direct Enforcement System” The evolution of the “direct enforcement system” can be considered part of the same historical continuum as the “indirect enforcement system”.98 Thus, one can identify certain historical precursors to the IMT and the IMTFE in the same way that these two institutions can be considered precursors of the ICTY and ICTR. In turn, it can be said that these four institutions are the historical foundation of the ICC. But while the historic links between the IMT, IMTFE, ICTY, ICTR, and ICC are relatively easy to identify, the historical links These events and the tragedies that occurred between 1945 and 1995 led to the establishment of the ICC in 1998 by the treaty of Rome. Yet some governments, in particular the United States, pulled back from their commitment to international criminal justice, and opposed the ICC. See The United States and the International Criminal Court, 64 Law & Contemp. Probs. (Madeline Morris, special ed., 2001); Benjamin B. Ferencz, Misguided Fears About the International Criminal Court, 15 Pace Int’l L. Rev. 1 (2003); Ruth Wedgewood, The Constitution and the ICC, in The United States and the International Criminal Court (Sarah Sewell & Carl Kaysen eds., 2000); John Bolton, The Global Prosecutors: Hunting War Criminals in the Name of Utopia, Foreign Aff. (Jan/Feb 1999); Bartram S. Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855 (1999); Diane Marie Amann & M.N.S. Sellers, The United States of America and the International Criminal Court, 50 Am. J. Comp. L. (Vol. L. Supp.) 381 (2002); Jamie Mayerfeld, Who Shall be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights, 25 Hum. Rts. Q. 93 (2003). The events of 9/11 have brought about an increase in inter-state cooperation with respect to intelligence-gathering and information-sharing, and law enforcement cooperation. Paradoxically, it has not necessarily enhanced institution-building and norm-development in inter-state cooperation in penal matters. See M. Cherif Bassiouni, Legal Controls of International Terrorism: A PolicyOriented Perspective, 43 Harv. Int’l L.J. 83 (2002). 98 See infra Chapter VI; see also, M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 International Criminal Law: International Enforcement 29 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL]; M. Cherif Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 16, at 269; William A. Schabas, International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 Bassiouni, ICL, at 611; M. Cherif Bassiouni, International Crimes: The Ratione Materiae of International Criminal Law, in 1 Bassiouni, ICL, supra, at 129.



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between preceding experiences and the IMT and the IMTFE are more difficult to establish.99 It may suit the purposes of those fashioning the history of ICL to consider earlier sporadic experiences as being on the same continuum,100 but that is essentially the product of ICL’s protagonists’ desire to give historical substance to this discipline. Indeed, these few and far between experiences preceding the IMT and IMTFE cannot be deemed to be part of a linear and progressive evolution on a path whose legal expectations lead to the establishment of an international criminal justice system. But then, as Robert Jackson noted to the President of the United States in his report on the Nuremberg trials,101 if Nuremberg was not the embodiment of a custom, it was the emergence of a custom, in that he relied on the words of the French philosopher Blaise Pascal, “Every custom has its origin in a single act.”102 A more accurate reading of history is that postWorld War I expectations of international criminal justice are the direct precursors of the IMT. Even so, as with so many historic events, it was a fortuitous event that brought Robert Jackson into the position of Chief U.S. Prosecutor, one with access to two Presidents of the United States, in a war in which the U.S. was the dominant power among the victorious allies. As is the case with many   99 The post-World War I efforts to establish an international criminal justice system arising out of the Treaty of Versailles (1919), did not materialize. Neither the German emperor nor persons accused of war crimes pursuant to Articles 227, 228, and 229 of that Treaty were prosecuted before international tribunals. Instead, the German Supreme Court prosecuted twenty-two persons in Leipzig in 1923 as a substitute to the international judicial body as provided by this treaty provision. The Leipzig prosecutions also took place in accordance to German law. Notwithstanding this outcome, these prosecutions can be deemed a precedent or a legal precursor to the IMT. Legal historians, including this writer, also refer to the far more distant precedent of Peter von Hagenbach, who was tried in 1474 before a tribunal consisting of the twenty-six representatives of states comprising the Holy Roman Empire. Another historic prosecution for international crimes of war is the trial of Conradin von Hohenstaufen in 1268, though it was not before an international tribunal. See George Schwarzenberger, International Law 462–66 (1968); Bayard Taylor, A History of Germany: From the Earliest Times to the Present Day 187 (1907); Wolfgang Menzel, Germany from the Earliest Period 629 (1900); A.G. de Barante, Histoire des Ducs de Bourgogne de la Maison de Valois, 1364–1477, 16 (1839); M. Cherif Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002); M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, supra note 98, at 29; Schabas, International Sentencing, supra note 1, at 611. 100 Another such episode, though not judicial, is the case of Napoleon Bonaparte, judged by the political consensus of the allies who defeated him, first at Waterloo in 1815 and then a few months later at Fontainebleau. After the first defeat the allies decided that his punishment for war in Europe was his exile to the Island of Elbe, and after the second defeat following his 100 Days Campaign, he was sentenced without trial to his permanent exile on the Island of St. Helena. See Gary Bass, Stay the Hand of Vengeance 38 (2000). 101 Report of Robert H. Jackson to the President, Dep’t of St. Bull, June 10, 1945, at 1071 et. seq. 102 See Bassiouni, World War I: The War to End all Wars, and the Birth of a Handicapped International Criminal Justice System, supra note 99.

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international, as well as national, legal developments, it is the influence of individuals that brings about certain outcomes with durable consequences. Still, it is usually because certain circumstances exist which, when combined with the decisive leadership roles of influential persons, produce these outcomes and their consequences. Thus, it was not until World War II’s terrible experiences, especially that of the Jewish Holocaust,103 and the experiences of the IMT and Subsequent Proceedings, that a universal conscience was awakened among different people across the globe, though not all with the same degree of awareness.104 Yet, even at present, after more than 250 conflicts have occurred between the end of World War II and now, causing anywhere between 70 and 170 million casualties,105 there is reluctance and even opposition by some states to the establishment of the ICC and to the pursuit of international criminal justice.106 3.2. The Evolution of ICL Norm-Development ICL norm development is separate from, though related to, the historical evolution of international enforcement mechanisms through the “direct enforcement system.” The latter reinforces the scant history of norm enforcement briefly described above. In that respect, there is greater support for the proposition of historical accretion of ICL norms. The starting point is in the fifth century B.C.E. China with the writings of Sun Tzu on the Art of War,107 who recommended the humane treatment of the sick, the wounded, prisoners, and civilians and respect for religious institutions in the occupied countries. Although motivated by political realism more than humanitarian considerations, Sun Tzu nonetheless helped advance the protection of persons and places which, several centuries later, international humanitarian law deemed to be protected persons and

103 See Encyclopedia of Genocide (2 vols., Israel Charney ed., 1999). 104 See Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002). 105 See M. Cherif Bassiouni, The Need for International Accountability, in 3 Bassiouni, ICL, supra note 98, at 3. There were two reported studies in the PIOOM Newsletter and progress report in 1994 and 1995: A.J. Jongman & A.P. Schmid, Contemporary Conflicts: A Global Survey of High and Lower Intensity Conflict and Serious Disputes, 7 PIOOM Newsletter and Progress Report 14 (Winter 1995) (Interdisciplinary Research Program on Causes of Human Rights violations, Leiden, The Netherlands), and Study, 6 PIOOM Newsletter 17 (1994); The International Institute of Strategic Studies: 2000 Chart of Armed Conflict (2000); see also, Jennifer L. Balint, An Empirical Study of Conflict, Conflict Victimization and Legal Redress, 14 Nouvelles Études Pénales 101 (Christopher C. Joyner special ed. & M. Cherif Bassiouni, general ed. 1998). 106 As of May 2012, 121 states have ratified the treaty establishing the ICC, while the United States actively opposes it. For an updated list of ICC States-Parties, see The State Parties to the Rome Statute, ICC, http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited May 10, 2012). For U.S. opposition, see supra note 97. 107 Sun Tzu, The Art of War (Samuel B. Griffith trans., 1971).



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targets during armed conflicts.108 In India, a century after Sun Tzu, the Book of Manu109 was found to contain the same admonitions. Other civilizations have also embraced the same ideals.110 What is particularly telling is that the ideals expressed in China, India, and South America were independent of one another and not the product of the migration of ideas. Thus, some other reason must exist to explain this apparent coincidental convergence of values and policies. Similarly, in Europe these ideals developed independently of any intellectual linkage to those developed in the other civilizations mentioned above. European civilizations, however, benefited from cross-fertilization. Herodotus, for example, recounts the wars between Athens and Sparta, and between them and the Persians, deploring the conduct of barbarians almost on the same basis as some of the values and ideals contained in the earlier and more distant civilizations referred to above.111 Independently of what had developed in the practices of Greece and later in Rome, Islamic civilization in the seventh century C.E. expressed and practiced these same ideals.112 They were transformed into specific prescriptions arising out of Prophet Mohammed’s Sunna,113 and pursued by his first two successors, Abu Bakr and Omar Ibn el Khattab.114 These Muslim prescriptions found their way into Western European (Christian) thought and practice. This occurred as a result of almost 300 years of Muslim occupation in Spain and southern Italy, influencing the writings of Vitoria,115 Suarez,116 Ayala,117 and Gentili,118 who were among the founders of European international

108 See M. Cherif Bassiouni, Evolution of International Humanitarian Law and Arms Control Agreements, in M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements 1 (2000). 109 Nagendra Singh, Armed Conflict and Humanitarian Laws of Ancient India, in Études et Essais sur le Droit International Humanitaire et sur les principes de la Croix-Rouge en L’Honneur de Jean Pictet (Christophe Swinarski ed., 1984). 110 See Bassiouni, International Humanitarian Law, supra note 108, at 10–15. 111 Coleman Phillipson, 1 The International Law and Custom of Ancient Greece and Rome 59 (1911); Pierre Roussel et al., La Grèce et L’Orient: Des Guerres Mediques à la Conquête Romaine (2d. ed. 1938); see also Homer, The Odyssey Bk. I, 11, 260–63 (Richmond Lattimore ed. & trans., 1967). The same humanitarian perspectives appeared in Roman thinking, see Marcus Tullius Cicero, De Officiis lib. III, ch. xxii (1483). 112 See Bassiouni, International Humanitarian Law, supra note 108, at 16. 113 See M. Cherif Bassiouni (with Gamal Badr), The Shari’ah: Sources, Interpretation and RuleMaking, 1 UCLA J. Islamic & Near Eastern L. 135, 150 (2002). 114 Siyar al-Shaybani (1335–1336), translated in English Majid Khadduri, War and Peace in the Law of Islam (1955); see also Bassiouni, International Humanitarian Law, supra note 108, at 9. 115 Franciscus de Vitoria, De Indis et de Jure Belli, in Classics of International Law (James B. Scott ed., 1917). 116 Francisco Suarez, On War, in Classics of International Law supra note 115. 117 Balthazar Ayala, Three Books on the Law of War, in Classics of International Law, supra note 115. 118 Alberico Gentili, De Jure Belli Libri Tres, in Classics of International Law, supra note 115.

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law. These progenitors, and later Hugo Grotius119 and others like Puffendorf,120 Burlemaqui,121 and de Vattel,122 produced a historic synthesis between what the Romans called jus in bello and jus ad bellum, which combined the values of natural law in their Platonian/Aristotelian ethical sense,123 and their Christian counterpart expressed in the writings of St. Augustine and St. Thomas Aquinas,124 giving rise to the Code of Chivalry in Europe’s Middle Ages125 and subsequently the development of contemporary international humanitarian law.126 These examples are merely fragments of the evolution of human and social values which led to contemporary international humanitarian law and human rights law.127 The former started thanks to Henri Dunant after he witnessed the carnage of the Battle Solferino.128 In 1864, the first Geneva Convention for the Amelioration of the Conditions of the Wounded in Armies of the Field was adopted.129 As a result, an international accretion of norm-making, embodied in fifty-nine international conventions on the humanization of armed conflict, developed.130 Despite the advancement of contemporary normative proscriptions beyond what any predecessor could have contemplated, these conventions of the past illustrate the humanitarian and humanistic values which are discerned in different civilizations going as far back as 7,000 years ago. The evolution of normative IHL has developed at a more pronounced pace than the willingness of governments to accept the need for establishing a permanent universal system of international criminal justice.131 This is due in part to states’ jealously held conceptions of sovereignty, and their dearly held practices of political realism. Thus, the political interests of states still favor ad hoc approaches, evidenced in the ICTY and ICTR, which best reconcile the goals of 119 Hugo Grotius, De Jure Belli Ac Pacis (1625). 120 Samuel Puffendorf, De Jure Naturae et Gentium Libri III (1672). 121 Jean Jacques Burlemaqui, Principes du Droit Naturel et Politique (1748). 122 Emmerich de Vattel, Le Droit des Gens (1758). 123 Aristotle, Nicomachean Ethics (T. Irwin, trans. 1985); Aristotle, Ethics I and Politics I (W.D. Ross, trans. 1954); see also Cicero, De Republica and De Legibus (C.W. Keyes, trans., 1928). 124 Thomas Aquinas, Summa Theologica (1485); see also Alessander Passerin D’Entrèves, Natural Law: An Introduction to Legal Philosophy (2d ed., 1970); Lloyd Weinreb, Natural Law and Justice (1987). 125 See Maurice H. Keen, The Laws of War in the Late Middle Ages (1965); Honoré Bonet, Tree of Battles (ca. 1387). 126 See M. Cherif Bassiouni, The Evolution of International Humanitarian Law and Arms Control Agreements, in Bassiouni, International Humanitarian Law, supra note 108, at 1. 127 See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 128 Jean Henri Dunant, Un Souvenir de Solferino (1862). 129 Convention for the Amelioration of the Conditions of the Wounded in Armies in the Field [First Red Cross Convention, 18 Martens Nouveau Receuil Ser. 1 607]; see also 1 Am. J. Int’l L. (1907). 130 See Bassiouni, International Humanitarian Law, supra note 108, at 83. 131 See Sadat, supra note 62.



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international criminal justice and the pursuit of political ends.132 Further evidence of the schism that exists between humanitarian and humanistic values on the one hand and political realism on the other, is governments’ continued opposition towards the recognition of victims’ rights to justice and to redress.133 Moreover, there is a persistent gap between international humanitarian law and international human rights law.134 The latter still remains substantially prescriptive rather than proscriptive.135 This brief historical excursus reveals the tension between norm development, which reflects the commonly shared values, aspirations of peoples irrespective of their diversity, and the political interests of states. It reveals that enduring human values, though shared by so many, are not yet powerful enough to overtake even the temporary interests of states, particularly those of more powerful states. This tension is what affects the nature and structure of ICL, and thus its normative development and enforcement capabilities. Nowhere is this theory more evident than in the peculiarities of ICL’s enforcement regimes.136 132 See Bassiouni, Post-Conflict Justice, supra note 97; Gary Bass, supra note 100. 133 The opposition of states has blocked the adoption of international guidelines on victim compensation. It is noteworthy that the opposition is to non-mandatory guidelines which evidences the distance that still has to be traveled to achieve an internationally binding norm. After 1984, when the Basic Principles of Justice for Victims of Crime and Abuse of Power were adopted at a meeting in Ottawa which this writer had the honor of chairing, efforts at developing remedies for victims remained essentially an NGO endeavor. In 1993, the sub-Commission appointed Professor Theo Van Boven as Special Rapporteur on the subject of victims’ reparation. His mandate was then established by the Commission on Human Rights, and lasted until 1998, when the Commission appointed this writer as Independent Expert. In reliance upon Van Boven’s prior work, this writer completed two reports and prepared guidelines, which were embodied in a report to the Commission in 2000. Because of the impending United Nations Conference on Racism, which raised concern among governments that different groups of victims would rely on these principles to make claims against governments, the question was temporarily set aside. But continued interest by certain governments and by international civil society brought the question once again to the fore of the Commission’s attention. The final report of the Independent Expert and the principles were submitted to the Commission on Human Rights in 2000. See The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission Resolution 1999/33, U.N. Doc. E/CN.4/62 (Jan. 18, 2000) (basic principles and guidelines on the right to a remedy and reparation are attached as an annex). The Commission did not act on the guidelines pending further consultations between governments, pursuant to its Resolution, The Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. 2002/44 (April 23, 2002). These consultations, which took place in October 2002, resulted in the following report: The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Note by the High Commissioner for Human Rights, U.N. Doc. E/CN.4/2003/63 (Dec. 27, 2002). At its 59th session, the Commission adopted a resolution for the finalization of the principles on the basis of governments’ input (based on U.N. Doc. E/CN.4/2003/L.44 (April 14, 2003)). See also Symposium, International Protections of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988). 134 See Meron, supra note 127. 135 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the International Protection of Human Rights, 9 Yale J. World Pub. Ord. 193–214 (1982). 136 Discussed supra section 2, and infra Chapters V, VI and VII.

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chapter one 3.3. The Historic Evolution of ICL Enforcement through the “Indirect Enforcement System”

Parallel to the evolution of international criminal justice through the “direct enforcement system”137 is the evolution of International Criminal Law through the “indirect enforcement system.”138 The latter applies to international crimes and the enforcement of orders and judgments of certain international judicial institutions, and also relies on the same modalities of “interstate cooperation in penal matters” applicable to violations of national crimes.139 Essentially, because the “indirect enforcement system” functions as an intermediary between states, and thus impinges minimally, if at all, on sovereignty, that system is making greater strides than its counterpart, the “direct enforcement system.” Another explanation is that the “indirect enforcement system” parallels the “inter-state penal cooperation” regime where states have a greater interest in cooperating than they have at the multilateral level. This evidences that state interests have a stronger influence on ICL enforcement than the more altruistic values embodied in the spirit of multilateral cooperation. State interests also explain why cooperation in penal matters is greater within a regional context, where economic, political, and social affinities between states are stronger. Such is the case, for instance, with the European Union140 and the Council of Europe.141 Thus, European ICL will likely develop significantly in the decades to come. This regional development may well become the locomotive, or at least the model, for ICL on a worldwide level. Significant contributions to the progressive development of ICL will continue to derive from enhanced levels of interstate cooperation in penal matters concerning domestic criminality. This phenomenon will also benefit international cooperation in the prevention and suppression of international crimes.142 Moreover, theories of extra-territorial national criminal jurisdiction, particularly universal jurisdiction,143 will contribute to the complementarity between international and national judicial institutions, as well as between national judicial institutions.

137 See infra Chapter VI. 138 See infra Chapter V. 139 Id. 140 For example, the European Council Framework Decision of 13 June 2002, on the European Arrest Warrant and Surrender Procedures between Member States (2002/584/JHA), which gave effect in all EU states to arrest warrants issued by any prosecuting authority of any one EU state. This directive will enter into effect 17 January 2004. See also Giuliano Vassalli, Mandato d’arresto e principio d’egnaglianza, 3 Il Giusto Processo 129 (2002). 141 For the various CE conventions, see La Cooperation Inter-Étatique Européene en Matière Penale (Ekkehart Müller-Rappard & M. Cherif Bassiouni ed., 2d rev. ed. 1991). 142 See infra Chapter V for the modalities of inter-state cooperation, and Chapter III for the contents of international crimes. 143 See supra note 83. At present 18 states have universal jurisdiction and 5 have universal jurisdiction for aggression. Michael Scharf, Universal Jurisdiction and the Crimes of Aggression, 53 Harv. Int’l. L.J. 357, 359 (2010).



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The confluence of the factors above reflects the interests of states, as well as their mutual and shared interests in international cooperation to prevent and suppress both international and domestic crimes. Further, these factors have brought about a synergy of forces that has led to the make-up of contemporary ICL. Notwithstanding the deficiencies mentioned above and throughout this book, there is a de facto jurisdictional complementarity between international and national judicial institutions enforcing ICL. Additionally, a substantive normative complementarity between international and national legal norms exists which, in time, is bound to become harmonized at first and then integrated in the end.144 Since the different components of ICL are functionally inter-related, progress in any one area brings about overall progress. 3.4. The Underlying Concept of ICL Enforcement: A Civitas Maxima145 The “indirect enforcement system” is predicated on treaty obligations.146 These treaty obligations require states to include ICL prohibitions in their domestic criminal laws, thereby transforming international crimes into domestic crimes. Moreover, ICL treaty obligations contain provisions that impose the duty on signatories to prosecute or extradite, and to provide legal assistance to states seeking to prosecute.147 Because treaties are the source of these obligations, they are only binding on state parties. Non-state parties may, however, be bound by the substance of these obligations if they arise under general international law, particularly if the crimes giving rise to the obligations are jus cogens international crimes.148 The unarticulated premise underlying the obligations to enforce international crimes, in reliance on the “indirect enforcement system,” is that an international community with shared common values exists. It therefore has the same collective interest in upholding these values by enforcing the transgression of norms which embody them. Consequently, the international community collectively and in its singular units, has an obligation to prevent and suppress certain international crimes that adversely affect the values and interests of that community.149 144 See supra section 1.3. 145 This section is based on M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law 28 et seq. (1995). 146 See International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997). 147 Id. 148 See infra Chapter III, section 3. 149 “It implies that international law commands human beings to combine for the repression of everything which is gravely injurious to the bases of social life.” W.E. Hall, A Treatise on International Law 68 (A. Pearee Higgins ed., 8th ed. 1924). This argument assumes, to some extent, the existence of a legal order based on social or moral precepts, much like what exists within states, which are common to all states or, rather, to all humanity. The criminal laws of states are assumed

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The implication becomes embedded in the idea of a moral community consisting of all humanity, or at least of enough of humanity to constitute a certain level of political organization that is capable of tangibly exercising collective action. The idea of the world as a single community, a community of humankind, extends back to the Greek Stoics,150 who were inspired by natural law conceptions.151 The idea of an international community of states, however, as understood in the contemporary world, is not dependent on accepting the existence or desirability of a world government.152 Instead, it primarily expresses a sense of human and social solidarity, as well as a utilitarian value derived from common and mutual interests. Additionally, it postulates certain universal objects and moral imperatives that are believed to prohibit certain conduct by individuals and states.153 Consequently, these universal objects and moral imperatives (which can also very well be based on ethical as well as pragmatic considerations) limit the action of states and impel them to cooperate for the common good and common interest of at least a worldwide community of states, if not a community of humankind. Various names have been used to refer to this hypothesis of an international obligation flowing from the commonly shared values and interests of the international community. For instance, the name popularized by Christian Wolff in the eighteenth century, in reliance on Roman Law, is that of a civitas maxima, a higher body politic.154 Wolff was reviving a Roman legal concept intended to apply to the different nations and tribes that comprised the Roman Empire.155

to reflect commonly shared moral or social values, protect a social interest, and are aimed at securing public order. Thus, it is assumed that international crimes which embody commonly shared values are therefore the legitimate concern of peoples and states throughout the world. 150 On the history of this idea, see Walter Schiffer, The Legal Community of Mankind (1954). 151 See D’Entrèves, supra note 124; Weinreb, supra note 124. 152 See Charles R. Beitz, Political Theory and International Relations 182–83 (1979); Governance Without Government: Order and Change in World Politics (James H. Rosenthal & Ernst-Otto Czempield eds., 1992). 153 This is the basis for jus cogens international crimes. See infra Chapter III, section 8. 154 Wolff’s expression is often translated as “supreme state.” This is the convention adopted in the translation in the Classics of International Law series. C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (J. Drake trans. 1934). See also, e.g., 6 (pt. 2) F. Copleston, A History of Philosophy 134 (1960). For a critical view, see Nicholas Greenwood Onuf, Civitas Maxima: Wolff, Vattel and the Fate of Republicanism, 88 Am. J. Int’l L. 280, 287–96 (1994). 155 For Wolff, the civitas maxima was a formal concept, a fiction, a “postulate of reasoning,” with “no constitutional or political content.” W.K. Hancock, Four Studies of War and Peace in this Century 94 (1961). Wolff was quite satisfied with the existing states-system. See Arthur Nussbaum, A Concise History of the Law of Nations 153–54 (2d ed. 1954); see also Onuf, supra note 154. Nor does Wolff assert a duty to extradite or punish; in fact, he believed that states have no business concerning themselves with crimes committed elsewhere. See Wolff, supra note 154, at 82. On the other hand, he does make the presumed existence and “will” of the international community a basis of international law. Thus, Hersch Lauterpacht linked the expression to the assertion that international law ultimately is based on the “will of the international community,”



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To a greater or lesser extent, it is the belief in the existence of a civitas maxima, a collective duty that transcends the interests of the singular and underlies assertions about a common interest in repressing certain international crimes. Some have even argued that it extends to all crimes, wherever they may occur.156 Certain elements in international relations lend plausibility to the hypothesis of a civitas maxima and to the cluster of ideas about international relations which it encapsulates. On the other hand, some elements also lend plausibility to competing and different reflections of relations between states. The three alternative views to a civitas maxima are the anarchical, “rule of law,” and the consensual views of international relations.157 The first of these schools of thought views the international system as essentially anarchical, a field of perennial conflict and power politics. In that perspective, states are depicted as existing in a Hobbesian state of nature in which each state pursues its own interests, defines its own purposes, limited only by considerations of expediency and prudence.158 Force, mitigated so far as may be not the “will of individual States.” 2 H. Lauterpacht, International Law: Collected Papers 15–16 (E. Lauterpacht ed., 1975). For recurrent references to the concept by Lauterpacht, see the indexes to vols. 2 and 3 of his Collected Papers, s. v. “civitas maxima.” See also H. Lauterpacht, International Law and Human Rights 463 (1950): “recognition and protection of human rights may in itself become a significant contributory factor in the consummation of the organized civitas maxima, with the individual human being in the very centre of the constitution of the world.” 156 See Gerhard O.W. Mueller, International Criminal Law: Civitas Maxima—An Overview, 15 Case W. Res. J. Int’l L. 1 (1983); But for a skeptical perspective, see Edward M. Wise, Terrorism and the Problems of an International Criminal Law, 19 Conn. L. Rev. 799 (1987). 157 The following discussion is a reworking of the three “traditions” or categories of thought about international relations identified by Martin Wight in his lectures on “International Theory” at the London School of Economics in the 1950s. See Martin Wight, International Theory: The Three Traditions (G. Wight & B. Porter eds., 1991); see also Martin Wight, An Anatomy of International Thought, 13 Rev. Int’l Stud. 221 (1987). These lectures have only recently been published and for a long while were known mainly through second-hand accounts, such as Hedley Bull, Martin Wight and the Theory of International Relations, 2 Brit. J. Int’l Stud. 101 (1976) and Brian Porter, Patterns of Thought and Practice: Martin Wight’s ‘International Theory,’ in The Reason of States 64 (M. Donelan ed., 1978). The three categories are only implicit in Wight’s other published works. See Martin Wight, Power Politics (H. Bull & C. Hobraad eds., 1979); Martin Wight, Systems of States (H. Bull ed., 1977); Martin Wight, The Balance of Power and International Order, in The Bases of International Order 85 (A. James ed., 1973); and his essays in Diplomatic Investigations (H. Butterfield & M. Wight ed. 1968). Nonetheless, Wight’s categories had a considerable influence on academic writing about international relations in Britain. See, e.g., Hedley Bull, The Anarchical Society 24–27 (1977); and the papers collected in Diplomatic Investigations, supra; System of States, supra; and The Community of States (J. Mayall ed., 1982). A comparable three-part distinction now seems to be “fairly standard” in categorizing normative thinking about international relations. Lea Brilmayer, Justifying International Acts 29 (1989); see also infra section 4; cf. Joseph S. Nye, Jr., Nuclear Ethics 27–41 (1986); Mark J. Hoffman, Normative Approaches, in International Relations: A Handbook of Current Theory 27 (M. Light & A.J.R. Groom eds., 1985). 158 Thomas Hobbes did not, however, negate the intrinsic power of law as he states in Leviathan: Sive de Materia, forma et Potestate civitatis, Ecclesiastica et civili III (1841), non autoritas sed veritas lex facet. But that applied, as discussed below, to internal society. See infra notes 152–66 and accompanying text.

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by such considerations, is nevertheless the ultima ratio which remains available to states to resort to at will. No moral rules restrain states in their relations with one another, and only those legal rules that they wish to be bound by limit their conduct. Enlightenment, expediency, and prudence are therefore the selfcontrol mechanisms; and why is that not sufficient if states are expected to act in an enlightened and wise manner? This chimeric notion, however, leaves no alternative if one accepts the anarchical view of international relations. This leads to the conclusion that it can only produce chaos and conflict, unless a balance of power exists, as was the case during the Cold War between 1948 and 1989, or with the imposition of control by a single super-power. The alternative is necessarily another view of world order, which some recognize on the basis of the “rule of law.” Those who question that approach suggest binding rules of law are only valid in the context of a national civil society, and thus applicable only to the internal affairs of a state. In a perspective in which there is no worldwide community, a so-called international system based on the “rule of law” is a moral and legal vacuum, or, as in the Hegelian version, the morality of states lies only in self-assertion.159 Nevertheless, this perspective on international relations recognizes that there are some minimum ground rules that by necessity govern interactions between states. These rules do not necessarily govern as “rules of law,” because the rules governing relations between states do not have the quality of law in the same sense as rules governing relations between individuals in civil society. Rules governing international relations are considerably more fragile, if not aleatory, because they are open to interpretation by those who are subject to them, and, as always, likely to give way as soon as countervailing considerations of self interest appear. To such “realists,” as they are called in the parlance of political science, the disjunctive forces in international life predominate so much as to make it implausible to accept international law restraining states in their conduct because there is no given international law and no given international law enforcer. Thus, since there is no international community controlled by the “rule of law,” there is no universal concept of crime.160 Oliver Wendell Holmes subscribed to that view, which retrospectively reflected the reality of a world that had yet to experience the effects of globalization. He stated in 1920 that “the sacredness of human life is a purely municipal idea of no validity outside the jurisdiction”—ergo, no international criminal law except insofar as it reflects the will of the state.161 159 Georg W.F. Hegel, Phenomenology of Spirit (A.V. Miller trans., 1979); Georg W.F. Hegel, Philosophy of Right (S.W. Dyde trans., 1996). 160 “Where no civil society is, there is no crime.” Thomas Hobbes, Leviathan 190 (M. Oakeshott ed., 1957) (1651). 161 Letter from Oliver. W. Holmes to Frederick Pollock (Feb. 1, 1920), in 2 Holmes Pollock Letters 36 (M. Howe ed., 1941). Based on that view, it would be implausible to consider genocide,



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Globalization, however, has certainly changed the context in which this observation is applied.162 Another set of views is a pattern of thought about international relations in which the international system is seen neither as a state of nature nor as the inclusive moral community implicit in the hypothesis of a civitas maxima. Rather, it is viewed as a society of states in which states, not individuals, are its members. Rules of international law exist, but there are agreed upon restraints, voluntarily accepted by states, and thus binding on the conduct of its members by their consent. States, therefore, pursue goals which they set for themselves, and they are constrained by voluntarily enforced prescriptions that make it possible for them to coexist as an amorphous society with a minimum of conflict. In this view of the international society, no universal common good exists that requires states to pursue, collectively or individually, particular substantive aims.163 According to this more recent view of international law, the degree of cohesion normally associated with the idea of a community of states is missing.164 But neither is there such a complete anarchical state of affairs as to render the idea of international law implausible. The exigencies of the twenty-first century have, however, altered this conception, moving it more toward a “rule of law”oriented international society. There are three further observations to be made about these competing views of the nature of international relations. First, they are paradigms, analytical categories like Weberian ideal types,165 and none mutually excludes all characteristics of the others. Elements of each appear in all. Moreover, each can be divided into sub-categories defined in terms of qualifications and involutions suggested by the others. One can come up, for instance, with more or less “realistic” or more or

crimes against humanity, and war crimes as jus cogens international crimes. See Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 16, at 269. 162 See infra Chapter VIII. 163 This is the central argument of Terry Nardin, Law, Morality, and the Relation of States (1983). 164 The terms “community” and “society” are said to have “slightly different ranges and flavours in ordinary usage” and no completely “settled resonance or connotation.” John Finnis, Natural Law and Natural Rights 135, 156–57 (1980). They are used here to indicate, like Tonnies’ distinction between Gemeinschaft and Gesellschaft, two polar forms of human association: “community” implies the higher, “society” the lesser, degree of cohesion or solidarity. See also George Schwarzenberger, Power Politics 12–13 (2d ed. 1951); George Schwarzenberger, Civitas Maxima?, 29 Y.B. World Aff. 337 (1975), reprinted in Georg Schwarzenberger, The Dynamics of International Law 107–134 (1976). But, for a different usage of the two terms, compare R.G. Collingwood, The New Leviathan 138–47 (rev. ed. 1992) (1942), where “community: is treated as the looser form of association (almost equivalent to “class”), while “society” is defined as a community whose members share a “social consciousness.” 165 Max Weber, Theory of Social and Economic Organization (1947).

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less “idealistic” or “cosmopolitan” versions of a “society of states;”166 one may also be more or less “progressive” and “humanitarian,” more or less backward-looking, etc., in describing what the idea of an international community implies.167 Second, international relations cannot be adequately described entirely in terms of any one of these three patterns. None provides a completely accurate account of what the international system is actually like; none catches exactly the whole reality or scope of international relations. Each pattern points to certain features, more or less contextually relevant, which is likely to get other features out of focus. It is not a matter of deciding which one is true and all are true to some extent. Only their complementary adequacies and inadequacies supply anything that may explain the fabric of international relations. At different times, for different purposes, one or the other may seem to come closer to describing the actual relations and the conduct of states in particular circumstances. Third, each of these paradigms imparts elements of prescription, as well as description, or a view of how international relations are or ought to be conducted. Readiness to accept one or another as an accurate description turns, to some extent, on beliefs about what international relations should be like, yet each embodies an influential and durable set of ideals or permanent mutual interests, such as the preservation of world order.168 The principles implicit in each, such as national self-assertion, non-intervention, and universal respect for human rights, represent important but ultimately difficult to reconcile aspirations. Thus, in their prescriptive aspect, these paradigms are a way of expressing the implications and the incommensurability of the ends that shape the conduct of states in their international interactions. The pattern of thought which represents the international system as a “society of states” incorporates many of the premises of traditional international law. From its beginnings, what we know as international law has been largely based

166 Wight termed this paradigm the “Rationalist” or “Grotian tradition.” Within this tradition, Grotius himself stands toward the “cosmopolitan” pole. The notion of a “Grotian conception” has sometimes been used more narrowly to refer to the cosmopolitan or solidarist pole of the wider “Grotian tradition.” See, e.g., Hedley Bull, The Grotian Conception of International Society, in Diplomatic Investigations, supra note 157, at 51; Hedley Bull, The Importance of Grotius in the Study of International Relations, in Hugo Grotius and International Relations 65 (H. Bull, B. Kingsbury & A. Roberts eds., 1990). This is a rife source of confusion. On these two senses of “the Grotian conception,” see Tony Evans & Peter Wilson, Regime Theory and the English School of International Relations: A Comparison, 21 Millennium: Journal of Int’l Studies 329 (1992); Nicholas J. Wheeler, Pluralist or Solidarist Conceptions of International Society: Bull and Vincent on Humanitarian Intervention, 21 Millennium: J. Int’l Stud. 463 (1992); R. J. Vincent, Order in International Politics, in Order and Violence: Hedley Bull and International Relations 38, 40–41 (J.D.B. Miller & R.J. Vincent eds., 1990). 167 Wight termed his third paradigm “Revolutionist;” it is exemplified in ideologies of the Reformation and French Revolution, and also in ideologies of Counter-Reformation and CounterRevolution—in all ideologies that preach the imperative of human solidarity. See Bull, supra note 157. 168 Myres McDougal et al., Law and Minimum World Public Order (1961).



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on the idea of a “society of states.” It has been predicated on a rejection of both the ideas that states exist in a Hobbesian “state of nature” and of the medieval view that Europe, where such views originated in some sense, formed a single community.169 In Islam, Ummah represents the notion of the community of people.170 The Islamic concept, contrary to the Western European conception of a “society of states,” is a unitarian one, because it flows from the belief that man’s law must conform to divine law, which derives from the Shari’a.171 Western moral philosophers dealt separately with the sovereign entity, and with those individuals comprising that community. Gierke’s account of Western European natural law thinking172 draws a distinction between three views of the nature of international relations prevalent in early modern Europe that coincide with the three paradigms discussed above: (1) the tendency (sustained by the lingering medieval idea of a universal empire) for the concept of an international society to harden into that of a world-state, with a real group authority attributed to the international legal community; (2) the view of Bodin173 and 169 See Hobbes, supra note 160. For some Western moral philosophers, humanity is understood to mean those within the national community, while for others it has a more universal meaning. Immanuel Kant referred to it as menschheit. He also addressed the duty of humanity in its Latin meaning of humanitas. The values of menschkeit are universal, because they are based on universal reason that harkens back to Aristotle’s concept of ethical reason as constituting universal law. See Aristotle, Ethics, I and Politics, I (W.D. Ross trans., 1954). For Kant, the coalescence of values and reason become the individual’s own personal legitimacy which he refers to as in sich enhält. Reason is elevated to a fact as in das facktum der vernunft. See Immanuel Kant, Groundwork of the Metaphysics of Morals (H.D. Paton trans., 1946). Hegel, however, sees Kant’s metaphysical groundwork as reflecting a perfect world, thus the need to reconcile it with the imperfect world. See Georg W.F. Hegel, Elements of the Philosophy of Right (H.B. Nisbet trans., 1991). Thus, for Hegel, the institutional view of ethical life or sittlichkeit is inspired by the spirit, geist, which goes beyond the reason. These and other views of moral philosophers have inspired and even shaped national criminal justice systems, and now indirectly they influence international criminal justice. See Chapter X, section 2. For a discussion of these views, see Lectures on the History of Moral Philosophy, John Rawls (Barbara Herman ed., 2000). 170 See Muhammad Hamidullah, The Muslim Conduct of State (4th ed. 1961); S. Ramadan, Islamic Law, Its Scope and Equity 42 (1961). 171 See Bassiouni & Badr, supra note 113. 172 Otto von Gierke, National Law and the Theory of Society 1500 to 1800 85–86, 195–98 (Ernest Barker trans., 1934; reprinted in 1957). This is a translation of 4 Otto von Gierke, Das deutsche Genossenschaftsrecht 361–63, 535–41 (Graz, Akademische Druck-u. Verlagsanstalt, 1954) (1913). 173 Jean Bodin, Les Six Livres de La République (1580). Bodin’s Six Livres was first published in French in 1576; in Latin in 1586. The French and Latin texts differ substantially. The only complete English translation, published by Richard Knolles in 1606, is a composite drawn from both the French and the Latin versions. Jean Bodin, The Six Books of a Commonwealth (K. McRae ed., 1962) is a corrected facsimile reprint of Knolles’ translation. Jean Bodin was the first in the Western world to articulate the concept of state sovereignty as representing the unified source of state authority. His rationale was that such a unified source of authority, as reflected in the concept of state sovereignty, was indispensable to the internal legal order and presumably to the legal order applicable to relations between states. Jean Bodin, De Republica (1576). This historical conception is discussed in Sir Robert Jennings, Sovereignty and International Law, in State Sovereignty and International Governance 21–33 (Gerard Kreijen et al. ed., 2002). Professor Jennings also refers in that context to J.L. Brierly, The Law of Nations, 7 (1955).

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Hobbes,174 which rejected in toto the idea of a natural community uniting states; and (3) the idea of an international society involving a system of rights and duties mutually binding on states in their relations with each other, but not with the authority of the whole over its parts.175 It was this third view which ultimately predominated and shaped the development of modern international law.176 But each of these three views corresponds to persistent elements in international relations; each has continuing validity as a partial description of important features of the international system. While one may be dominant at a given moment, a full picture requires taking all three into account. Like the paradigm of a “society of states” in Western European legal thinking, the concepts of traditional international law present a partial and fragmented view of what the world is really like.177 They have come to seem inadequate precisely because they exclude significant developments that make the world appear, more than ever, like a genuine community. It is fashionable to view the contemporary world as undergoing a process of transition from an international system in which the dominant element is the nation-state, to one more nearly predicated on the common good of the global community. In certain respects, this movement toward global integration is a reversal of the break-up of Latin Christendom associated with the Peace of Westphalia (1648), which marked the beginning of the modern state-system. Professor Richard Falk, among others, has referred to a movement from a system order based on “the Westphalian tradition” of territorial sovereignty to a more cohesive form of international order.178 Contemporary international law is thus viewed as embodying two intersecting

174 See Hobbes, supra note 160. 175 Grotius, although inspired, to a large extent, by ideas of human solidarity and Christian unity, is a significant precursor primarily because he tried to strike a middle ground between thinking of Latin Christendom as a single community or super-state and the temptation to conclude that otherwise there could be no moral or legal bonds between separate sovereigns. Hugo de Groot Grotius, supra note 119. 176 See F.H. Hinsley, Sovereignty 186–92 (1966); cf. Bull, The Importance of Grotius, supra note 166, at 71–72. 177 Cf. Anthony Carty, The Decay of International Law (1986). 178 See, e.g., Richard Falk, Revitalizing International Law (1989); Richard Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, in International Law: A Contemporary Perspective 651–702 (R. Falk, F. Kratochwil & S. Mendovitz eds., 1985); Richard Falk, The Interplay of Westphalia and Charter Conceptions of International Legal Order, in International Law: A Contemporary Perspective, supra, at 116–42; Cornelius Murphy, The Search for World Order: A Study of Thought and Action (1985). Professor Thomas Franck states, “The nation of the sovereign equality of states may be said to have made its debut in modern Western civilization with the Peace of Westphalia.” Thomas M. Franck, The Power of Legitimacy Among Nations 113 (1990). See also, Cornelius F. Murphy, Jr., The Grotian Vision of World Order, 76 Am. J. Int’l L. 477 (1982).



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systems, one superseding the other.179 Indeed, we sometimes argue as if a global community were actually in being.180 But, as Professor Thomas Franck explains, contemporary international legal reality is far more complicated than the relatively simple system of the law of states.181 No one coherent pattern of thought captures it all. In many respects, the global community is, at best, an order in posse. To treat it as a fully existing reality is to “take as proven precisely what requires proof: namely the existence of a sense of community and the willingness of particular collectivities to keep their conduct in conformity with the higher good of a universal community.”182 To do this is

179 This idea has been developed in Antonio Cassese, International Law in a Divided World (1986). 180 The picture is sometimes confused, moreover, by a tendency to use the expression “international community” as if it were synonymous with what we have been calling a “society of states.” Thus, writers who dismiss the idea of “a planetary community of individuals” as unrealistic, and who admit that the primary actors in the international system are still states, and that the continued insistence on state sovereignty prevents “far-reaching integration and community actions in many areas,” nonetheless insist that there can be “no serious doubts about the existence of the international community” because states are prepared to recognize, if not common substantive roles, at least certain procedural roles governing the processes by which international law is made. See, e.g., G.M. Danilenko, Law-Making in the International Community 11–15 (1993). In the sense in which we have been using the terms in this book, this proves the existence of an “international society,” but not an “international community.” 181 See Thomas Franck, The Empowered Self: Law and Society in the Age of Individualism (1999); see also, Rein Müllerson, International Law, Rights and Politics (1994); Rosalyn Higgins, Problems & Process: International Law and How We Use It (1994). 182 Charles De Visscher, Theory and Reality in Public International Law 89 (P.E. Corbett trans., rev. ed. 1968). For a variety of reasons whose description is beyond the scope of this book, the idea that an international community exists though difficult to define, particularly as to its participants’ rights and obligations. That such a community is based on certain humanistic values, though undefined, is also well recognized. See, among the many authoritative texts attesting to that, supra note 2. From an IHL perspective, see inter alia, The International Law and Policy of Human Welfare (R.S.T.J. Macdonald, D.H. Johnston, & G.L. Morris eds., 1978). For earlier views, see J.C. Bluntschli, Das moderne Völkerrecht des civilisten staten als Rechtsbuch dargestellt 60 (2d ed. 1872). For a recent contribution to the debate based on social sciences research, see Paul Schiff Berenau, The Globalized Jurisdiction, 151 U. Penn. L. Rev. 311, 459 et seq. (2002). He points out the different perspectives on the notion of community and refers to ninetyfour social sciences definitions of what constitutes a community. Id. at 459. The European Union’s very existence attests to that proposition of certain community of states, but in this case, it is established by treaty. The rights and obligations of its member-states are contained in a treaty to which adherence is voluntary. But the delegated powers of these states to the governing body of the Union, the Commission, and to other organs, including a tribunal to adjudicate legal issues arising out of the treaty, attests to the autonomous multilateral decision-making authority of these bodies which act on behalf of, and in the interest of, the Community. See Allan M. Williams, The European Community: The Contradiction of Integration (2d ed. 1994). Another illustration is the authoritative decision-making powers of the World Trade Organization. Though also treaty-based, its powers derive not from coercive force in the traditional sense, but from the sanctioning force of economic inter-dependence which after all does reflect the existence of a world economic system or at least of a world economic inter-dependency, which in turn, makes it an element of an international community. The same applies to the international legal regime under WIPO, protecting intellectual property.

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not without its dangers.183 A shift of the center of gravity of international law away from states and towards a more abstract international community would decidedly be a progressive development, whether it would bring about a real transformation in the behavior of states is, however, uncertain. What is certain is that the present state of international relations is not yet conducive to such a transformation. To assume the existence and functioning of an international community runs the risk of heightening expectations with corresponding risks that are bound to be disappointing. To encourage the rhetoric of universality may turn out to be a cloak for hegemonic tendencies by states with the power to decide what is and what is not a universal interest binding on all states.184 Section 4. The Changing Nature of International Law and Relations and Their Impact on ICL The assumptions of political scientists and legal “realists” are not entirely without merit; relations between states are in an anarchic state of nature because they are in a constant struggle for power which is unrestrained except by countervailing power.185 But in the age of globalization, these assumptions have been radically altered.186 The rise of multilateralism attests to the new reality that unilateral power alone is no longer the hallmark of international relations; rather, it

183 See, e.g., Prosper Weil, Towards Normative Relativity in International Law?, 77 Am. J. Int’l L. 413, 441–42 (1983); see also, Appendix on The Concept of International Law and the Theory of International Organization, in Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law 199–301 (1979). 184 To cite only historical examples, the misappropriation of cosmopolitan ideals to serve the ends of power or ideology appears, for instance, in the appeals to solidarity by which the Holy Alliance sought to guarantee the existing order against revolution, and in the recurrent tendency to refer to opponents as hostis humani generis (enemies of all mankind), the expression typically applied to pirates. Tertullian, Apology, xxxvii, 8, 170 (1931) indicates that the expression was applied to early Christians as well. William the Silent was assassinated in 1584 pursuant to a decree in which Philip II likewise condemned him as “an enemy of the human race.” See The Proscription of William the Silent, in The Low Countries in Early Modern Times 71, 79 (Herbert H. Rowen ed., 1972). 185 The major post-World War II proponent of the “realist” school was Hans Morgenthau. See Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1985). His theory was based on Metternich’s “realpolitik,” which at the Congress of Vienna in 1815 culminated in the territorial division of Europe and allocation of zones of influence to the major powers that had defeated Napoleon (Austria, England, Russia, and Prussia). The Congress of Vienna regime lasted until World War I. As of the 1960s in the U.S., Henry Kissinger, a student of Metternich’s theory and practice, became the most influential theorist and practitioner of modern “realpolitik.” Contemporary U.S. policy reflects this tendency, and evidences its dangers to a genuine world community, subject to the “rule of law.” See also John J. Mearshimer, The False Promise of International Institutions, 19 Int’l Security 5 (1994). 186 See M. Cherif Bassiouni, The Philosophy and Policy of International Criminal Justice, in Man’s Inhumanity to Man 63 (L.C. Vorah & Michael Bohlander eds., 2002).



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is its exception.187 Multilateral problem solving and collective decision-making by international institutions with rulemaking authority transcending the powers of states, serve as examples of heightened change since the nineteenth and early twentieth centuries.188 These processes and their mechanisms of international cooperation have created a form of international governance without the existence of world government.189 Increased international cooperation, whether through multilateral institutions and their enforcement mechanisms or as a result of bilateral accords voluntarily enforced, has created a web of interlocking reliance between states, which in turn nurtures trust among them. Thus, it has led states to believe, or at least accept, that multilateralism accomplishes more than unilateralism can, and that what is lost in unilateral freedom of action is compensated by what is gained through collective action. The positive aspects of this cost-benefit analysis leads to increased reliance on multilateral institutions, and therefore paves the way for enhanced international cooperation in the future, which necessarily benefits ICL.

187 See, e.g., Andreas Hasenclever, Peter Mayer & Volker Rittberg, Theories of International Regimes (1997); Regime Theory and International Relations (Volker Rittberg ed., 1993). 188 John Gerard Ruggie, Constructing The World Polity: Essays on International Institutionalization (1998); Oran B. Young, Governance in World Affairs (1992). For state sovereignty, see Louis Henkin, International Law: Politics and Values 16–17 (1995); see also, Marcel Brus, Bridging the Gap Between State Sovereignty and International Governments: The Authority of Law, in State Sovereignty and International Governance 3, supra note 173 (quoting T.H. Kooijmans, Internacionaal Publienkrecht In Vogelvlucht (2000)). “Two world views collide: A traditional view of the world consisting of sharply distinguished compartments of the national state, and a view of an interdependent world society with common values and with problems that can only be solved through common efforts and with respect for universal, and supra-national, legal rules.” Id. at 359. The evolution of state sovereignty and its erosion is also discussed by Sir Elihu Lauterpacht, Sovereignty—Myth or Reality, 73 Int’l Aff. 137 (1997). Professor Lauterpacht, in describing the erosion of the concept of absolute sovereignty, raises the question of whether it still exists in reality or whether it has become a myth. Nevertheless, he argues that states still maintain their sovereignty in making laws, and enforcing them. He attributes, in part, the erosion of sovereignty as being voluntary on the part of states. The erosion of state sovereignty is also addressed by Alfred von Staden & Hans Bollaard, The Erosion of State Sovereignty: Towards a post-territorial world?, in States Sovereignty and International Governance, supra note 173, at 176. 189 See Beitz, supra note 152. Professors Myres McDougal and Harold Lasswell and the New Haven School of International Law, which they founded, rely on the proposition that international legal regimes rely more on processes than on fixed norms. As a consequence, international law is more a product of what they call the “world constitutive process of authoritative decisions.” See Myres McDougal et al., The World Constitutive Process of Authoritative Decisions, 19 J. Legal Ed. 253, 255 (1967). Another consequence flowing from collective processes of decision-making which are authoritative, is that they do not rely on coercive measures. Thus, this theory contradicts both the anarchical state, and in part the “realists” school of political science. See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959). The application of this theory is probably most evident in the law of outer space. See Myres S. McDougal et al., Law and Public Order in Space (1963).

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The formerly monolithic conception in international relations, that state power is what counts, has been tied down incrementally by many Lilliputian strings. The once absolute and indivisible concept of state sovereignty has met the same fate. The concept of state sovereignty has been gradually eroded by treaties and the practice of states that have voluntarily accepted limitations to their hitherto jealously-guarded sovereignty in ways that only decades ago would have been deemed unacceptable.190 Suffice it to recall that forty years ago, the flight of a U.S. spy plane over the then USSR caused that country to shoot the plane down, imprison its pilots for over twenty years, and, at the time, cause a world crisis which portended dangerous military escalation. In short, it was a casus belli because the U-2 over-flight was a violation of the USSR’s territorial sovereignty.191 Today various communications and other satellites cross the physical boundaries of most states nearly every hour without even the hint that it may constitute a breach of sovereignty.192 Similarly, the Internet and cellular telephone communications have broken down the intangible barriers of territorial sovereignty. In these cases technology has undone political concepts, and international law, in turn, has frequently been driven by these new facts. However, the new technology which has reduced national boundaries to irrelevance has also expanded the capabilities and potentialities of international, trans-border, and domestic crimes to the point where crime, regardless its legal source, is arguably without frontier. The only response is for ICL to eliminate enforcement barriers in kind, but to also maintain rules.193 International law, which only a few decades ago was viewed as unenforceable morality, has acquired a strength of its own, leading to much greater voluntary compliance by states than was ever contemplated in the past. Suffice it to look at the progress made by international and regional human rights laws and the jurisprudence of such courts as the European Court of Human Rights194 and the Inter-American Court of Human Rights in this regard, to demonstrate the proposition that the enforcement of regional law need not depend on force.195 Indeed, there are no armed troops or tanks to enforce the decisions of these courts, thus belying the cynical rhetorical statement made by Stalin in the 1950s when he

190 Pondering Postinternationalism: A Paradigm For the Twenty-First Century? (Heidi H. Hobbs, ed. 2000); The Greening of Sovereignty in World Politics (Karen T. Litfin, ed., 1998). 191 See Michael Beschloss, May-Day: Eisenhower, Khrushchev, and the U-2 Affair (1986). 192 With respect to the outer-space regime, see Mark W. Zacher, Multilateral Organizations and the Institution of Multiateralism: The Development of Regimes for Nonterrestrial Spaces, in Multilateralism Matters: The Theory and Practice of an Institutional Forum 405 (John G. Ruggie ed., 1993). 193 In other words, to preserve “due process of law.” 194 See supra note 33. 195 See Buergenthal & Shelton and Davidson, supra note 34.



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asked how many divisions the Pope had.196 The moral power and influence of international and regional human rights law on national legal systems in the last fifty years has been nothing short of extraordinary, and certainly unpredictable.197 As a result, one of the criteria for international criminalization is conduct that is “shocking to the conscience of humankind.” 198 The international community’s value-component is, however, like a kaleidoscope which reflects in different ways the values of many cultures, though only some of them coalesce to be shared by multiple constituents.199 The recognition by states that there are commonly shared interests that transcend individual state interests also reflects the existence of commonly shared values, even though their intangible nature makes them difficult to identify and to assess in terms of their impact on states’ decision-making processes. However, as the coalescence of these values takes shape, its impact is felt, either gradually or all at once, even if only demonstrable by deduction. Thus, after World War II, it was in large part because of the impact of commonly shared values (e.g., revulsion against the crimes committed) that the demand for international criminal justice surged. It was commonly shared values that accounted for the gradual but steady growth of human rights after World War II. Lastly, what a decade ago was called “world public opinion,” is a factor that contributed in no small way to the radical change that occurred in international relations, and, as a result, in international law. At the time some viewed it as a journalistic metaphor; however, since that time, it has become a component of what it is now referred to as international civil society. The increasing influence of international civil society is evident in the growth of non-governmental organizations and in their impact on multilateral organizations and national governments. This impact is particularly noticeable in the areas of human rights, humanitarian law, and the strengthening of peace,200 and has become a driving force of international criminal justice.201 196 An interesting counterpart is President Andrew Jackson’s statement, “[Chief Justice] John Marshall has made his decision, now let him enforce it.” Horace Greeley, The American Conflict (1865) (quoting President Jackson’s response to Chief Justice Marshall’s decision in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). 197 See Meron, supra note 127. 198 See M. Cherif Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 16, at 3. The other principal criteria are conduct that threatens peace and security and conduct that detrimentally affects internationally protected interests. Id. 199 Akira Iriye, Cultural Internationalism and World Order (1997); Comparative Legal Cultures (Csaba Varga ed., 1992); Comparative Law in Global Perspective (Ian Edge ed., 2001). For the influence of religious values, see Cornelius F. Murphy, Jr., Theories of World Governance: A Study in the History of Ideas (1999), Religion in International Law (Mark Janis & Carolyn Evans eds., 1999); Religion and Global Order (John L. Esposito & Michael Watson eds., 2000). 200 See Thomas Franck, supra note 181. See generally World Politics: Society and Community Beyond the State (Mathias Albert, Luthar Brock & Klaus Dieter Wolf eds., 2001). 201 For a discussion of international criminal justice, see infra Chapters V and VIII.

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To a large extent, the transformation in international relations described above, with attendant consequences in international law and in ICL, is based on the enlightened self-interest of states that recognize that the common interests they share and frequently enforce, jointly or severally, ultimately serve their respective national interests or at least warrant compromises with their narrower national interests. However, it is not only a product of enlightened self-interest that prompts states to more readily comply with the mandates of international law. Rather, other non-coercive, compliance-inducing factors exist in the international community and in the enforcement of ICL.202 These signs of transformation in international relations and international law highlight the increased regard for the individual in the new global order, as well as for the place of collective humanitarian interest in the range of values and policies that make up the discipline of international law and, consequently, of ICL. Such recognition necessarily implies that the individual is part of the international community as a subject of law whose protection and rights are included in the commonly shared values of the international community.203 It also means that humanitarian interests demand protection by states and international organizations, including from states’ depredations. Thus, enforcement becomes a corollary to these rights, including enforcement of ICL. In other words, the shield of human rights protection necessitates the sword of ICL enforcement.204 Consequently, many of the 27 categories of international crimes whose transgression rises to the level of being “shocking to the conscience of humanity” reflect these human values.205 They include: aggression, genocide, crimes against humanity, war crimes, slavery and slave-related practices, apartheid, torture, and unlawful human experimentation.206 Logic leads to the conclusion that the recognition of individual rights, based on commonly shared values of the dignity and self-worth of the human person, also reflect the commonly shared values of humanity.207 Humanity consists of 202 Giuliana Ziccardi Capaldo & Michele Nino, Globalization of International Law Enforcement Mechanisms: Issues of Legality and Legitimacy, in 2 Bassiouni, ICL, supra note 7, at 47. For an international relations perspective, see International Rules: Approaches from International Law and International Relations (Robert J. Beck ed., 1996). For a perspective bridging international relations and international law, see Kenneth W. Abbott, Oran B. Young & Anne-Marie Burley, International Law and International Relations Theory: Building Bridges, 86 Proceedings of the American Society of International Law 167 (1992). 203 See infra section 3. 204 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law, supra note 135. 205 See Bassiouni, The Discipline of International Criminal Law, in 1 Bassiouni, ICL, supra note 16, at 3; Robert Cryer, The Doctrinal Foundations of International Criminalization, in 1 Bassiouni, ICL, supra note 16, at 107. 206 See infra Chapter III for a discussion of these and other international crimes. 207 Admittedly, as discussed above, the identification and assessment of these values is difficult to make. See infra section 3.



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individuals who constitute its units and who are the subjects of rights and obligations. It also includes the sum total of these individual units and their collective historical experiences.208 As a result of the individual’s recognition as a subject of international law, certain rights and obligations emanating from international law are directly applicable to individuals without the intermediation of states, and irrespective of the dictates of states.209 It can therefore be concluded that the same social experience which has developed in national societies has been transmitted to the larger society called the international community, edging, however slowly, toward a universal global society.210 The emergence in international law of subjects other than states211 brought about collective decision-making and collective action through international organizations, thus overcoming the “realists’ ” supposedly insuperable obstacles to collective decision-making. The enhanced confidence among states in international organizations, including their enforcement regimes, represent the future development of international relations and international law.212 The relevancy of international law in stimulating this evolution will depend on the ability of jurists to understand the dynamics of the policies which are at the base of contemporary legal and political concepts of international law in their evolving transformation.213

208 Historical experiences are also made up of the cultural experiences of peoples. 209 In ICL, for example, the Charter of the IMT provided that individuals are bound by certain dictates of international law, which make them responsible irrespective of the dictates of national law. Furthermore, the IMT, IMTFE, ICTY, and ICTR are international institutions that exercise their international criminal jurisdiction irrespective of the approval of states. The ICC, being a treaty-created body, is therefore the emanation of states’ consent. All these international judicial institutions prosecute for crimes established by ICL as stated in section 1 and discussed in infra Chapters II and III. The subjects of international criminal responsibility are also determined by ICL, see infra Chapter II, section 2, as well as the principles of criminal responsibility, infra Chapter II, section 3. 210 See Global Society in Transition: An International Politics Reader (Daniel N. Nelson & Laura Neack eds., 2002). This closes the circle of Holmes’ assertion, supra note 161 and accompanying text. 211 See Chapter II; see also Rosalyn Higgins, Problems and Processes: International Law and How We Use It (1995); The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Laurence Boisson de Chazournes & Vera GowllandDebbas eds., 2001); Mark Janis, An Introduction to International Law (3d ed. 1999). 212 The new dimensions described above forced the United States, the mightiest nation and only remaining superpower, to bow to the collective pressure of the international community and to heed the demands of international legitimacy when it yielded its claim to use unilateral force against Iraq to a collective determination of the Security Council. S.C. Res. 1441, U.N. SCOR, 4644th mtg., U.N. Doc. S/Res/1441 (8 Nov. 2002). It then resorted to war in March 2003, without regard to legitimacy. See also M. Cherif Bassiouni, Rumors of War: Waving a Big Stick, Chi. Trib., Nov. 10, 2002, at Sec. 2, p. 1. 213 For different views on this question, see The Future of International Relations: Masters in the Making (Ives B. Neumann & Abe Weaver eds., 1997) (for an international relations perspective); Legalization and World Politics (Judith Goldstein, Mikes Kahler, Robert O. Keohane, & Anne-Marie Slaughter eds., 2001); The Role of Law in International Politics: Essays

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ICL is significantly affected by the transformation in the dynamics of international relations and their impact on international law. Thus, ICL assumptions and limitations with respect to enforcement have changed.214 The demand for international criminal justice,215 whether through international or national legal institutions, is palpably increasing due to the pressures of international civil society and a number of governments concerned with the same issues.216 The ICTY and ICTR, as international judicial bodies, have accomplished results totally unimaginable only a decade ago, among them the conviction of a former head of state217 and the prosecution of another.218 All over the world perpetrators of jus cogens international crimes are being pursued, and impunity is no longer tolerated.219 States are no longer free to barter away justice for political settlements.220 Even though states continue to try providing amnesties to perpetrators of these crimes in exchange for ending conflicts, their efforts are fewer and they can no longer be carried out blatantly as they once were.221

in International Relations and International Law (Michael Byers ed., 2000) (for a combined international law and international relations perspective); and Johnathan I. Charney, Universal International Law, 87 Am. J. Int’l L. 529 (1993) (for a more juridical perspective). For an examination of how changes in the dynamics and reality of international politics affect international law, see Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999); Karol Wolfke, Custom in Present International Law (1993). 214 See infra section 2. 215 See Bassiouni, Post-Conflict Justice, supra note 97; Sadat, supra note 62; M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409 (2000); M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9–28 (1996); Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2542 (1991). 216 As of May 2012, the ICC has 121 States-Parties who have pledged to prosecute perpetrators of genocide, crimes against humanity, and war crimes. See supra note 97. 217 Prosecutor v. Kambanda, Judgment and Sentence, Case No. ICTR-97-23-S (Sept. 4, 1998). 218 Milosevic (Initial) Indictments (IT-02-54): Kosovo (May 24, 1999), Croatia (Oct. 8, 2001), Bosnia (Nov. 22, 2001), available at http://www.un.org/icty/glance/milosevic.htm. Milosevic died in March 2006. See Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002); Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002); Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002); Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997). 219 Two prime examples are former Chilean head of state Augusto Pinochet (see Regina v. Bow Street Metropolitan Stipendiary Magistrate (No. 1), ex parte Pinochet Ugarte, [1998] 3 W.L.R. 1456 (H.L.), reprinted in 37 I.L.M. 1302 (1998); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272 (H.L.), reprinted in 38 I.L.M. 430 (1999); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.)), and the former head of state of Chad, Hissené Habré (documents on the Habré case can be found at http://www.hrw.org/justice/habre). See also infra Chapter II, section 4, Responsibility of Heads of State and Other Persons Benefiting of Certain International Immunities. 220 See Bassiouni, Post-Conflict Justice, supra note 97. 221 See supra note 219.



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Similarly, national criminal justice systems which tolerated torture until 1984222 and other serious violations of fundamental human rights223 can no longer do so without incurring the legal and moral condemnation of other states and of international civil society. The “realists” cannot account for this radical change, one which occurred without the use of power as they understand it. Surely the power of states did not, or was not able to, stop this change. Another source of power accounts for it. As stated by Victor Hugo, “An invasion of armies can be resisted, but not an idea whose time has come.”224 On another level, the need for enhanced international cooperation to combat international, trans-border, and domestic criminality is also increasing as a result of the globalization of crime.225 If the demands for international criminal justice described above are the product of commonly shared values in addition to utilitarian ones (e.g., the assumption that deterrence will work), then the demands for increased international cooperation to prevent and suppress international, trans-border, and domestic crimes are the product of the perceived common interests of states. It is in the combination of these commonly shared values and perceived common interests that we find the 222 See Nigel S. Rodley, The Treatment of Prisoners Under International Law (2d ed. 2000); United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Herman J. Burgers & Hans Danelius eds., 1988); Daniel Derby, The International Prohibition of Torture, in 1 Bassiouni, ICL, supra note 16, at 621. 223 See The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, supra note 133; Progress Report on the Question of Impunity of Perpetrators of Human Rights Violations, prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-commission resolution 1992/23, Sub-Commission on Prevention and Protection of all Minorities, 45th Sess., Item 10(a), (19 July 1993) U.N. Doc. E/CN.4/Sub.2/1993/6; Preliminary Report on Opposition to the Impunity of Perpetrators of Human Rights Violations (economic, social and cultural rights), prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-Commission resolution 1993/37, Sub-Commission on Prevention and Protection of all Minorities, 46th Sess., Item 10(a), (22 June 1994) U.N. Doc. U.N. Doc. E/CN.4/Sub.2/1994/11; Progress Report on the Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), prepared by Mr. Joinet, pursuant to Sub-Commission resolution 1994/34; Sub-Commission on Prevention and Protection of all Minorities, 47th Sess., Item 10, (28 June 1995) U.N. Doc. E/CN.4/Sub.2/1995/18; Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), Final Report prepared by Mr. L. Joinet, pursuant to Sub-Commission resolution 1995/35, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 48th Sess., Item 10, (29 June 1996) U.N. Doc. E/CN.4/Sub.2/1996/18. 224 Victor Hugo, Histoire d’un Crime (1852), part II, § 10. 225 See, e.g., Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL supra note 16, at 939; M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); Dimitri Vlassis, Challenges in the Development of International Criminal Law: The Negotiations of the United Nations Convention Against Transnational Organized Crime and the United Nations Convention Against Corruption, in 1 Bassiouni, ICL, supra note 16, at 907; Bernard Leroy, M. Cherif Bassiouni, & Jean-Francois Thony, The International Drug Control System, in 1 Bassiouni, ICL, supra note 16, at 855; In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, DePaul University College of Law, 2002).

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confluence, if not the fusion, of the values and policies of ICL, which in turn have an impact on the nature of the international legal system.226 Section 5. Conclusion As stated in section 1, ICL is a complex legal discipline consisting in the juxtaposition of several components originating in separate legal disciplines which are distinguishable as to their methods, techniques, contents, subjects, enforcement modalities, institutions, structures, values, and policies. Scholars of the different disciplines whose components make up ICL seek to define these components within the doctrinal framework of their respective original discipline. Thus, penalists refer to that component of domestic criminal law and procedure which relates to international matters as criminal international law, which sounds better in French as droit pénal international, while publicists refer to that component of international law which relates to criminal matters as international criminal law, droit international pénal.227 As stated in section 1, the legal sources of these components are international law and domestic criminal law and derivative branches of these disciplines. With respect to international law, these derivative branches include international and regional human rights law, and international organizations law, whereas domestic criminal law includes comparative criminal law and procedure. While these disciplines are by their very nature unrelated, they nevertheless tend to overlap by virtue of their functional application in the overall structure of ICL. Thus, for example, the international and regional law of human rights has become intertwined with domestic and comparative criminal procedure law. Similarly, international law, which compromises “general principles of law” among its sources, relies on comparative law techniques to identify what principles of domestic criminal law and criminal procedure law constitute “general principles of law” and thus apply to ICL. Moreover, international law creates legal obligations that states enforce by way of incorporating these obligations in their domestic legal systems, thus transforming these international legal obligations into domestic legal prescriptions. In turn, the enforcement of international legal obligations through national legal systems has an impact upon such systems. The combined effect of national legal systems enforcing ICL obligations thus has an impact on the international legal system as a whole.

226 See, e.g., Joseph Roz, The Concept of a Legal System: An Introduction to the Theory of Legal Systems (1970). 227 See M. Cherif Bassiouni, Introduction au Droit Pénal International 1 (2002).



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The fact that the different components of ICL are either intertwined or interconnected does not, however, eliminate their separate legal characteristics. The umbilical cord between these components and their original disciplines remains intact, thus imprinting ICL with some of the characteristics of the original disciplines from which these components derive. In addition to their diversity, these components embody the social and political dynamics of their original disciplines. This includes the dynamics which permeate the international legal system as well as those which exist in domestic legal systems. In turn, the interaction of international, national, social, and political dynamics have an impact on ICL, and make it a polyvalent legal system. All of this adds to the complexity of the discipline of ICL. Because ICL is made up of several components which emanate from different legal disciplines encumbered by their respective social and political dynamics, the experiences of ICL do not necessarily accumulate or accrue in a cohesive legal structure. Another analogy to describe the system of ICL is that it consists of different building blocks which come in different sizes and shapes. Some of these blocks may be vertically related, others horizontally. Together, they form a whole, more because of their functional nature than because of their compatibility. However, the functional inter-relationship of these components makes them transcend the doctrinal framework of their original disciplines, while contemporaneously bringing them closer to each other, thus warranting their inclusion in the framework of a separate legal structure. ICL lacks the linear, logical, and cohesive connection which is required by the method of most legal disciplines. Therefore, it is, and will remain for a while, a sui generis legal structure made up of different legal disciplines and their derivative branches, influenced by the particular dynamics of the systems from which they derive. Thus, ICL manifests peculiarities and contradictions not evident in traditional legal disciplines. In time, these components may merge into a cohesive whole, thereby conveying to this sui generis discipline a unique character that blends the characteristics of the original disciplines from which these components derive. Political “realists” will point to the anarchical nature of ICL and its power dependency, while legal “idealists” will emphasize the inherent influence of the law in generating compliance. The fusion of these views will occur when the latter will recognize the limits of the law’s influence on generating compliance, and the former will yield to the acceptance that the inherent values reflected in the law represents a different form of power capable of inducing some to compliance.228 As stated by Professor Louis Henkin: Law is a major force in international relations and a major determinant in national politics. Its influence is diluted, however, and sometimes outweighed by other 228 Louis Henkin, How Nations Behave 337 (2d ed. 1979).

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chapter one forces in a ‘developing’ international society. Failure to appreciate the strengths and weaknesses of the law underlies much misunderstanding about it and many of the controversies about its significance. ‘Realists’ who do not recognize the uses and force of law are not realistic. ‘Idealists’ who do not recognize the law’s limitations are largely irrelevant to the world that is.229

At this juncture, it is appropriate to raise another question, namely whether ICL is an accumulation of sporadic experiences that have not ripened into a system, or whether this accumulation can already be deemed a legal system. In framing the question this way, the answer will necessarily reflect a choice among legal philosophies and political science doctrines. But what complicates the question is that ICL does not fall exclusively in the disciplines of international law and national criminal law or their derivative branches. Instead, as discussed throughout this chapter, it partakes of all of these disciplines. Thus, to conclude that ICL is a system, or a particular type of system, remains difficult unless one accepts a multidisciplinary approach in which various legal and social science disciplines interact. Thus, it can be concluded that a sui generis system of the kind discussed in this chapter indeed exists. The history of great ideas can be analogized to a great river that blends the waters of its many tributaries in a single stream. At times, the river’s waters run deep but slow, at times they run shallow and fast and, at times, they are stagnant. Somehow the river travels on, however, making predictable and unpredictable turns to avoid obstacles facing the continuation of its course. ICL is such a river. In fact, the analogy may be specific to the Amazon River, which in certain places consists of two confluent currents that differ in color, density and temperature, and which uniquely travel side by side at different speeds. ICL has several currents, which manage to flow side by side notwithstanding their different density, temperature, color, and speed. At rare times they seem to all blend together. The short period of time after World War II, with the Nuremberg and Tokyo experiences and other post-World War II prosecutions, serves as an

229 Professor Rein Müllerson, in Rein Müllerson, International Law, Rights and Politics 7 (1994), and quoting Robert Keohane states: International law often deeply penetrates into domestic relations. Robert Keohane rightly observes that in order to deal with issues concerning the compliance of states with their international commitments, ‘[w]e must look at the interaction between international politics and law and domestic politics,’ which he calls ‘institutional enmeshment.’ An international lawyer would have said that for its effective implementation international law should be steadily anchored in the domestic law and institutions. Robert Keohane, Compliance with International Commitments: Politics within a Framework of Law, in American Society of International Law Proceedings 180 (1992). See also H.L.A. Hart & Raz Bulloch Hart, The Concept of Law (2d ed. 1997); Gerald Dworkin, Morality, Harm and the Law (1994); Lon L. Fuller, The Morality of Law (2d ed. 1969); Patrick Devlin, The Enforcement of Morals (1965).



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example.230 However, most of the time ICL does not have that coherence, as evidenced by the Cold War years beginning in 1948 and ending in 1992, when the Security Council established the Commission of Experts to investigate violations of international humanitarian law in the former Yugoslavia.231 There is no reason, let alone logic, as to why international criminal justice is unable to move forward at a faster pace,232 or why substantive ICL is not codified,233 or why the “indirect enforcement system”234 is not more effective. But there is evidence that these problems are more noticeably perceived by governments and less tolerated by international civil society—and that is likely to bring about some progress, though not necessarily in all aspects of ICL.235 The insightful words of Pascal are a valid reminder of the role that ICL ought to play in our global society, “Justice without force is impotent. Force without justice is tyrannical. Justice without force is infringed because there is always the means [to overcome it]. One must, therefore, combine justice and force, and, therefore, make strong what is right, and make right what is wrong.”236 These words echo Locke’s that “the Law of Nature would be in vain, if there were no body that . . . had the power to execute that law.”237 However, as Machiavelli concluded in 1537, “There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things.”238 The problems of international criminal justice are many, as is inevitable in the case of anything new. Its present crisis is in its enforcement. Opposition by the U.S. to the ICC is but one example.239 States’ non-enforcement of ICL treaty obligations is too numerous to even cite. Suffice to observe as evidence of this lack of enforcement the increase in incidence of such crimes as trafficking of women and children for commercial sexual exploitation,240 international 230 See Bassiouni, supra note 50. 231 See supra note 89. 232 See infra Chapter VIII. 233 See infra Chapter III. 234 See infra Chapter V. 235 For example, international criminal justice (see infra Chapters V and VIII) and international cooperation in penal matters are likely to be enhanced (see infra Chapter V), but the codification of substantive ICL remains unlikely (see infra Chapter III). 236 Blaise Pascal, Pensées §V, 298 (William F. Trotter trans., 1941). 237 John Locke, Second Treatise of Government ¶7 (Thomas D. Peardon ed., 1952). 238 Niccolo Machiavelli, Il Principe: Le Grandi Opere Politiche (G.M. Anselmi & E. Menetti trans., 1992) (1532), at chap. VI (De principatibus novis qui armis propriis et virtute acquiruntur), reprinted in M. Cherif Bassiouni, Indagini e Procedimenti Penali Internazionali: Da Versailles a Roma, 22 La Legislazione Penale 817 (2002). 239 See supra note 97. 240 See In Modern Bondage, supra note 225; M. Cherif Bassiouni, Investigating International Trafficking in Women and Children for Commercial Sexual Exploitation (International Human Rights Law Institute, DePaul University College of Law, 2001).

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drug-related offenses, and international money laundering, to name only a few. Another example was the ICTY’s long-time inability to obtain custody over Goran Hadzic, who was indicted for the crimes of genocide, crimes against humanity, and war crimes. Hadzic was not arrested until July 2011 because neither the former Yugoslavia, now called the Republic of Serbia and Montenegro, nor NATO forces in Bosnia (the Implementation Force, or IFOR), were willing to arrest and surrender him to the ICTY. However, Radovan Karadzic, the war-time president of Bosnia and Herzegovina, was arrested in July 2008, and on May 26, 2011, Ratko Mladic was arrested in Serbia, after evading arrest for sixteen years. This arrest is a milestone in the ICTY’s history and brings it closer to the successful completion of its mandate. As of March 2012, the ICTY has concluded proceedings against 126 persons, with proceedings continuing against 35 accused.241 The future of international criminal justice242 depends on the five following approaches: 1) Non-enforcement by de facto or de jure amnesties and by general disregard by states of the duties to prosecute or extradite; 2) Continued occasional enforcement, which is more in the nature of anarchic enforcement, depriving international criminal justice of an element of legitimacy, and failing to provide for consistency and predictability which are necessary elements of deterrence; 3) Unidirectional enforcement through the United Nations Security Council by means of economic and military sanctions (including the delegation of unilateral use of force to a member seeking to enforce a Security Council resolution), and also by the Council’s establishment of sub-organs, such as the ICTY and ICTR (even though the enforcement of their respective orders and judgments which are not complied with by a state depend on further action by the Security Council). But this approach has the same characteristics as the second approach in that it is whimsical, and thus lacks the legitimacy of even-handed and consistent application; 4) Incentivized enforcement, through a variety of compliance inducement factors;243 5) Collective enforcement through the ICC, notwithstanding its asymmetrical enforcement model.244

241 See ICTY Press Release, “Tribunal Welcomes the Arrest of Ratko Mladic,” available at http:// www.icty.org/sid/10671. 242 See infra Chapter X. 243 See Gerhard O.W. Mueller & Douglas J. Besherov, Evolution and Enforcement of International Criminal Law, in International Criminal Law 3–36 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965). 244 See infra Chapter VII, section 2.2.



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For the foreseeable future, it is likely that all five approaches will be pursued contemporaneously, and that only the course of world events will determine whether there will be an effective system of international criminal law, or a regression to the status of international relations as it was in the nineteenth century.

chapter two

The Subjects of International Criminal Law: Ratione Personae Section 1. Introduction The subjects of international law have historically been states and intergovernmental organizations. Individuals became subjects of that legal discipline after World War II by virtue of the establishment of their criminal responsibility under international law, irrespective of the dictates of national law. This was accomplished first through the Charter of the IMT, and then the Statute of the IMTFE.1 Subsequently, other substantive and procedural norms of international law affirmed this principle in different ways, though not always specifically.2 Almost contemporaneous with these developments, the international community embarked on the establishment of internationally, and then regionally, protected human rights.3 These rights with respect to some where accompanied by enforcement norms and implementation mechanisms, allowed individuals to claim their rights against states.4 The dual movement of international criminal responsibility of individuals and international protection of individual and collective human rights eroded the barriers of state sovereignty that historically left states with exclusive power over their citizens and non-citizens on their territory. ICL and IHRL have thus created exceptions to this exclusivity of state power over individuals by establishing

1 For a discussion of these and other historical precedents, see Chapter V. 2 Among the explicit norms is encapsulated in Article 1 of the Genocide Convention, which states, “[g]enocide is a crime under international law.” The Apartheid Convention is another instrument that specifically declares genocide a crime under international law. Both apply directly to individuals. 3 See e.g. International Human Rights in the 21st Century: Protecting the Rights of Groups (Gene M. Lyons & James Mayall eds., 2003); Jack Donnelly, Universal Human Rights in Theory and Practice (2d ed. 2003); The Concept of Human Dignity in Human Rights Discourse (David Kretzmer & Eckart Klein eds., 2002); Concepts and Strategies in International Human Rights (George J. Andreopoulos ed., 2002); Anne Bayefsky, How to Complain to the U.N. Human Rights Treaty System (2002); Anne F. Bayefsky, The U.N. Human Rights Treaty System: Universality at the Crossroads (2001); Human Rights & the Administration of Justice: International Instruments (Christopher Gane & Mark Mackarel, eds., 1997); M. Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (1994). 4 See Anne Bayefsky, How to Complain to the U.N. Human Rights Treaty System, supra note 3.

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duties and responsibilities that are incumbent on individuals irrespective of the laws and dictates of states, as well as by recognizing rights and privileges that attach to individuals and which states cannot infringe. A discussion of the specifics of this dual evolution of duties and rights under ICL and IHRL respectively is beyond the scope of this book, but it is safe to conclude that individuals are now recognized as subjects of international law, though only with respect to certain areas of that discipline.5 With respect to ICL, individuals are deemed criminally responsible under international law for certain international crimes, namely jus cogens crimes,6 irrespective of what state law provides. Individuals are also subject to international criminal responsibility by virtue of conventional international law, which is mainly accomplished by placing duties upon states who become parties thereto and who are thereby obligated to prosecute or extradite.7 ICL did not, however, limit itself to the recognition of individual responsibility, which could have simply been done by the recognition of individuals as subjects of ICL. Instead, it went beyond that declarative stage and attached the responsibility of certain specific elements that national legal systems embody in the “general part” of their national criminal codes.8 These include: ­non-applicability of heads of state immunity;9 rejection of the defense of “obedience to superior orders”;10 establishment of command responsibility for military and civilian leaders;11 removal of statutes of limitations for certain international crimes;12 and the recognition of certain obligations deriving from the maxim aut dedere aut judicare.13 Of all of these, the non-applicability of heads of state immunities is the one most integrally linked to the establishment of individual criminal responsibility, which explains its inclusion in this chapter on the ratione personae, instead of Chapter IV on the “General Part” of ICL. This chapter discusses the international criminal responsibility of individuals, organizations, and states. The first of these is now well established in ICL. The second is unsettled, as there is some precedent for it and a growing trend to include such a concept of criminal responsibility in domestic legal systems. The

   5 See Criton G. Tornaritis, The Individual as a Subject of International Law and International Criminal Responsibility, in 1 A Treatise on International Criminal Law 103 (M. Cherif Bassiouni & Ved P. Nanda eds., 1973); S. Prakash Sinha, The Position of the Individual in an International Criminal Law, in 1 Bassiouni & Nanda Treatise, supra, at 122.    6 See generally Jordan J. Paust, Nonstate Actor Participation in International Law and the Pretense of Exclusion, 51 Va. J. Int’l L. 977 (2011).    7 See infra Chapter V.    8 See infra Chapter IV for a discussion of the “general part” of ICL.    9 See infra section 4. 10 See infra Chapter IV, section 6.   11 See infra Chapter IV, section 6. 12 See infra Chapter III, section 8. 13 See infra Chapter V, section 2.



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third, state criminal responsibility, had somewhat of a beginning in the reparations regime that followed WWI, but it has been rejected since then, except that it exists de facto in the form of U.N. sanctions. While ICL primarily addresses criminal responsibility of transgressors, ICL is beginning to recognize the rights of victims, who are becoming subjects of this discipline. This development is discussed in section 7 below. Section 2. Doctrinal Considerations Are the subjects of ICL only individuals, or does ICL’s ratione personae also include legal entities such as organizations and states? The answer to this query depends on whether the legal doctrine relied upon in the analysis stems from comparative criminal law or from ICL, and, with respect to comparative criminal law doctrine, whether it derives from the Roman, civil law tradition or from the common law tradition. Traditionally, under the Romanist civil law systems, les personnalités juridiques (legal entities) could not be held criminally responsible; only individuals could. But recently, some changes that extend criminal sanctions to legal entities have occurred in that legal tradition, as evidenced in contemporary national criminal legislation dealing with “organized crimes”14 and “white collar crimes.”15 The common law tradition, which is characterized by pragmatism and is less constrained by doctrinal or dogmatic considerations than the Romanist-civilist and Germanic systems,16 has evolved norms for the responsibility of legal entities that include sanctions akin to those for individual criminal responsibility. Thus, in common law systems, legal entities may receive a fine and their assets may be seized. Decision-makers of these entities can also be held individually responsible for harm caused by the entities.17 Such a form of criminal responsibility can either be based on an expanded concept of conspiracy or on the ground of belonging to a criminal organization.18 These new concepts of corporate criminal responsibility have not yet found their way into ICL, but contemporary

14 See, e.g., Italian Code of Criminal Law, Associazione per Delinquere, Arts. 416–18, Associazione Sovversiva, Article 270 and Associazione per Delinquere di Stampo Mafioso, Article 416 bis; the French Criminal Code Article 265–67, Association de Malfaiteurs. 15 See International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé (Hans de Doelder & Klaus Tiedeman eds., 1996). 16 See, e.g., George Fletcher, Rethinking Criminal Law (1978). 17 For the responsibility of corporate directors and officers in U.S. law, see M. Cherif Bassiouni, Substantive Criminal Law 149–57 (1978). 18 See infra note 27, and for the U.S., see Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961–8 (1984).

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international efforts to deal with “organized crime,”19 “corruption,”20 and “drug trafficking” are moving in this direction.21 The differences between the world’s major legal systems are narrowing on the issue of whether a legal abstraction can commit a crime and can be found criminally responsible.22 Certainly, legal entities as abstractions can neither think nor act as human beings, and what is legally ascribed to them is the resulting harm produced by individual conduct performed in the name or for the benefit of those participating in them or sharing in their benefits. The need to develop a legal theory concerning the criminal responsibility of legal entities such as organizations and states derives from the fact that traditional doctrines of individual

19 See United Nations Convention against Transnational Organized Crime, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Expecially Women and Children, G.A. Res. 55/383, U.N. Doc. A/55/383, 2 Nov. 2000; see also Organized Crime: A Compilation of United Nations Documents, 1975–1998 (M. Cherif Bassiouni & Eduardo Vetere ed., 1999); The United Nations and Transnational Organized Crime (Phil Williams & Ernesto U. Savona ed., 1996). 20 The U.N. has stepped up its efforts to combat public corruption. The UN first recognized in December 2000 in the General Assembly Resolution 55/61 that an effective international legal instrument against corruption independent of the Transnational Organized Crime Convention was necessary to organize efforts to combat corruption. In October 2003, by Resolution 58/4, the UN General Assembly adopted the United Nationals Convention Against Corruption (UNCAC). The UNCAC is the first legally binding international anti-corruption instrument that obligates signatory parties to implement a wide range of anti-corruption measures affecting domestic laws, institutions, and practices, aiming to promote the prevention, criminalization, law enforcement, international cooperation, asset recovery, technical assistance, and information exchange to effectively combat transnational corruption. In accordance with Article 68 of Resolution 58/4, the UNCAC entered into force on December 14, 2005. As of October 2011, the UNCAC has been ratified, accepted, and entered into force by 160 countries as well as the European Union. United National Convention against Corruption, G.A. Res. 58/4 (Oct. 31, 2003), available at http://www.unodc.org/ unodc/en/treaties/CAC/ (last visited March 28, 3011). Additionally, on January 28, 1997, the General Assembly adopted the International Code of Conduct for Public Officials in its Resolution on Action Against Corruption, G.A. Res. 51/59, U.N. Doc. A/RES/51/59 (Dec. 12, 1996). However, the Organization of American States has recently developed a convention against public corruption. See Inter-American Convention Against Corruption, Mar. 29, 1996, OES/SER. K/XXXIV.1 CICOR/ doc. 14/96 rev. 2. For background and an explanation of its provisions, see Bruce A. Zagaris, Constructing a Hemispheric Initiative Against Transnational Crime, 19 Fordham Int’l L.J. 1888 (1996); Nancy Zucker Boswell, Combating Corruption: Focus on Latin America, 3 Sw. J. L. & Trade Am. 179 (1996). For a general discussion, see Charles S. Saphos, Something is Rotten in the State of Affairs Between Nations: the Difficulties of Establishing the Rule of International Criminal Law Because of Public Corruption, 19 Fordham Int’l L.J. 1947 (1996). 21 Report of the World Ministerial Conference on Organized Transnational Crime, U.N. GAOR, 49th Sess., Annex, Agenda Item 96, U.N. Doc. A/49/748 (1994). For a discussion of international control of drugs, see Bernard Leroy, M. Cherif Bassiouni & Jean-François Thony, The International Drug Control System, in 1 International Criminal Law: Sources, Subjects, and Contents 855 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]. 22 Though scholars in these systems are likely to argue, and properly so, that similarities in outcomes do not negate differences in doctrinal bases. See Fletcher, supra note 16; International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé, supra note 15.



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criminal responsibility are not well-suited to dealing with the type of group conduct carried out under the cover of legal enterprise.23 While international law has clearly recognized that individuals are criminally accountable24 and that organizations can also be deemed criminally responsible,25 this concept has not yet been applied to states, though it has been articulated in theory in the ILC’s Draft Article 19 of the Principles of State Responsibility. The ILC, however, abandoned its efforts at establishing a principle of state criminal responsibility. The 2001 approved text of the Principles of State Responsibility do not contain reference to criminal responsibility of states.26 Under international law, states are accountable for wrongful conduct, which may result in the imposition of damages and other sanctions against them. Publicists and penalists argue that states’ sovereignty precludes their criminal accountability and that, as legal abstractions, states cannot be subjected to criminal responsibility in the same way as individuals. Both arguments have validity, but they ignore the need to deter and punish persons who act under color of state authority or through organizations and who use the instrumentalities and capabilities of the state or the organization in question to commit international crimes. The doctrinal debates among and between penalists and publicists offer an abundance of arguments for propositions that conclude for or against the criminal responsibility of legal entities, be they private (organizations) or public (including states and their organs). Nevertheless, all positions now accept, in some form or another, the principle that a private or public legal entity can transgress a norm through its policies or actions for which the national or international law provides, including, at the very least, damages. Damages can be both compensatory and punitive, and other remedies such as seizure and forfeiture of assets are also provided. Thus, the query concerning the international criminal responsibility of legal entities is how to label them, define them, choose applicable penalties, and enforce such penalties.27 It must be noted, however, that since legal entities are abstractions whose policies and operations are made and carried out by individuals, further ­refinement is needed to distinguish between the criminal responsibility of individuals and that of legal entities. Furthermore, a distinction needs to be made between the consequences of imposing criminal responsibility on legal entities for individuals 23 See infra sections 5 and 6. 24 See infra section 3. 25 See infra section 5. 26 See Rep. of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, U.N. Doc. A/56/10 and Corr. 1 (2001); see also Draft Code of Principles of State Responsibility, U.N. GAOR, International Law Commission, 46th Sess., Supp. No. 10, at 3327, U.N. Doc. A/49/10 (1994); Ian Brownlie, State Responsibility: System of the Law of Nations (1983); infra section 6. 27 See International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé, supra note 15.

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who are decision-makers and executors of decisions to commit the proscribed conduct, individuals who are low-level actors, and those who are merely members of the entities whose individual role in the proscribed conduct has not been established. An interrelationship may exist between direct individual criminal responsibility and indirect individual criminal responsibility resulting from criminal acts of a state or an organization, but these two types of international criminal responsibility must be clearly distinguished. Criminal responsibility of states and organizations must necessarily be established through the conduct of individuals, which means, to the extent that such persons’ individual conduct for or on behalf of a state or an organization is deemed criminal, they are also individually accountable. Thus, the argument that state or organizational criminal responsibility derives from that of the individual and vice-versa is tautological. Indeed, individual criminal responsibility is needed to establish the legal entity’s basis of responsibility; yet once that criminal responsibility is established, the result is the derivative responsibility of those individuals who acted for or on behalf of that entity. Furthermore, if the same persons serve as both the source and consequence of the criminal responsibility, the argument favoring an independent basis for direct individual criminal responsibility as opposed to derivative individual criminal responsibility is self-evident. A distinction must therefore be established between direct and derivative individual criminal responsibility. In addition, a distinction should be established as a matter of legal policy between the criminal responsibility of the decision-makers and senior executors who plan and initiate the proscribed conduct, those who carry it out or allow it to occur by purposeful omission when they could have prevented it, and those who are at lower echelons of the process. Lastly the question of the consequences of imposing criminal responsibility on a state arises, because the penalties for state criminal responsibility may apply collectively to persons who are innocent of the state’s proscribed conduct. This raises fundamental questions of justice and fairness and thus argues against indiscriminate criminal sanctions for state or group criminal responsibility that would befall persons whose individual criminal responsibility was not established. It is therefore necessary to distinguish between: i) conduct that gives rise to direct individual criminal responsibility; ii) conduct that gives rise to the criminal or quasi-criminal responsibility of legal entities; iii) conduct that gives rise to derivative individual criminal responsibility as a consequence of the criminal responsibility of legal entities; and iv) the consequences of criminal sanctions against persons whose individual criminal responsibility has not been established. With respect to distinctions between the criminal responsibility of individuals and public and private legal entities, the first distinguishing characteristic is that individual criminal responsibility arises whenever a person, with intent,



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k­ nowledge, or recklessness, engages in conduct deemed violative of an existing norm, irrespective of the resulting harm, or fails to perform a pre-existing legal duty, the result of which also violates an existing norm. These features of individual criminal responsibility are generally recognized in contemporary penal legal systems, regardless of their differences and variations on that theme. Beyond that, an individual may engage in concert of action with others with the requisite mental state to commit, collectively as opposed to individually, the violation of an existing norm. In such instances, when the collective individual conduct (whether by omission or commission) is performed for, on behalf of or under color of authority of a legal entity, that conduct may be ascribable to that legal entity as well as to each individual person who has been a part of the decision-making process or the execution of a decision which constitutes a violation of a particular legal norm. The question then becomes one of apportioning legal responsibility between the individual and the legal entity. This is more a question of legal policy than a question of the principle of who is responsible for what, what sanctions follow, and what the purpose of such sanctions is. These questions do not, however, dispose of many other questions involved in determining responsibility, its typology, the means and methods of ascertaining it, the appropriate sanctions and remedies, and the appropriate enforcement modalities. The resolution of these issues may depend on the nature of each type of transgression rather than on some abstract principle or doctrine of internal or international law, which could hardly be at once broad enough to encompass all types of transgressions and yet specific enough to satisfy the basic and non-derogable principles of legality, nullum crimen sine lege and nulla poena sine lege. As such, this writer asserts that while the ratione personae of international criminal law applies to individuals and legal entities both private and public, all other legal issues pertaining to the penal responsibility of legal entities should depend on the type of transgression and the policies developed to prevent and punish the transgression in question. This will depend on the ratione materiae of each international crime because of the diverse nature and consequences of such crimes. In that respect, there is another potential conflict between international and national law when the former establishes a prohibition and the latter commands, permits, or condones that very conduct. In response to such a potential conflict, ICL has developed specific norms on the “defense of obedience to superior orders”28 and “command responsibility.”29 But more generally,

28 See Nico Keijzer, Military Obedience (1978); Leslie Green, Superior Orders in National and International Law (1976); Ekkhart Muller-Rappard, L’Ordre Supérieur Militaire et la Responsibilité Pénale du Subordonné (1965); Yoram Dinstein, The Defense of “Obedience to Superior Orders” in International Law (1965); Leslie Green, Superior Orders and Command Responsibility, 1989 Can. Y.B. Int’l L. 167 (1989). 29 See infra Chapter IV, section 6.

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ICL purports to be hierarchically superior to national law with respect to jus cogens crimes from which states cannot derogate.30 Section 3. International Criminal Responsibility of Individuals 3.1. Basis of Responsibility All criminal justice systems of the world recognize the concept of individual criminal responsibility for the violation of a norm that carries penal consequences. Consequently, individual criminal responsibility is a general principle of law, whether under national criminal law or under ICL. Because the difference between national criminal law and ICL is essentially related to the source of applicable law, it follows that if ICL can develop normative proscriptions, they can be applied to individuals who are the proper subjects of individual criminal responsibility. Whether ICL can impose such normative proscriptions directly and not through the mediation of states brings up a separate question relating to enforcement techniques. The question of individual criminal responsibility under ICL raises several issues. The first is whether individuals are the proper subjects of criminal responsibility under the applicable law, and in that respect, the answer is positive. The second issue is whether ICL can impose direct criminal responsibility upon individuals without going through the mediation of states, since states embody in their national criminal legislation the proscriptions arising under ICL. This issue goes to the very nature of ICL, and whether its sources of law and their binding legal effects allow it to penetrate the shield of state sovereignty. As discussed above, ICL’s sources permit such a penetration, though to what extent will depend upon the specific source of law under which the normative proscriptions arise, i.e., jus cogens, conventions, customs, or general principles. The third issue relates to the first two, but is essentially one of enforcement techniques, namely, whether ICL can directly enforce its normative proscriptions against individuals without going through the criminal justice processes of states. In that respect, as discussed above, ICL has established precedents that have settled this issue in favor of a dual approach, the “direct” enforcement system and the “indirect” enforcement system.31 The concept of individual criminal responsibility arising directly under ICL and subject to direct enforcement appeared in the post World War II Nuremberg and Tokyo Charters, and was relied upon in the prosecutions before the IMT

30 See infra Chapter III, section 3. 31  See infra Chapters VI and V, respectively.



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and IMTFE.32 Article 6 of the Nuremberg Charter established the principle of individual criminal responsibility.33 The IMT held that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”34 Subsequently, the U.N. General Assembly on December 11, 1946 formulated what became known as the “Affirmation of the Nuremberg Principle,”35 and confirmed the principle of direct individual criminal responsibility under ICL, irrespective of the dictates of national law. These precedents were reinforced with the establishment of the ICTY36 and ICTR.37 The principle of individual criminal responsibility for commission of international crimes is embodied in Articles 7(1) and 23(1) of the ICTY Statute and in Articles 6(1), 22(1) of the ICTR Statute.38 Furthermore, the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind provides in Article 2: 1.  A crime against the peace and security of mankind entails individual responsibility. 2. An individual shall be responsible for the crime of aggression in accordance with article 16. 3. An individual shall be responsible for a crime set out in article 17, 18, 19 or 20 if that individual: (a) intentionally commits such a crime; (b) orders the commission of such a crime, which in fact occurs or is attempted;

32 See M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11 (1997); Kai Ambos, Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis—From Nuremberg to The Hague, in 1 Substantive and Procedural Aspects of International Criminal Law 1 (Gabrielle Kirk MacDonald & Olivia Swaak-Goldman eds., 2000). 33 The same principle was established in the Tokyo Charter, Special Proclamation by the Supreme Commander for the Allied Powers in Tokyo. 34 Nazi Conspiracy and Aggression, Opinion and Judgment of the IMT 66 (1947); see also 1 Trial of the Major War Criminals Before the International Military Tribunal 171, 223 (1947). 35 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. Doc. A/236 (Dec. 1, 1946), at 1144. 36 See Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159, art. 5 [hereinafter ICTY Statute]. 37 See Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M., art. 3 [hereinafter ICTR Statute]. 38 See ICTY Statute, supra note 36; ICTR Statute, supra note 37; see also M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996); Roman Boed, The International Criminal Tribunal for Rwanda, in 3 International Criminal Law: International Enforcement 103 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 3 Bassiouni, ICL].

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chapter two (c) fails to prevent or repress the commission of such a crime in the circumstances set out in article 6; (d) knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its ­commission; (e) directly participates in planning or conspiring to commit such a crime, which in fact occurs; (f ) directly and publicly incites another individual to commit such a crime, which in fact occurs; (g) attempts to commit such a crime by taking action commencing the execution of a crime, which does not in fact occur because of circumstances independent of his intentions.39

Finally, the ICC Statute in Article 2540 provides only for individual criminal responsibility. It states: Article 25 Individual Criminal Responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) 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 jurisdiction of the Court; or

39 See Draft Code of Crimes Against the Peace and Security of Mankind: Titles and texts of articles on the Draft Code of Crimes Against Peace and Security of Mankind adopted by the International Law Commission at its forty-eighth session (1996), U.N. GAOR International Law Commission 48th Sess., U.N. Doc. A/CN.4/L.532 (July 8, 1996) [hereinafter ILC Draft Code of Crimes]; ICTY Statute, supra note 36; ICTR Statute, supra note 37; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1, U.N. GAOR, 5 Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996) [hereinafter 1996 PrepCom Report]. 40 See The Rome Statute of the International Criminal Court (ICC), 17 July 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute]; see also The Statute of the International Criminal Court: A Documentary History (compiled by M. Cherif Bassiouni, 1999).



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(ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f ) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

While these precedents and contemporary legal developments establish both the principle of individual criminal responsibility under ICL and the ability of ICL to directly enforce this principle without going through the mediation of states, other issues arise. These issues are connected to the legal content of individual criminal responsibility. National criminal justice systems differ as to what constitutes criminal responsibility, what conditions constitute exonerations, and all the questions arising under the general part of national criminal law. Thus, it is neither sufficient nor satisfactory that certain ICL instruments propound the principle of individual criminal responsibility before international bodies without addressing the questions of the general part. Understandably, this is a difficult task, but without a general part, attribution of individual criminal responsibility under ICL raises questions about whether it is contrary to the requirements of the principles of legality. It is in this respect that one can see the difficulty of making a transition from the “indirect” system to the “direct” enforcement system in ICL. But that difficulty is not inherent in the discipline of ICL, but rather a consequence of the international legislative process through which ICL develops, a process whose participants are diplomats and not experts in international criminal law and comparative criminal law and procedure. This weakness in the international legislative process is discussed below. Lastly, the fact that ICL operates through the “direct,” as well as the “indirect,” enforcement systems raises another set of questions as to the jurisdictional standards required to determine when ICL’s established basis of responsibility will be enforced by national criminal justice systems and when jurisdiction will vest in either a permanent or ad hoc international investigatory and adjudicatory body. The primacy of such direct enforcement mechanisms is not entirely settled. With respect to the ICTY and ICTR, the Security Council, which created these bodies as the functional equivalents of subsidiary organs of the Council, established the primacy of these Tribunals over national criminal justice systems. But this was possible because the Security Council established these bodies pursuant to its powers under Chapter VII of the United Nations Charter. In stark contrast to this, because the ICC was established by a treaty, its jurisdictional power rests

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upon the notion of complementarity of effective national criminal justice. In its development, ICL has been plagued by an absence of an international legislative policy, and this is the reason why these questions and others have not yet been satisfactorily addressed. 3.2. International Criminal Responsibility of Non-State Actors The criminal prosecution of non-state actors is not a new category in ICL, because international criminal responsibility is individual.41 However, because “crimes against humanity” requires a policy element as mentioned above, it is necessary to include groups that constitute non-state actors as qualifying for the legal capacity to formulate such a policy, which is a prerequisite for individual criminal responsibility. Since World War II, non-state actors have demonstrated their capacity for harm in conflicts of a non-international, purely internal character. In the many conflicts that have occurred since World War II,42 non-state actors have frequently exercised the same type of dominion and control over territories and populations as state actors have. They have also paralleled the organizational power structure of the state, albeit in a more indiscriminate and typically less structured manner. Partaking in the characteristics of a state or a state’s structure and exercising dominion and control over a territory or people makes such non-state actors the functional equivalents of state actors. The involvement of non-state actors in international crimes is particularly evident with respect to “crimes against humanity.”43 Up through World War II, victimization of civilians on a massive scale was fundamentally the product of “state action or policy.” It was perpetrated by agents of the state on the basis of a policy developed and carried out by several segments of the state’s public apparatus. This included elements of the armed forces, police forces, paramilitary units, and other elements of the civilian bureaucracy. In some cases, civilians were enlisted to carry out, in whole or in part, the commission of these crimes. But since World War II, however, non-state actors have assumed primary responsibility for victimizing civilians on a large scale. Non-state actors 41 It has been noted that for over 250 years individual criminal responsibility existed for various types of crime in international law. See Paust, supra note 6. 42 See, e.g., M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9 (1996); see also Jennifer Balint, The Place of Law in Addressing International Regime Conflicts, 59 Law & Contemp. Probs. 103 (1996); Jennifer Balint, Conflict, Conflict Victimization, and Legal Redress, 1945–1996, 59 Law & Contemp. Probs. 231 (1996). 43 See Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d rev. ed. 2001); Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002) (describing many cases which are more appropriately characterized as “crimes against humanity” than genocide); see also Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press 2006).



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have included paramilitary units, armed civilian bands, and, most ­shockingly, children, even younger than sixteen. In the conflict in the former Yugoslavia, most of the crimes falling within the meaning of “crimes against humanity” had been committed by paramilitary groups and armed civilian bands.44 In the Rwanda conflict, Hutu civilians were incited to kill Tutsi civilians. On numerous occasions, it was “child soldiers,” children under the age of eighteen, who committed the worst crimes.45 In other criminal conflicts, like the one in Liberia, armed civilian bands, many of which were manned by children under eighteen, committed “crimes against humanity.”46 These and other conflicts revealed new facts, which the Nuremberg Charter neither contemplated nor to which Article 6(c) applied. The analogy to the pre-Charter situation is striking. At that time, international humanitarian law had not specifically anticipated the crimes the Nazi regime perpetrated. Thus, the adoption of Article 6(c) of the Nuremberg Charter, “Crimes Against Humanity,” was driven by the evidence arising out of Nazi conduct.47 The analogy to post-World War II victimization by non-state actors is self-evident. “Crimes Against Humanity,” as formulated in the Nuremberg Charter’s Article 6(c), did not contemplate nor apply to non-state actors. But the need for an extension of those norms became apparent in the conduct of belligerents in Yugoslavia and Rwanda. Thus, Post-Charter developments,48 particularly Article 4 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC Statute, evolved the underlying norms of Article 6(c) to apply to non-state actors. This evolution was facilitated by the removal of the pre-requisite warconnecting link between “crimes against humanity,” “crimes against peace” and “war crimes.”49 Just as the extension of “crimes against humanity” was made in Article 6(c) of the Charter as an emanation of “war crimes,”50 so was the extension of “crimes against humanity” from state actors to non-state actors in PostCharter developments.51 The first of these extensions was the application of extant norms of the law of armed conflict to civilians who are nationals of the 44 See Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 47th Sess., Annex, U.N. Doc. S/1994/674 (May 27, 1994); Annexes to the Final Report, U.N. SCOR, 47th Sess., U.N. Doc. S/1994/674/Add.2 (Dec. 28, 1994) (see particularly Annex I on paramilitary groups). 45 See Boed, supra note 38. 46 See Children in Armed Conflict, Interim Report of Special Representative of the SecretaryGeneral, Mr. Olara A. Otunnu, Submitted Pursuant to General Assembly Resolution 52/107, U.N. Doc. E/CN.4/1998/119 (March 12, 1998); Report of the Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts on its Fourth Session, U.N. Doc. E/CN.4/1998/102 (March 24, 1999). 47 See M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 115–27, 136–46 (2011). 48 See generally id. at 167–295. 49 See generally id. at 40–42, 136–46, 167–83. 50 See generally id. at 136–46. 51  See generally id. at 40–42, 167–69.

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perpetrating state.52 The second extension from the Article 6(c) formulation is found in Article 4 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC Statute, whose applications cover non-state actors.53 While these latest extensions were driven by the new realities of violent conflicts in the post-World War II era, they were nevertheless limited and predictable extensions. The non-state actors who are now covered by these extensions are those who have the same legal characteristics of state actors. Thus, these nonstate actors must have some of the characteristics of state actors, which include the exercise of dominion or control over territory or people, or both, and the ability to carry out a “policy” similar in nature to that of “state action or policy.” Thus, descriptive terms as “widespread or systematic” acts directed against a civilian population, contained in Article 3 of the ICTR Statute and Article 7 of the ICC Statute, refer not only to the nature of the act, but also characterize the manner in which the large-scale victimization occurred. This characterization relates to the underlying “policy” that coordinated such crimes. It is therefore that underlying “policy” that constitutes the international or jurisdictional element that distinguishes “crimes against humanity” committed by non-state actors from crimes within the domestic jurisdiction of the state where the crimes in question occurred.54 It should be noted, however, that the 1948 Genocide Convention also applies specifically to non-state actors.55

52 See supra note 49. For an discussion of the impact of holding corporations criminally liable, see Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nations Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in International Law, 37 Colum. Hum. Rts. L. Rev. 287 (2006). 53 A question that arises is whether the existence of an international tribunal should be a necessary condition for establishing international criminal responsibility. If the answer is in the positive, then individual criminal responsibility would have no meaning without it. In looking at the historical development of ICL, however, it becomes apparent that this is not the case. The principle was affirmed even before the establishment of the ICTY, the ICTR, and the ICC, and the statutes establishing these institutions make no reference to the international penal tribunals in establishing the principle of individual criminal responsibility. What may be inferred, then, is that the existence of an international tribunal is a sufficient, but not a necessary, condition for the principle of individual criminal responsibility. If one is to accept this position, ICL can be regarded as an important branch of international law which promotes this driving principle alongside ICL: prosecution and punishment of offenders. See M. Cherif Bassiouni, The New Wars and the Crisis of Compliance With the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008). 54 In a recent report by Human Rights Watch on Palestinian suicide bombers, it was argued that non-state actors engaging in such conduct committed “crimes against humanity.” This conclusion was probably reached on the basis of the ICC’s Article 7. However, in this writer’s opinion, this conclusion was a stretch of what Article 7 was intended to cover. It is certainly not valid on the basis of existing law. This progressive position risks including in the category of “crimes against humanity” organized crime groups like the mafia, and other similar groups. See Andreas Schloenhardt, Transnational Organized Crime and International Criminal Law, in 1 Bassiouni, ICL, supra note 21, at 939. 55 See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. IV, 78 U.N.T.S. 277, 28 I.L.M. 763 (entered into force Jan. 12, 1951).



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Section 4. Criminal Responsibility of Heads of State and Other Persons Benefiting from International Immunities 4.1. Introduction The international regime of immunities is an outgrowth of the Westphalian conception of international relations, which is predicated on the co-equal sovereignty of states. Traditionally, the representatives of sovereign states were immune from the legal processes of other states, be they civil or ­criminal. The issue of head of state immunity arises in three different contexts, and a different law applies to each. The three contexts are: national proceedings against a national who is or was a head of state, national proceedings against a foreign head of state, and international proceedings against a sitting or former head of state. In the wholly national context, the former or incumbent head of state is prosecuted in a national court employing domestic laws and procedures, such as in the case of the former Egyptian president Hosni Mubarak. In national proceedings against foreign former or incumbent head of state based on the national forum’s laws or international law. An example of this situation is the proposed prosecution of former Chadian President Hissène Habré, whether in Senegal or in Belgium. In the international context, a former or incumbent head of state is tried before an international tribunal, whether the ICC, the Ad Hoc tribunals or mixed-model tribunals. Examples of this include the prosecution of Slobodan Milošević by the ICTY or Jean Kambanda by the ICTR. With respect to the first category, national law controls the proceedings entirely. The main issue which arises in this context is whether any aspect of the national law, in particular the constitution, stands in contrast or opposition to a jus cogens norm of international law. As discussed below, heads of state do not enjoy any substantive immunity for jus cogens crimes. Accordingly, national law, including the constitution of the relevant state, cannot provide for substantive immunity to the accused. However, as held by the ICJ in the Belgium v. Congo case,56 customary international law does provide for temporal immunity for heads of state, an exception that also applies to domestic proceedings unless the law of that state provides otherwise. With regards to the second category, national courts prosecuting a former or incumbent foreign head of state who is not a national of the forum state, the prosecuting state must also apply customary international law, whether for the purposes of prosecution or extradition in addition to national law.57 While national law applies both for substance and procedure, it cannot override a jus

56 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, I.C.J. Reports 2002. 57 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J. 

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cogens substantive norm. Thus the state in question would have the obligation to extradite or prosecute subject to the customary international law norm of temporal immunity for incumbents.58 In the third category concerning the prosecution of a former or incumbent head of state before an international, ad hoc or mixed-model tribunal, the laws and procedures of the relevant tribunal apply. For instance, if the proceedings are before the ICC, Article 27 of the Rome Statute controls thereby stripping the accused of his/her substantive and temporal immunity. Each tribunal’s rule on the subject will prevail. Accordingly, ad hoc and mixed model tribunals have followed the respective rules of their statute. The international immunity regime applies to heads of state,59 diplomats,60 and officials on state missions.61 With respect to all such offices, a distinction is made between incumbent public officials and former public officials. The incumbent public officials benefit from certain substantive and temporal immunities, while the former public officials benefit only from substantive immunities for lawful acts of state. Subsequent to World War I, the traditionally applied absolute immunity regime began to show cracks, and after World War II it changed to a qualified

58 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, I.C.J. Reports 2002.  59 Le Chef d’Etat et le Droit International (SFDI 2002); J. Bröhmer, State Immunity and the Violations of Human Rights (1997); Jean Salmon, Manuel de Droit Diplomatique 559 et seq. (1994); Oppenheim’s International Law 1036 et. seq. (R. Jennings & A. Watts eds., 9th ed. 1992); Charles Rousseau, Droit International Public 123 et. seq. (1980). For early writings on the position of immunity of heads of state, see Emmerich de Vattel, Le Droit des gens, ou principles de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains 289 (1773). See also Marc Henzelin, L’Immunité pénale des chefs d’Etat en matiere financiere: Vers une exception pour les actes de pillage de resources et de corruption?, in 12 Revue suisse de droit international et de droit européen 179 (2002); Mary Margaret Penrose, It’s Good to be the King!: Prosecuting Heads of States and Former Heads of State Under International Law, 39 Colum. J. Transnat’l L. 193–220 (2000); Jill M. Sears, Confronting the ‘Culture of Impunity:’ Immunity of Heads of State from Nuremberg to Ex Parte Pinochet, 42 German Y.B. Int’l L. 125 (1999); A. Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 249 (1999); Ved. P. Nanda, Human Rights and Sovereign and Individual Immunity (Sovereign Immunity, Act of State Immunity and Diplomatic Immunity): Some Reflections, ILSA J. Int’l & Comp. L. 467 (1999); Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Receuil des Cours de l’Academie de La Haye (RCADI) 9 (1994); Stacy HumesSchulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008). 60 Vienna Convention on the Law of Diplomatic Immunity, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; see also Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. (Feb. 14), reprinted in 41 I.L.M. 536 [hereinafter Congo v. Belgium] (holding in part that ministers of foreign affairs have diplomatic immunity under the Vienna Convention on the Law of Diplomatic Immunity). 61 See United Nations Convention on Special Missions, Dec. 16, 1969, 1035 U.N.T.S., arts. 21, 29, 31, 34, & 42 (entered into force June 21, 1985); see also European Convention on State Immunity, May 16, 1972, E.T.S. 74; Additional Protocol to the European Convention on State Immunity, May 16, 1972, E.T.S. 74A.



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immunity regime as substantive immunities for certain international crimes were removed while temporal immunity was retained. During the last decade, however, there have been signs of the erosion of temporal immunity, though, as discussed below, the ICJ recently affirmed it. Conversely, the ICC statute, also discussed below, unequivocally rejects it. 4.2. Historical Evolution before International Judicial Organs and under Conventional ICL The first attempt to prosecute a head of state was after World War I when the 1919 Treaty of Versailles provided in Article 227 for the prosecution of Germany’s head of state, Emperor William II. Kaiser Wilhelm. Wilhem, however, sought refuge in the Netherlands, which gave him asylum on the basis that the crime for which he was charged, namely, “the supreme offense against the sanctity of international treaties”62 was a political crime for which the Netherlands could refuse extradition.63 In 1945 the Nuremberg Charter, in Article 7, removed the immunity of heads of state from criminal prosecution. The same provision was included in Article 6 of the IMTFE Charter. The IMT prosecuted Admiral Karl Dönitz who was appointed Germany’s named successor Chancellor (head of state) by Adolph Hitler before the latter committed suicide in Berlin. The IMT also prosecuted Fritz von Pappen, who was Germany’s Vice-Chancellor and foreign minister during the Third Reich (and previously Chancellor of Germany before the takeover of the Third Reich), and Hermann Goering, Deputy Chancellor of Germany’s Third Reich.64 The IMTFE did not, however, prosecute Japan’s head of state, Emperor Hirohito, but did prosecute a former head of government, cabinet officers, and diplomats, all of whom were convicted and sentenced.65 Thus, a new rule of customary international law was established, namely that international immunities do not apply to international criminal prosecutions for certain international crimes which, with respect to the IMT and IMFTE, were “crimes against peace,”

62 Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, art. 227, 11 Martens (3d) 323, reprinted in 2 Bevans 43. 63 See M. Cherif Bassiouni, World War I: “The War to End all Wars” and the Birth of a Handicapped International Criminal Justice System, 33 Denv. J. Int’l. L. & Pol’y 255 (2002). 64 See Mark Drumbl, Immunities and Exceptions, in 2 International Criminal Law: Multi­ lateral and Bilateral Enforcement Mechanisms 231 (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 2 Bassiouni, ICL]. 65 Shumoko Hata, War Minister; Kiichiro Hiromma, Prime Minister; Kaki Hirota, Minister of Foreign Affairs and Ambassador; Kaichi Kida, Minister of Education; Jiro Minami, Minstry of War; Mamoru Shigemitsu, Ministry of Foreign Affairs and Ambassador; Shigetaro Shimada, Ministry of the Navy; and Shigenari Togo, Ministry of Foreign Affairs. See M. Cherif Bassiouni, International Criminal Justice in Historical Perspective, in 3 Bassiouni, ICL, supra note 38, at 29.

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“war crimes,” and “crimes against humanity”—the three crimes contained in their respective statutes.66 Post-World War II national prosecutions, which were based on national laws, relied on and cited the IMT and the IMTFE Statutes and their respective jurisprudence as support for their national prosecutions.67 In 1993 and 1994, the Security Council established the ICTY and ICTR, whose Articles 7(2) and 6(2), respectively, provided for the non-applicability of head of state immunities. Both of these Tribunals prosecuted former heads of state: Slobovan Milosevič of the Former Republic of Yugoslavia68 and Jean Kambanda of Rwanda.69 The latter was convicted and sentenced to prison while the former died during his trial at The Hague. Thus, the precedents of the IMT and IMTFE were reaffirmed in the respective statutes and jurisprudence of the ICTY and ICTR.70 The U.N. General Assembly in a 1946 resolution, which is considered declarative of customary international law, affirmed the non-applicability of head of state immunity in connection with international crimes.71 Subsequently, in the ILC’s 1950 “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal,”72 the same principle was affirmed.73 Presumably, these international crimes were meant to be those contained in the IMT and IMTFE, namely “crimes against peace,” “war crimes,” and “crimes against humanity.”74 Also, this exception from the international 66 Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, art. 6, 59 Stat. 1544, 82 U.N.T.S. 279, [hereinafter IMT Charter]; Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, art. 5, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter]. 67 They include: the Eichmann trial in Israel; the Barbie, Touvier, and Papon trials in France; Finta in Canada; and Kapler in Italy. See Bassiouni, Crimes Against Humanity, supra note 47, at 664–84. 68 ICTY Indictments of Slobodan Milosevič, Nos. IT-99-93-I (24 May 1999) (Kosovo); IT-01-50-I (8 Oct. 2001) (Croatia); IT-01-51-I (22 Nov. 2001) (Bosnia); see Michael P. Scharf & William A. Schabas, Slobodan Milosevic on Trial: A Companion (2002); Norman Cigar & Paul Williams, Indictment at the Hague: The Milosevic Regime and Crimes of the Balkan Wars (2002); Paul R. Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002); Michael P. Scharf: Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997). 69 Prosecutor v. Kambanda, Case No. ICTR-97-23-S (Sept. 4, 1998); Prosecutor v. Kambanda, Case No. ICTR-97-23-I (Oct. 19, 2000). 70 Admittedly, these two tribunals were established by the Security Council pursuant to its powers under Chapter VII of the Charter to prevent threats to peace and to the maintenance of peace; but in the exercise of these powers, the Security Council acted in conformity with established principles of customary international law. 71 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, supra note 35. 72 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission Covering Its Second Session, 5 June–29 July 1950, 5 U.N. GAOR Supp. (No. 12), at 11–14; U.N. Doc. A/1316 (1950). 73 Id.; see Principle III, which specifically excludes head of state immunity. 74 See supra note 5.



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immunities regime presumably extends to international as well as to national criminal jurisdictions. By implication, therefore, states other than those of the public officials’ nationality can rely on this exception and invoke the theory of universal jurisdiction to prosecute such persons before their own national courts.75 The 1948 Genocide Convention in Article 4, the 1973 Apartheid Convention in Article 3, and the 1984 Torture Convention in Articles 4 and 12, removed head of state and other public official immunity from criminal prosecution, again, presumably irrespective of whether prosecution is before a national or international judicial body. The language employed by these provisions does not, however, explicitly state that the removal of substantive immunity for these crimes also removes temporal immunity. The ICJ’s 2002 decision in Congo v. Belgium,76 discussed below, recognizes the existence of temporal immunity for incumbent officials. The ICC statute, however, takes a categorical position in Article 27, which states: Article 27 Irrelevance of Official Capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The ICC Statute removes substantive and temporal immunity for all public officials for “genocide,” “crimes against humanity,” and “war crimes”—all three being crimes within the Court’s jurisdiction.77 Furthermore, Article 5 of the ICC ­statute includes “aggression,” the definition and jurisdictional conditions of which were recently addressed at the ICC Kampala Review Conference in 2010.78 On March 5, 2009, the ICC issued an arrest warrant for Sudan’s President Omar Hassan Ahmed Bashir. The warrant charged Bashir with seven counts of war crimes and crimes against humanity for events in Darfur. On June 27, 2011, the ICC 75 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001); c.f. Marc Henzelin, Le Principe de L’Universalité en Droit Pénal International (2000). 76 See Congo v. Belgium, supra note 60. 77 See ICC Statute, supra note 40; see also Bassiouni, Statute of the ICC, supra note 40; Ratification and National Implementing Legislation, 71 Revue Internationale De Droit Pénal 41–81 (M. Cherif Bassiouni ed., 2000). 78 Res. RC/Res. 6, U.N. Doc. RC/Res. 6 (June 11, 2010).

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issued its second arrest warrant for Libyan leader Muammar Gadhafi, and his son, Saif Al-Islam Gadhafi and Abdullah Al-Senussi for crimes against humanity; Muammar Gadhafi was killed on October 20, 2011 and his son and Al-Senussi are in custody in Libya and Mauritania, respectively.79 4.3. Customary Practice of States The practice of states has been equivocal as to the question of head of state and other public official immunities, though many states have entertained suits predicated on the commission of international crimes by state officials.80 The United Kingdom’s House of Lords found the former Chilean head of state, Augusto Pinochet, unprotected from former head of state immunity for the crime of torture, which, as alleged by a Spanish extradition request, had been committed on his instructions during his military dictatorship control of Chile.81 The House of Lords recognized the applicability of head of state immunity both under customary international law and under U.K. law, and also recognized the obligation of the U.K. to comply with a foreign state’s extradition request for a former head of state in accordance with the provisions of U.K. law,82 which in 79 Situation in the Libya, ICC, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/ICC0111/Situation+Index.htm (last visited Nov. 3, 2011); Muammar Gaddafi Killed in Libya, BBC News, Oct. 20, 2011, http://www.bbc.co.uk/news/world-africa-15389550; Richard Roth, ICC: Mercenaries May Try to Help Gahdafi Son Escape, CNN, Nov. 3, 2011, http://www.cnn.com/2011/11/02/ world/un-libya/index.html?hpt=wo_c2. 80 See Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 EUR. J. INT’L L. 853, 870–71 (2002) (referring to cases in which British, Dutch, French, Israeli, Italian, Mexican, Polish, Spanish, and U.S. courts have entertained proceedings against foreign state officials—particularly foreign military officers—with respect to war crimes, crimes against humanity, and genocide). 81 All Lords agreed that immunity exists under U.K. and international law for all acts and from all penal and civil consequences. When a person ceases to be a head of state, he has no immunity except for those acts which are jure imperii during his incumbency. In the first decision of 25 November 1998, by three-to-two majority, the Law Lords revoked the immunity of Pinochet, a decision upheld in the Law Lords’ second decision of 24 March 1999, and therefore, Pinochet was extraditable to Spain. The Home Secretary, exercising “Executive Discretion,” withheld extradition on humanitarian grounds, on the basis that Pinochet was too ill to stand trial and, instead was allowed to return to Chile. See Regina v. Bow Street Metropolitan Stipendiary Magistrate (No. 1), ex parte Pinochet Ugarte, [1998] 3 W.L.R. 1456 (H.L.), reprinted in 37 I.L.M. 1302 (1998); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R. 272 (H.L.), reprinted in 38 I.L.M. 430 (1999); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.); see also Alun Jones, Jones on Extradition (1995); Hartley Booth, British Extradition Law and Procedure (1980); The Law of Extradition and Mutual Legal Assistance (Clive Nicholls, Clare Montomery & Julian Knowles eds., 2002); M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th rev. ed. 2007); Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129 (1999). 82 United Kingdom State Immunity Act of 1978, which excludes jure imperii but not jure gestionis. The same distinction exists in substance in the U.S. Foreign Sovereigns Immunity Act of 1976, 90 Stat. 289l, 28 U.S.C. §§1330, 1332(a), 1391(f), 1601–11. Both incorporate the customary international law doctrine of the Act of State.



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this case had incorporated the 1984 Torture Convention. Furthermore, the House of Lords rejected the contention that the immunity granted to Pinochet under Chilean law was binding on the U.K. insofar as the 1984 Torture Convention provided for the obligation to prosecute or extradite persons accused of such a crime and that the obligations of the said Convention had become part of U.K. law. Germany and Spain have also entertained suits against various foreign states based on their aggressive universal jurisdiction statutes enacted after the Pinochet litigation in the U.K.83 Suits have also been brought before the European Court of Human Rights and Australian tribunals.84 In 1999, another cause célèbre prosecution involving a former head of state took place in Senegal. A criminal complaint was filed by several plaintiffs in that country against the former head of state of Chad, Hissène Habré. The former dictator of that country was accused, inter alia, of murder and torture in Chad.85 Senegal, as a state party to the 1984 Torture Convention, was faced with its obligation to prosecute or extradite.86 After an initial finding by the Senegalese Judge of Instruction that the former head of state was subject to the criminal jurisdiction of Senegal, the decision was reversed by the Senegal Cour de Cassation.87 Nevertheless, in 2002, that decision was reconsidered.88 Moreover, a Juge d’ Instruction from Belgium considered an indictment in Belgium of Habré pursuant to Belgium’s national law of 1993, as amended in 1999,89 which gives it 83 Suits have been brought in Spain against Chinese and Guatemalan officials and in Germany against Donald Rumsfeld and other U.S. military officials for alleged torture at Abu Ghraib. The case against U.S. officials did not proceed. See Dr. Christopher D. Totten, Head-of-State and Foreign Official Immunity in the United States After Samantar: A Suggested Approach, 34 Fordham Int’l L.J. 332, 366–68 (2011). 84 The European Court of Human Rights heard cases involving actions by U.K. officials. See, e.g., McElhinney v. Ireland, App. No. 31253/96, 2001-XI Eur. Ct. H.R. 37; Al-Adsani v. United Kingdom, App. No. 35763/97, 34 Eur. H.R. Rep. 11 (2001); Fogarty v. United Kingdom, App. No. 37112/97, 34, Eur. H.R. Rep. 302 (2001). See generally Marius Emberland, Discussion of International Decisions, 96 A.J.I.L. 699 (2002). For a discussion of Australian cases involving foreign states, see Richard Garnett, Foreign States in Australian Courts, 29 Melbourne U. L. Rev. 704 (2005). 85 Documents on the Habré case can be found at Habré, Human Rights Watch, http://www .hrw.org/justice/habre (last visited June 4, 2012). 86 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51), at 197, arts. 5(2), 7(1), U.N. Doc. A/39/51 (1984) (establishing the duty to prosecute or extradite). Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, 2375 U.N.T.S. 24841 (2003). The U.S. is not a signatory to the Optional Protocol. 87 See supra note 85. 88 Id. 89 Act Concerning the Punishment of Serious Violations of International Humanitarian Law § 7 (Belgium). Belgian Law of 16 June 1993, as amended by the Law of 10 February 1999. As a consequence of the ICJ’s decision in Congo v. Belgium, supra note 60, the Cour de Cassation held that international immunities apply on a temporal basis. Consequently, the Belgian courts must suspend proceedings against such persons. As a result, an amendment to the 1993 law was introduced before the Belgium Senate and the Conseil d’Etat expressing its position on the proposed law that provided that in cases where there is no “link” to Belgium, the investigatory authority must defer the case to the ICJ or to a state seeking to exercise its jurisdiction. Belgium thus remains

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universal jurisdiction over certain international crimes, namely, “genocide,” “crimes against humanity,” and “war crimes.”90 Belgium eventually issued an arrest warrant for Habré but Senegal refused to extradite him. While Habré awaited trial in Senegal, a Chadian court convicted Habré of providing “financial, material and moral support to the rebels” and sentenced him to death in absentia in 2008 for planning to overthrow Chad’s government.91 Habré was convicted along with eleven Chadian rebel leaders for threatening the “constitutional order” of Chad.92 Human rights groups have consistently opposed Habré’s extradition to Chad and prefer to see him tried in Senegal, an option still available because Habré was not convicted of crimes against humanity.93 Belgium brought the issue of Senegal’s duty to extradite or prosecute before the International Court of Justice in 2009. Belgium and Senegal made arguments to the ICJ in March 2012 and an opinion is expected later in the year.94 Contemporaneously, in November 2010 the court of justice of Economic Community of West African States found that Habré may only be tried in an “ad hoc special tribunal of an international character.”95 But Senegal withdrew from talks to establish a tribunal to try Habré, drawing criticism from the African Union.96 After initially planning to return Habré to Chad on July 11, 2011,97 Senegal suspended Habré’s repatriation to Chad.98 The prospect of Habré being tortured in Chad was a reason for the UN Human Rights chief Navi Pillay to plead against his repatriation, particularly in light of Senegal’s status as a party to the Convention Against Torture.99

the jurisdiction of last resort, but subject to certain limitations. See Amendments to the Law of 16 June 1993, 5 April 2003, Sénat de Belgique, 2–1256/14; see also A. Andries, C. Van den Wyngaert, E. David, & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la repression des violations graves de droit international humanitaire, Revue de Droit Pénal et de Criminologie 1133 (1994); Damien Vandermeersch, Compètence universelle et immunités en droit international humanitaire la situation belge, in Le Droit Pènal a l’epreuve de l’internationalisation 227 (Marc Henzelin & Robert Roth eds., 2002). 90 Id. 91 Chad Confirms Former President Habre’s Conviction, Agence France Presse (AFP), Aug. 19, 2008, available at http://afp.google.com/article/ALeqM5jRB8NAgF4CYAzlVwngJZzPdkgKFw. 92 Id. 93 Moumine Ngarmbassa, Habre death sentence won’t alter Senegal case—Chad, Reuters Africa, Aug. 19, 2008, http://www.reuters.com/article/2008/08/19/idUSLJ487890._CH_.2400. 94 Press Release, International Court of Justice, Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ( March 21, 2012), available at http://www.icj-cij.org/docket/ files/144/16953.pdf; African Union: Press Senegal to Extradite Habré, Human Rights Watch, June 28, 2011, http://www.hrw.org/en/news/2011/06/28/african-union-press-senegal-extradite-habr. 95 Hissène Habré v. Senegal, Decision No. ECW/CCJ/JUD/06/10, ¶ 61 (Ct. of Justice of the Econ. Union of West Afr. States, Nov. 18, 2010), available at http://www.hrw.org/en/habre-case. 96 Human Rights Watch, supra note 85.    97 Senegal Urged to Halt ex-Chad Leader Habre Extradition, BBC News, July 10, 2011, http://www .bbc.co.uk/news/world-africa-14097937.    98 Senegal suspends Hissene Habre’s repatriation to Chad, BBC News, July 10, 2011, http://www .bbc.co.uk/news/world-africa-14101258.    99 Id.



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But Pillay stressed that Habré must be prosecuted or extradited to face charges against him.100 Habré has expressed a willingness to appear before an international tribunal to answer charges of atrocities during his rule, and the Belgian foreign ministry has indicated it will bring Senegal’s ambassador the option of trying Habré in Belgium for crimes against humanity.101 Recently, Chad issued a communiqué stating that it would like to see Senegal send Habré to Belgium.102 In the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Seneral) case (the Habré case),103 the ICJ affirmed its earlier position in the Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom and Libya v. United States of America) case (the Lockerbie case) regarding the duty of states when to extradite or prosecute.104 The two cases resulted in similar holdings, in essence that the duty to prosecute “outweighs” the duty to extradite, even though both cases arose under different conventions, namely the 1971 Montreal Convention for the Lockerbie case,105 and the 1984 CAT for the Habré case.106 Neither case, however, addressed the implicit requirements of fairness and effectiveness discussed below. The Lockerbie and Habré cases turned on the interpretation of relevant provisions of the Montreal Convention and the CAT, respectively. Article 7 of the Montreal Convention declares that: The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.

   100 Former Chad dictator Habre ‘Must Face Prosecution’, AFP, July 12, 2011, available at http:// www.google.com/hostednews/afp/article/ALeqM5iQjSs_ZIiY5fv8P8Ls-i-GvHvIVA?docId=CNG.b2c eadbac94f53ed52774bcb398e39c0.4b1 (last visited Nov. 3, 2011).    101 Chad’s Habre Willing to Appear Before International Tribunal, AFP, July 14, 2011, available at http://www.google.com/hostednews/afp/article/ALeqM5jDtseSoEIlNRuBfgKek-FePuSCVg?docId= CNG.0417e1235e0b3c919628eb16a61a6020.121 (last visited Nov. 3, 2011).    102 Senegal: Chad Asks for the Extradition of Hissène Habré to Belgium, Human Rights Watch, July 22, 2011, http://www.hrw.org/news/2011/07/22/senegal-chad-asks-extradition-hiss-ne-habrbelgium. 103 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ (July 20). 104 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United States and United Kingdom), Provisional Measures Order, 1992 I.C.J. 3 (April 14). 105 Convention For The Suppression Of Unlawful Acts Against The Safety Of Civil Aviation, Sept. 23, 1971, 974 U.N.T.S. 177. 106 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. res. 39/46, U.N. Doc. A/39/51.

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Article 7(1) of the CAT provides that: The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Both Conventions use substantially the same language with the same syntactical construction, namely: if the state in which the alleged perpetrator does not extradite, then it must prosecute him/her. Under Article 31 of the Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”107 The ICJ, in both the Lockerbie and Habré judgments, reasonably concluded on the basis of the “ordinary meaning” of Article 7 of the Montreal Convention and Article 7(1) of the CAT that the duty to prosecute precedes that of extradition. The ICJ’s two rulings have their logic, as the requested state is likely to be the one where the crime occurred, or the state of nationality of the alleged perpetrator (as in the Lockerbie case) or the state in which the alleged perpetrator has sought asylum (as in the Habré case). In the Habré case, Belgium, the requesting state, claimed universal jurisdiction over the crimes under the CAT, but was neither the state in which the crimes occurred nor the state of nationality of the alleged perpetrator. Senegal did not satisfy these jurisdictional assumptions either, but the fact that it was the state which gave Habré asylum after his escape from Chad that gave it priority over extradition in the eyes of the ICJ. Under Article 7 of the CAT all state parties have an obligation to prosecute, and it was therefore logical and reasonable for the ICJ to conclude that Senegal, the state of custody, had the duty to prosecute Habré, and failing that, to extradite him to Belgium. The Court interpreted extradition as being optional under the CAT, which underscored its secondary status in relation to the obligation to prosecute. In summarizing the duty to prosecute or extradite, the Court stated that: . . . if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.108 107 Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 UNTS 331. 108 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____, ¶¶ 89–95 (July 20).



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Unfortunately, in stating categorically that prosecution invariably outweighs extradition, the Court failed to take into account any jurisdictional priorities or state interests that a requesting state may have over the custodial state. This is particularly so where the requesting state is the territory on which the crime was committed or the state whose nationals were the victims of the crime, while the custodial state may have only the physical presence of the alleged perpetrator as a jurisdictional nexus.109 While both the Lockerbie and Habré cases dealt with the issue of prosecution or extradition, otherwise reflected in the maxim aut dedere aut judicare, both judgments relied on the respective applicable treaties, namely, the Montreal Convention and the CAT. The Court did not rely on, or supplement, its understanding of the respective provisions with developments in customary international law. This omission is particularly significant since there have been developments in customary international law since the drafting of the 1971 Montreal Convention and the 1984 CAT which should have led the ICJ to an interpretation of the alternative duties to prosecute or extradite that includes the implicit requirements to provide an effective and fair trial. Satisfying these requirements is essential not only to achieving the object and purpose of the respective conventions to prevent and punish the underlying crimes, but also to respect the rights of the accused and the victims, a class that is increasingly recognized in international law.110 The right to a fair trial is well established in international human rights law. Fairness in judicial proceedings is required by Article 14(1) of the ICCPR,111 as 109 For theories of jurisdiction see M. Cherif Bassiouni, International Extradition: U.S. Law and Practice (forthcoming 2012), ch. 6. 110 The rights of victims are detailed in the 2006 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (March 21, 2006). Similarly, Article 68(3) of the Rome Statute of the ICC provides that, Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The Extraordinary Chambers in the Courts of Cambodia also provides for victim participation through “Civil Party” representation, with rights of audience and the power to question ­witnesses. 111 International Covenant on Civil and Political Rights, Dec. 16, 1966, G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966). Article 14 of the ICCPR states: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a ­democratic

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well as the ECHR112 and the ACHR.113 The courts established by the ECHR and ACHR have issued a number of decisions supporting the proposition that a person should not be extradited to a state where he/she is likely to be tortured or treated with discrimination, or where his/her fundamental procedural rights would be violated. Admittedly, no ICL convention containing a provision on the duty to prosecute or extradite specifically includes such implicit conditions requiring effectiveness of the prosecution and fairness of the prosecution by both the requested and requesting states. Nevertheless, the ICJ failed to provide any guidance on the society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. 112 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222. 113 American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.



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question of such implicit conditions in the Habré case even though the existence of these conditions is inferred on the basis of logic and sound legal judgment. Logic and sound legal judgment dictate that at the very least effectiveness precludes sham prosecutions and extradition to states which are likely to engage in such proceedings. The effectiveness requirement can, for instance, be read into the willingness provision of Article 17 of the ICC Statute, which states: 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.114

114 Rome Statute of the International Criminal Court, art. 17, July 17, 1998, 2187 U.N.T.S. 90.

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At the heart of Article 17 is an analysis of whether the national courts of the state seeking to remove jurisdiction from the ICC are “unwilling or unable genuinely to carry out the investigation or prosecution”. Such an analysis could be transposed onto extradition cases by requiring states to assess whether national courts in the requesting or requested state have the capacity, will and independence to effectively investigate and prosecute a particular case. Surprisingly, the ICJ in the Habré case did not address the issue of effectiveness or fair trial, nor did it even refer to them, thus leaving open the question of when and how the duty to prosecute or extradite under either a treaty ­obligation—including under the Montreal Convention or the CAT—or under customary international law, is to be interpreted if the requesting or requested state is unable or unwilling to guarantee an effective or fair trial. In the Habré case, the ICJ referred to Article 6 of the CAT,115 which requires the investigation of torture allegations. The ICJ could have relied on this provision to consider investigation as a prelude to prosecution, and to consider that an effective and prompt investigation also extends to an effective and prompt prosecution. This was not the case, even though Senegal first indicted Habré in 2000. The ICJ could have reasonably considered that after 12 years, Senegal was not particularly diligent in the pursuit of investigation and prosecution of Habré, and that this would have a bearing on the future capacity to ensure an effective and fair prosecution. One must infer from the context of the case that the Court found it more practical for Senegal to pursue its prosecution, particularly since its government had indicated its willingness to do so than to order Habré’s extradition to Belgium. Thus, Senegal’s explanation for the delay in moving to the prosecutorial stage is the costly and complex nature of the case, but that this alone was not enough to justify removing the case to Belgium. It should also be noted that the in the Habré case the Court concluded that “the prohibition of torture is part of customary international law and it has become a peremptory norm of international law (jus cogens).”116 However, the Court went on to qualify this holding by stating that “the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applies only to facts having 115 Article 6 provides, in pertinent part: 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶¶ 78–88, 120 (July 20). 116 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶ 99 (July 20).



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occurred after its entry into force for the State concerned.”117 One would have expected the Court to be more progressive on this question, especially in light of the jus cogens status of the crime of torture.118 A number of national jurisdictions have dealt with the issue of non-applicability of immunities for heads of state, though most of them have been those of the state of nationality of the former head of state. These efforts, however, have not always produced the outcomes of prosecution or extradition. Among these cases are the successful extradition from the U.S. to Venezuela of its former head of state, Carlos Perez Jimenez, charged with embezzlement;119 and the unsuccessful efforts of the Philippines to obtain the surrender of its former head of state, Ferdinand Marcos, from the U.S.120 Nevertheless, the Philippines was able to obtain, in civil suits, the seizure and forfeiture of the assets of that former head of state located in the U.S.121 and in Switzerland.122 The same applied to the assets of “Baby Doc” Duvalier, the former head of state of Haiti, whose assets were seized in Switzerland.123 In a more recent case in France, the Cour de Cassation held that the now former head of state of Libya, Muammar Gaddafi, was immune from prosecution in France because he was the incumbent head of state, thus affirming the rule of temporal immunity.124 Similarly, the Spanish Supreme 117   Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. ____ ¶ 100 (July 20). 118   With respect to attacks on civilian aircrafts, more commonly known as falling within the meaning of “terrorism”, these crimes have also since then risen close to their recognition as jus cogens international crimes. M. Cherif Bassiouni, Extraterritorial Jurisdiction: Applications to “Terrorism”, in Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Mirjan Damaška 201 (Jon Jackson, Maximo Langer & Peter Tillers, eds. 2008); M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values & Violence: Intangible Aspects of Terrorism 216 (Wayne McCormack ed., 2008); M. Cherif Bassiouni, An Assessment of International Legal Modalities to Control International Terrorism, 31 Arab J. Legal & Judicial Sciences 17 (2005); M. Cherif Bassiouni, Terrorism: The Persistent Dilemma of Legitimacy, 36 Case W. Res. J. Int’l L. 299 (2004); M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); M. Cherif Bassiouni, International Terrorism, in 1 International Criminal Law 765 (M. Cherif Bassiouni, ed. 1999); M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63–74 (1996). 119   Jimenez v. Aristeguieta, 362 F.2d 547 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963); Bassiouni, International Extradition, supra note 81, at 490–91. 120 See, e.g., Tracie A. Sundack, Note, Republic of Philippines v. Marcos: The Ninth Circuit Allows a Former Ruler to Invoke the Act of State Doctrine Against a Resisting Sovereign, 38 Am. U. L. Rev. 225 (1988). 121 See Republic of the Philippines v. Marcos, 1986 U.S. Dist. LEXIS 23629 (S.D.N.Y. 1986); Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir. 1987) (“Marcos II”), reh’g granted, 832 F.2d 1110 (9th Cir. 1987), 862 F.2d 1355 (9th Cir. 1987) (en banc). 122 See Henzelin, supra note 59, at 189–91. Seizures of the funds of former heads of states in Switzerland between 1997 and 2001, include: President Mobuto Sese Seko of the Congo, Pakistan’s Prime Minister Benazir Bhutto, Indonesia’s General Suharto, Nigeria’s President General Sani Abacha, and Ukranian Prime Minister Pavlo Lazarenko. 123 Id. 124 Affaire Khadafi, Cassation Criminelle, 13 March 2001, at 1414.

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Court refused to exercise jurisdiction over Fidel Castro in a 1999 suit because of his status as a sitting head of state.125 Peru sought the extradition from Japan of its former head of state, Alberto Fujimori, whose trial began December 2007 in Peru, and who was convicted and sentenced in 2009 to a twenty-five year prison term which he is currently serving.126 Bolivia prosecuted its former President, General Luís Garcia Meza and several of his collaborators on criminal charges involving gross human rights violations, including arbitrary arrests and detention, extra-judicial executions and torture.127 Argentina tried nine military commanders who had ruled Argentina between 1976 and 1982.128 Recently, former Egyptian President Hosni Murbarak has been placed on trial in Egypt for prosecution of charges of corruption; the country’s interim military leaders stated that there would be no immunity deal for the former head of state.129 Similarly, former Tunisian President Zine El Abidine Ben Ali was convicted in absentia in 2011 for financial crimes and 2012 for the killing of protestors.130 One additional case that is sui generis is that of General Manuel Noriega, the former head of state of Panama, who was seized by American troops during a military incursion into that state in January 1990. He was militarily removed to the U.S. to face charges for drug trafficking and money laundering.131 The U.S. relied in that case on the tenuous proposition that it had not recognized Manuel Noriega as the official head of state of Panama. He was convicted and sentenced to prison, though the U.S. recognized that he was to be treated as a POW pursuant to the fourth Geneva Convention of 1949.

125 Fidel Castro, Order of 4 March 1999, No. 1999/2723 (Spain). The Spanish Court distinguished its holding in Fidel Castro from its holding in Pinochet, Order of 5 November 1998 (no. 1998/22605) (Spain), as Pinochet was a former head of state and thus no longer entitled to immunity. 126 The Supreme Court of Japan approved on May 29, 2002, Peru’s extradition request. The Ministries of Justice and Foreign Affairs had been expected to approve the request, but did not. See Court Advances Extradition of Fujimori, Chi. Trib., May 31, 2002, at Sec. 1, p. 6. In 2005, Fujimori left Japan for Chile where he was arrested. The Supreme Court of Chile approved Peru’s extradition request September 21, 2007. See Simone Romero, Chileans Order Peru’s Ex-Chief Home For Trial, N.Y. Times, Sep. 22, 2007, at A1. Fujimori arrived in Peru September 22, 2007 and his trial began on December 10, 2007. There have been many other cases in which states have indicted and/or prosecuted former heads of states, including Ethiopia and Iran’s indictments of, respectively, Emperor Haile Selassie in 1974 and King Reza Pahlevi in 1979, Romania’s indictment of former President Ceausescu in 1987, and Pakistan’s indictment of former Prime Minister Benazir Bhutto in 1990. 127 Sentencia pronunciada en los juicios de responsabilidad seguidos por el Ministerio Público y coadyuvantes contra Luis Garíca Meza y sus colaboradores, Bolivia, Supreme Court of Justice, 21 April 1993. 128 Causa originariamente instruida por el Consejo Supremo de las Fuerzas Armadas, Supreme Court of Justice of Argentina, 30 December 1986. 129 Ernesto Londono, Military Council Rules Out Immunity Deal for Mubarak, Wash. Post., May 18, 2011, at A08. 130 United Press International, Former Tunisian president Ben Ali on trial, Jan. 3, 2012. 131 United States v. Noriega, 683 F. Supp. 1373 (S.D. Fla. 1988), motion granted by 746 F. Supp 1541 (S.D. Fla. 1990), aff ’d, 117 F.3d 1206 (11th Cir. 1997).



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A number of individual complaints have also been filed in Belgium (under its universal jurisdiction law referred to above)132 against Cuba’s Fidel Castro, Israel’s Ariel Sharon,133 Palestine’s Yasser Arafat, and Chad’s Hissène Habré.134 The ­Belgian Supreme Court dismissed these cases after Belgium narrowed its universal jurisdiction laws in 2003.135 From January 1990 to May 2011, more than sixty-seven heads of state or government spanning Latin America, Africa, Europe, Asia and the Middle East have been formally charged or indicted with serious criminal offenses involving human rights and corruption for the most part.136 Although “[t]he days when head-of-state immunity was a show-stopper are now long past,”137 it should be noted that only half of the cases went to trial, half of the trials resulted in convictions and half of the convictions resulted in some form of sentence.138 This weak and ambivalent prosecution pattern is tied to the political climate surrounding the prosecutions.139 Thus, increased political resolve among States in the international community to bring human rights violators to justice is necessary if heads of state are to be deterred from further commission of atrocities on the assumption that there is insufficient political will to bring them to task. 4.4. The ICJ’s 2002 Ruling on International Immunities of Certain Persons Belgium relied on its 1993 law, as amended in 1997,140 in seeking the arrest of Abdulaye Yerodia Ndombasi, a former Congolese Minister of Foreign Affairs, for incitation to commit “genocide,” “crimes against humanity,” and “war crimes” against ethnic Tutsi citizens and residents of Rwanda. In response, the Congo brought an action against Belgium to declare that the exercise of such universal jurisdiction by Belgium was in violation of customary international law and the

132 See supra note 89. 133 See Decision of the Court of Appeals of Brussels, Chambre des Mises en Accusation, Pen. 1632/01 (May 15, 2002). As a result of the ICJ’s decision in Congo v. Belgium, supra note 60, and as discussed below in section 4.4, the Belgian Cour de Cassation in its Arrêt of February 12, 2003, P.02.1139.F/1 ruled that Ariel Sharon could not be indicted during his tenure in office. 134 See supra note 85. 135 See Congo v. Belgium, supra note 60. 136 For a breakdown of these prosecutions by region with disposition, see Prosecuting Heads of State 295–304, (Ellen L. Lutz & Catilin Reiger, eds. 2009). 137 Scott Horton, Gimme Shelter, Foreign Pol’y, Feb. 2, 2011, http://www.foreignpolicy.com/ articles/2011/02/02/gimme_shelter?page=full (last visited Oct. 19, 2011). 138 See Prosecuting Heads of State, supra note 136, at 14. 139 Id. at 19, 37. One example of political pressure influencing the pursuit of justice is how Belgium’s expansive legislation permitting its exercise of universal jurisdiction was repealed in 2003 after the United States, facing criminal complaints filed by Iraqi families arising from US’ actions during the first Gulf War, threatened to pull NATO headquarters out of Brussels unless the law was changed. 140 See Congo v. Belgium, supra note 60.

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Vienna Convention on the law of diplomatic immunity.141 On February 14, 2002, the ICJ rendered a decision against Belgium, holding that an incumbent foreign minister benefits from the customary and conventional international law immunity that is afforded diplomats.142 That ruling, however, reaffirmed the principle that there is no substantive immunity for heads of state, diplomats, or other public officials with respect to the commission of certain international crimes.143 Nevertheless, the ICJ found that temporal immunity exists for incumbents who are entitled to international immunities, unless derogation thereto exists under conventional international law as in the case of the ICC’s Article 27.144 As stated above, the distinction between substantive immunity and temporal immunity has been rejected in the ICC Statute, Article 27, thus confirming the historic evolution towards the non-applicability of immunities for persons holding certain official positions with respect to certain international crimes.145 The ICJ’s decision, however, noted that Article 27 of the ICC Statute was a treaty-based derogation to the customary principle of temporal immunity146 for certain public officials, including heads of state, diplomats, and others, such as

141 Id. It should be noted that the acts charged were at a period of time when Yerodia was not Foreign Minister, and at the time of the case, he was no longer Foreign Minister. He was, however, Foreign Minister when the arrest warrant was issued. 142 Id. at 18, para. 51. 143 Id. at 22, para. 61. 144 Id. at 20, para. 54. For an analysis of this case and a critique of the theory of universal jurisdiction, see Marc Henzelin, La Compétence Pénale Universelle: Une Question Non Résolue par l’Arrêt Yerodia, 4 Revue Génerale de Droit International Public 819 (2002); Mark A. Summers, Diplomatic Immunity: Ratione Personae: Did the International Court of Justice Create a New Customary Law Rule in Congo v. Belgium?, 16 Mich. St. J. Int’l L. 459 (2007). 145 However, ICC Statute Article 98 subordinates the ICC’s exercise of jurisdiction to other international obligations under international law with respect to the diplomatic immunity of the state and heads of state, without the prior consent and cooperation of the state waiving such ­immunity. 146 As of May 2012, 121 states have ratified the Rome Statute. It could be inferred that because the number of State Parties has reached more than one-half of the U.N.’s 192 member-states, the development of leadership accountability is a new customary international legal principle that no immunities, substantive or temporal, apply to the crimes within the court’s jurisdiction. See supra note 40. An unresolved issue follows from the fact that Article 27 of the ICC Statute is treaty based, namely that the ICC has indicted Sudanese President Hassan Ahmad Al Bashir and Libya’s leader, Muammar Qadhafi., but neither the Sudan nor Libya are parties to the ICC treaty. Consequently the ICC Statute applies to these cases only because they were referred by the United Nations Security Council to the Court. The question presented is whether the Security Council may refer a situation to the ICC and ask the ICC not to apply customary international law (i.e. not to apply head of state immunity). The only precedents that could be looked to for guidance are the ICTY and ICTR, whose statutes were drafted using customary international law. Article 27 of the ICC statute is an exception to customary international law, and if the Sudan or Libya were to appeal the ICC’s removal of head of state immunity to the ICJ, it is probable that the ICJ would rule, given the precedent set by Congo v. Belgium, that the Security Council may only apply international law. In the face of such a decision, the ICC could not apply Article 27 to the actions of the Sudanese and Libyan leaders to the extent those actions would be precluded from prosecution by head of state immunity.



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heads of government and cabinet members who engage in diplomatic missions abroad.147 4.5. Head of State Immunity under the ICTY/ICTR and ICC The statues of both the ICTY and ICTR reject immunity for heads of states and government officials.148 Accordingly, both the ICTY and ICTR have brought cases against high-level officials believed to be responsible for acts of violence in the respective situations. In 1998, the ICTR undertook the prosecution of Jean Kambanda,149 the former Prime Minister of Rwanda. As a head of state, Kambanda formerly would have been entitled to substantive immunity for his actions, even those constituting war crimes and crimes against humanity. However, the court found not only that Kambanda did not enjoy immunity from prosecution, but that his culpability was increased by virtue of his position. Kambanda’s status as Prime Minister left him in a position to better protect victims of the genocide or to prevent more severe casualties, a fact highlighted by the prosecutor. Kambanda’s indictment read “the Prime Minister is responsible for directing Government activities. The Government determines and controls national policy and has the administration and the armed forces at its disposal. The duties of Ministers as well as the nature and scope of government departments under their authority are determined by the Prime Minister.”150 The indictment charged that Kambanda “failed in his duty to ensure the security of the Rwandan population.”151 Kambanda pled guilty to genocide—the first head of state to do so—and was sentenced to life imprisonment. The ICTY also tackled the idea of head of state immunity in its prosecution of Slobodan Milosevic for crimes against humanity and war crimes, relying on Article 7(2) of the ICTY Statute152 to remove Milosevic’s temporal immunity.153 The trial chamber referred to Article 7(2) as representative of customary international law, calling upon the precedence of the Nuremburg and Tokyo Charters to support this finding.154 At the time of his prosecution, Milosevic was still the President of the Federal Republic of Yugoslavia. Milosevic died during his trial, removing any possibility of a sentence. The ICTY also brought charges against 147 See Congo v. Belgium, supra note 60, at 21, para. 58. 148 ICTY Statute, supra note 36, at art.7(2); ICTR Statute, supra note 37, at art. 6(2). 149 Prosecutor v. Kambanda, supra note 69. 150 Id. 151 Id. at paras. 3.8, 3.17. 152 See ICTY Statute, supra note 36, at art. 7(2). 153 Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Preliminary Motions, ¶ 25 (Nov. 8, 2001). 154 Id. at para. 28.

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the former President of the so-called Republika Srpska, Radovan Karadžić, for genocide, crimes against humanity, and war crimes during the violence in Yugoslavia in the 1990s.155 Karadžić’s trial began October 26, 2009. The trial was interrupted, however, by extended absences of Karadžić, who claimed he had not been given adequate time to prepare for trial. After reviewing Karadžić’s claims, the trial chamber found he was obstructing the progress of the trial and ordered the Registrar to appoint counsel for Karadžić.156 The trial resumed on March 1 and 2, 2010 with the accused making opening statements, and on April 13, 2010, the prosecution resumed presenting evidence.157 As of May 2012, the proceedings are ongoing.158 Overall, the ICTY has indicted 161 individuals,159 and with the arrest of Goran Hadžić, a former leader of Serb separatist forces in Croatia, in July 2011, there are no longer indictees remaining at large.160 Following these examples, the Special Court for Sierra Leone (SCSL) revoked the immunity of Charles Taylor, President of Liberia.161 Taylor claimed that the Special Court did not have jurisdiction to prosecute him because of his status as a head of state.162 The Special Court found four reasons why head of state immunity did not apply to the SCSL: (a) the Special Court is not part of the judiciary of Sierra Leone and is not a national court; (b) the Special Court is established by treaty and has the characteristics associated with classical international organizations . . . (c) the competence and jurisdiction ratione materiae and ratione personae are broadly similar to that of ICTY and the ICTR and the ICC, including in relation to the provisions confirming the absence of entitlement of any person to claim of immunity; (d) accordingly, there is no reason to conclude that the Special Court should be treated as anything other than an international tribunal or court, with all that implies for the question of immunity for a swerving Head of State.163

The Special Court then found no head of state immunity existed in the Special Court, relying on Article 6(2) of its statute. The prosecution opened their case against Taylor on June 4, 2007, but Taylor fired his defense team, suspending the trial until counsel could be reappointed. The prosecution began presenting 155 Prosecutor v. Karadžić, Case No. IT-95-5/18, Amended Indictment (Apr. 28, 2000). 156 ICTY, Case Information Sheet: Radovan Karadžic 5 (http://www.icty.org/x/cases/karadzic/ cis/en/cis_karadzic_en.pdf. 157 See id. 158 See The Cases: Karadžic (IT-95-5/18-I) , ICTY, http://www.icty.org/case/karadzic/4#pressrel (last visited Nov. 5, 2011). 159 Key Figures, ICTY, http://www.icty.org/x/file/Cases/keyfigures/key_figures_110913_en.pdf (last updated Sept. 13, 2011). 160 Serbia Holds Croatia War Crimes Suspect Goran Hadzic, BBC News, July 20, 2011, http://www .bbc.co.uk/news/world-europe-14214573. 161 Prosecutor v. Taylor, Case No. 2003-01-I, Decision on Immunity from Jurisdiction, ¶ 35 (May 31, 2004). 162 Id. 163 Id. at para. 41.



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the testimony from ninety-nine witnesses on January 7, 2008 and the defense opened their case more than a year later on July 13, 2009. In April 2012 the Trial Chamber found Taylor guilty of aiding and abetting crimes in Sierra Leone, but acquitted him of command responsibility and membership in a Joint Criminal Enterprise. 164 As discussed above, the ICC does not recognize immunity for heads of state. Thus, the ICC has investigated and prosecuted several cases involving high-level officials. Notably, the ICC prosecutor presented a case to the pre-trial chamber regarding Sudanese President Omar Hassan Ahmad Al Bashir, the first ever ICC indictment against a sitting head of state. Prosecutor Luis Moreno-Ocampo presented evidence against Al Bashir for genocide, crimes against humanity, and war crimes in the Darfur region of Sudan.165 The Pre-Trial Chamber issued an arrest warrant for Bashir on March 4, 2009 and a second arrest warrant on July 12, 2010, requesting the cooperation of State Parties in his surrender and arrest. Although Bashir has yet to be brought before the Court, his arrest warrant alone sparked a debate in the international legal community over the warrant’s legality. Such questions focus on the interplay between the immunity-stripping Article 27 of the Rome Statute; the effect of Article 98 of the Rome Statute, which calls for the cooperation of States Parties with respect to the waiver of immunity; the role of Security Council referrals to the ICC; and the relationship between States Parties and non-States Parties like Sudan.166 Separately, the ICC is proceeding with a case against several high-level officials of the Kenyan government, including a deputy prime minister, regarding alleged crimes against humanity committed in post-electoral violence from 2007 to 2008. In August 2011, the ICC dismissed an appeal by the Kenyan government to throw out the cases against the officials, instead finding reasonable grounds to believe that the various officials were criminally responsible for murder, forcible transfer, persecution, and other inhumane acts.167 Although the case does 164 See Chapter 8, Section 4 for more information about Taylor and the conviction. 165 Press Release, International Criminal Court, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur, ICC-OTP-20080714-PR341-ENG (July 14, 2008). 166 See, e.g., Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 335 (2009) (arguing that Article 27 of the Rome Statute applies at the national level and that the effect of the Security Council referral in this case is to bind Sudan to the Rome Statute and thus, Article 27’s immunity-stripping provisions as well; additionally finding that the Security Council referral means that Bashir is not immune from the exercise of jurisdiction by nations acting in support of the ICC); Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. 315, 316, 332 (2009) (arguing that although the ICC’s arrest warrant is valid, States Parties do not have an obligation to comply with the ICC’s arrest and surrender request and that any State other than Sudan that enforces the warrant would violate the immunity granted to incumbent heads of state); see also supra note 146. 167 International Criminal Court Case Against Kenyan Officials to Proceed, UN News Centre, Aug. 30, 2011, http://www.un.org/apps/news/story.asp?NewsID=39411&Cr=international&Cr1=court.

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not directly involve the Kenyan president, there is concern that Prosecutor ­Moreno-Ocampo’s evidence alleging that the State House in Nairobi was used as “a command post” for the post-election violence may draw attention to President Kibaki, with “debate raging over the possibility he could be adversely mentioned if the cases proceed to trial.”168 In January 2012 the Pre-Trial Chamber confirmed the charges against four of the six indictees, prominently including the Deputy Prime Minister and former Minister of Finance, the former Head of the Public Service and Secretary to the Cabinet, and the former Minister of Higher Education, Science and Technology.169 Additionally, on February 26, 2011, the U.N. Security Council unanimously decided to refer the situation in Libya to the ICC Prosecutor.170 In his statement opening the investigation into the situation in Libya, Prosecutor Luis MorenoOcampo identified “individuals with formal or de facto authority,” namely former leader Muammar Gaddafi and members of his inner circle who commanded and allegedly committed crimes.171 In the latest developments, the case was assigned to the Pre-Trial Chamber, which found reasonable grounds to believe that Gaddafi, Saif Al-Islam Gaddafi (Libyan de facto Prime Minister), and Abdullah Al-Senussi (Colonel in the Libyan Armed Forces and Head of Military Intelligence) are criminally responsible for crimes against humanity, namely murder and persecution;172 arrest warrants were issued for three men on June 27, 2011.173 168 Emeka-Mayaka Gekara, Why President’s Men are Wary of ICC Case, Daily News (Kenya), Aug. 27, 2011, available at http://www.nation.co.ke/News/politics/Why+Presidents+men+are+ wary+of+ICC+case+/-/1064/1226562/-/item/0/-/15sawj6z/-/index.html (last visited Oct. 19, 2011). 169 Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012).    170 S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 16, 2011). 171 International Criminal Court, Office of the Prosecutor, Statement of the Prosecutor on the Opening of the Investigation into the Situation in Libya (Mar. 3, 2011), available at http://www.icc-cpi.int/NR/rdonlyres/035C3801-5C8D-4ABC-876B-C7D946B51F22/283045/ StatementLibya_03032011.pdf. 172 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-1, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Alsenussi” ( June 27, 2011). 173 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-2, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi ( June 27, 2011); Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-3, Warrant of Arrest for Saif Al-Islam Gaddafi ( June 27, 2011); Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-4, Warrant of Arrest for Abdullah Al-Senussi ( June 27, 2011). Like Sudan, Libya is not a party to the Rome Statute, and thus similar legal questions about immunity may arise regarding the case against Gaddafi. See supra notes 146 and 166. Also like the case against Sudan’s Bashir, the Security Council referred the Libya situation to the ICC. But, notably, while many countries still question the obligation for other states to cooperate with the ICC’s request in the surrender and arrest of Sudan’s Bashir, the ICC Prosecutor did not request states other than Libya to surrender Gaddafi. Thus, the ICC is not



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On October 20, 2011, Gaddafi was killed in a fight with revolutionary fighters; as of May 2012 Saif al-Islam Gaddafi and Al-Senussi are in custody in Libya and Mauritania, respectively.174 4.6. Conclusion Customary international law provides that heads of states and other public officials who are no longer in office cannot benefit from substantive immunities for acts that violate international criminal law, though it is not clear as to which of the 27 categories of international crimes are included in this exception.175 As mentioned above, the present state of customary and conventional international law removes international immunities for certain international crimes, such as crimes against peace, genocide, crimes against humanity, war crimes, and torture. It can also be asserted that customary international law removes the immunity of heads of state for the historic crimes of piracy and slavery, though there are no judicial precedents to support this proposition.176 It is unclear at this point, however, whether other international crimes can, by analogy, be included in this exception to international immunities, such as terrorism-related crimes.177 It is also unclear whether this exception to international immunities applies only to international judicial bodies, or whether it also extends to the national criminal jurisdictions of states other than the state of nationality of the person claiming immunity.178 For instance, it is not clear whether the elimination of substantive immunity includes or excludes temporal immunity before national jurisdictions while such persons are incumbent.179 There are, however, two exceptions to temporal immunities, namely, when such prosecutions are mandated by the Security Council (as evidenced by the law and practice of the ICTY and ICTR) and when they are provided for by treaty, as in the ICC Statute. In summary, the present state of the international immunities regime for heads of state and other officials is:

asking other states to potentially violate any immunities Gaddafi would have under international law. See Dapo Akande, The ICC Prosecutor Requests an Arrest Warrant for Gaddafi: Immunity Issues and Questions about the Start of the Libyan Armed Conflict, EJIL: Talk! (May 23, 2011), http://www .ejiltalk.org/the-icc-prosecutor-requests-an-arrest-warrant-for-gaddafi-immunity-issues-andquestions-about-the-start-of-the-libyan-armed-conflict/ (last visited Oct. 19, 2011). 174 Muammar Gaddafi Killed in Libya, BBC News, Oct. 20, 2011, http://www.bbc.co.uk/news/ world-africa-15389550. 175 For the 27 categories of international crimes, see infra Chapter III. 176 See Bassiouni, Universal Jurisdiction, supra note 75, at 108–15. 177 See 1, 2 International Terrorism: A Compilation of U.N. Documents (M. Cherif Bassiouni ed., 2002) [hereinafter Bassiouni, Terrorism Documents]. 178 See supra section 3.3. 179 See Congo v. Belgium, supra note 60.

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1. No substantive immunity exists for certain international crimes, whether before international or national judicial organs;180 2. No temporal immunity exists for certain international crimes before international judicial organs;181 3. No substantive immunity exists for any crimes before the national judicial organs of the official’s state of nationality unless otherwise specified under national law; 4. Temporal immunity remains for incumbents before national judicial organs other than those of the state of nationality for all international crimes, unless otherwise specified for by treaty.182 Section 5. International Criminal Responsibility of Groups and Organizations 5.1. International Responsibility of Individual Group Members The Charter of the IMT provided a basis for criminal responsibility of groups and organizations.183 Indeed, the IMT held the Leadership Corps of the Nazi Party,184 Gestapo, Sicherheitsdienst (SD),185 Sturmabteilung (SA) and the Schutzstaffel (SS)186 as criminal groups. But the question is not only whether an organization can have a criminal purpose, but whether the organization’s members can be found guilty by virtue of association or membership, or whether something more is required. These and other related questions fall within the province of the general part of criminal law, which has not so far been sufficiently addressed in ICL. Among these questions are the following: Is mere membership in an organization deemed criminal enough or must active participation in a criminal activity be demonstrated? Must a member’s specific knowledge of the criminal purposes of the organization and his/her intent to be part of the criminal scheme

180 Uncertainty remains as to which crimes this exception to the immunities regime applies. 181 See Congo v. Belgium, supra note 60. 182 See, e.g., ICC Statute, supra note 40, at art. 27. 183 In Article 9, the Charter provided that: “the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.” Article 10 of the Charter stated that: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.” 1 Trial of the Major War Criminals, supra note 34, at 20 (emphasis added). 184 Id. at 262. 185 Id. at 268. 186 Id. at 273.



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perpetrated by the organization be demonstrated before he or she can be held criminally responsible as a member of the organization? In its judgment, the IMT explicitly noted that “a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death.”187 To impose international criminal responsibility merely for passive membership in an organization stretches the generally accepted principles of criminal responsibility found in most legal systems. Such a proposition would be tantamount to guilt by association, which most legal systems reject as fundamentally unfair. Indeed, the IMT was aware that imposing criminal responsibility on members of groups or organizations simply by virtue of their membership in such organizations was a “far reaching and novel procedure. Its application, unless properly safeguarded, may produce great injustice.”188 The IMT, in its judgment, went on to observe that Article 9 of the Charter gave the Tribunal discretion to declare an organization criminal and continued as follows: This discretion is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well-settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishments should be avoided. If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of “group criminality” is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to insure that innocent persons will not be punished.189

The IMT then analogized a criminal group or organization to a conspiracy and said that for a criminal organization to exist “there must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter.”190 The IMT specified that a definition of a criminal group or organization “should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts defined as criminal . . . as members of the organization.”191 The IMT implemented the foregoing in its judgment and declared as criminal the group of members of the S.S. “who became or remained members of the organization with knowledge that it was being used for the commission [of crimes] . . . or who were personally implicated as

187 Id. at 256 (emphasis added). 188 Id. 189 Id. at 20 (emphasis added). 190 Id. 191 Id. (emphasis added).

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­ embers of the organization in the commission of such crimes. . . .”192 This theme m was repeated with respect to other groups that the IMT held to be criminal.193 Thus, at the IMT, mere membership was not sufficient to create criminal liability stemming from membership in a criminal group. The IMT required either a commission of a criminal act by the individual member or that the membership was with knowledge that the organization was used for the commission of crimes. This later assertion, however, sidesteps the question of what constitutes a crime under what law. Contemporary ICL would answer that question with the proposition that it refers to jus cogens crimes. Traditionally, it has been easier for common law systems than for others to accommodate themselves to a theory of criminal liability based on membership in a criminal group or organization under the concept of conspiracy. In recent times, however, as a result of the expansion of organized crime groups and drug trafficking, many states have enacted laws that provide for organizational ­criminal responsibility, either under the common law conspiracy model or under hybrid models that combine participation, intent, and some conduct. How far these new approaches to group criminality can form part of ICL is yet to be determined. 5.2. International Criminal Responsibility of Corporations As Legal Persons As early as 1946 the issue of corporate criminal liability has presented itself to the international community.194 The concept of corporate liability for the commission of international crimes by transnational corporations (TNCs), though not a novel concept, is not without its controversies and difficulties. Corporate criminal responsibility can be inferred from various environmental protection treaties and national legislation enacted to implement these treaties.195 As TNCs 192 Id. at 273 (emphasis added). 193 These included the leadership Corps of the Nazi Party, Gestapo, and the SD. Id. at 262, 268. 194 After World War II, IG Farben, a German corporation allied with the Nazi party which was responsible for aiding the Nazis through the provision of materials, including the infamous Zyklon B chemical. Farben faced trial before the Nuremberg Military Tribunal for their actions. Many of those in charge of Farben were sentenced to prison time by the Tribunal for plundering and participation in slave labor. For a detailed analysis of the Farben trial, see Florian Jessberger, On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial, 8 J. Int’l. Crim. Just. 783 (2010). For a discussion of other World War II era cases involving German corporations and businessmen, see Hans Vest, Business Leaders and the Modes of Individual Criminal Responsibility Under International Law, 8 J. Int’l. Crim. Just. 851, 853–54 ( July 2010). 195 These kinds of issues arose in the context of international activity involving ships and the protection of wildlife. See, e.g., the International Convention for the Preservation of Fur Seals in the North Pacific, July 7, 1911, 5 Martens Noveau Recueil (3d) 720, 37 Stat. 1542, T.S. No. 564; International Agreement for the Regulation of Whaling, Sept. 24, 1931, 155 L.N.T.S. 348, 3 Bevans 26, T.S. No. 880; Convention Relative to the Preservation of Fauna and Flora in Their Natural State,



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have grown and developed to be able to wield power similar to that of states, it is becoming increasingly important to develop and implement mechanisms to ensure that their activities conform to the conduct expected of states under various international treaties and conventions.196 This is especially true as many TNCs have been able to dictate the terms of their involvement in nations that were eager to attract foreign investment money and thereby promote domestic development.197 There are several sources that support the proposition that corporate entities must be held responsible for their violations of international law, namely the existing criminal sanctions for violations of environmental protection and suits brought against corporations in part for their environmentally harmful activities, the current trend to subject corporate entities to civil liability for tortuous conduct abroad, and the use of an “aiding and abetting” theory against corporate entities for human rights abuses and bribery of foreign officials. However, no corporation, as a legal person, has been investigated or prosecuted to date by any major international or hybrid tribunal, and indeed these tribunals lack jurisdiction over corporations as legal persons.198 5.3. Corporate Liability for Harm to the Environment Suits have been filed against TNCs in United States courts for environmental harm since the 1990’s.199 Although these suits have not succeeded in holding Nov. 8, 1933, 172 L.N.T.S. 241; International Agreement for the Regulation of Whaling, June 8, 1937, 190 L.N.T.S. 79, 32 U.N.T.S. 404, 52 Stat. 1460, T.S. No. 933; Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, 161 U.N.T.S. 193, 56 Stat. 1354, T.S. No. 981; International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72, T.I.A.S. 1849, 62 Stat.(2) 1716, 4 Bevans 248; the Convention for the Regulation of the Meshes of Fishing Nets and the Size Limits of Fish, Apr. 5, 1946, 231 U.N.T.S. 199; International Convention for the Prevention of the Pollution of the Sea by Oil, May 12, 1954, 327 U.N.T.S. 3, 12 U.S.T. 2989, T.I.A.S. No. 4900; the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, U.K.T.S. 119, reprinted in 11 ILM 262; the Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, 993 U.N.T.S. 243, 27 U.S.T. 1087, T.I.A.S. No. 8243; the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, I.M.C.O. Doc. MP/CONF/WP.35, reprinted in 12 ILM 1319 (1973); Agreement for the Conservation of Polar Bears, Nov. 15, 1973, 27 U.S.T. 3918, T.I.A.S. No. 8409. For further discussion of the various values sought to be protected and purposes behind such environmental protection instruments, see Stephen C. McCaffrey, Criminalization of Environmental Protection, in 1 Bassiouni, ICL, supra note 21, at 1013–35 (2008). 196 See Dennis A. Rodinelli, Sovereignty On Line: the Challenges of Transnational Corporations and Information Technology in Asia, in Sovereignty under challenge: how governments respond, 345–71 (John D. Montgomery and Nathan Glazer, eds., 2002). By the late 1990’s, General Electric’s total sales revenue was greater than the GDPs of ninety-one countries around the world. Id. at 360. 197 Id. at 345–47, 358–61. 198 Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873, 874 (July 2010). 199 See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991) (a claim brought under the ATCA against a U.S. corporation by a British corporation for environmental harm based on

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TNCs liable for environmental harm, one court has noted that “the ATS [Alien Tort Statute] holds great potential to bring justice to certain serious violations of human, civil, and environmental rights in a federal forum.”200 As discussed above, there are numerous international conventions and treaties governing environmental issues from conservation of animals and natural resources to the transportation and disposal of wastes and hazardous materials. There are various international environmental treaties that make corporations liable for even unintentional toxic torts.201 Provisions of domestic law within the United States provide for criminal penalties for certain activities resulting in the pollution of the environment.202 As international actors continue to place emphasis on protection of the environment and enact additional environmental treaties, the “environmental rights” referenced by the Sixth Circuit in Taveras v. Taveras will likely become defined enough for a suit against a TNC to succeed.203 The willingness of the United States and other countries to enact domestic legislation criminalizing certain defined levels of environmental harm or destruction is a signal that States are moving towards holding those responsible for harming the environment liable for their actions. It is the lack of enforcement provisions in many of the environmental rights declarations that makes the prosecution of TNCs for violations of those declarations difficult.204

shipping of hazardous waste to a foreign country without notice or permission); Torres v. Southern Peru Copper, 965 F. Supp. 895 (S.D. Tex. 1995); Jota v. Texaco, 157 F.3d 53 (2d Cir. 1998); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999) (environmental torts brought against FreeportMcMoran Copper & Gold, Inc., a Delaware mining corporation, for its activities in the Pacific Rim); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (claims for environmental abuses resulting from the highly toxic gas leak that killed thousands and injured more than 200,000 people); Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001) (class action suit brought by citizens of Ecuador under the ATCA against Texaco for environmental abuses in connection with oil drilling); Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) (violations of the United Nations Convention on the Law of the Sea); Flores v. S. Peru Copper, 253 F. Supp. 2d 510 (S.D.N.Y. 2002), aff’d 343 F.3d 140 (2d Cir. 2003). These cases were dismissed on various grounds and thus did not succeed in imposing liability on TNCs for the alleged violations. 200 Taveras v. Taveras, 477 F.3d 767 (6th Cir. 2007) (involving a dispute over unlawful withholding of children by one spouse). 201 These treaties are discussed in Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp. 2d 289, 317 (S.D.N.Y. 2003). 202 Clean Water Act, 33 U.S.C. § 1319(c) (providing criminal penalties for violations of the Clean Water Act). 203 The United Nations Conference on Environment and Development in 1992, recognizing the need to bring the state of the law in line with contemporary environmental issues, called on states to enact local legislation in concert with business and industry. In 1999, United Nations Secretary General Kofi Anan called on corporations to join the “Global Compact,” which was an attempt to promote corporate self regulation towards the promotion of environmentally conscious and friendly policies. However, the “Global Compact” is not a legally enforceable document. See Luis Enrique Cuervo, The Alien Tort Statute, Corporate Accountability, and the New Lex Petrolea, 19 Tul. Envtl. L. J. 151, 203–04, 207–08 (2006). 204 Lorelle Londis, Comment: the Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New Understanding of Global Interdependence, 57 Me. L. Rev. 141, 208 (2005).



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5.4. Liability of TNCs for Their Conduct Abroad: “Aiding and Abetting” As Applied to TNCs Corporations have been sued for human rights violations before United States federal courts pursuant to the Alien Tort Claims Act and the Torture Victims Protection Act. The Alien Tort Claims Act has been in existence since 1798, but was only used by citizens of foreign states to bring United States TNC activities before United States courts since the 1980’s.205 It was the decision in Filartiga v. PenaIrala wherein United States courts asserted jurisdiction over torts in violation of the law of nations committed against aliens.206 The subsequent decision in Kadic v. Karadzic established individual liability under the Alien Tort Claims Act when TNCs’ conduct was under color of state.207 The first case to issue a verdict against a corporation under the Alien Tort Claims Act was Romero v. Drummond Co., in which the court found a corporation guilty of aiding and abetting a state actor, violating human rights.208 Since then, there have been many cases before United States Federal Courts considering the issue of corporate liability for aiding and abetting in human rights violations. The Second Circuit, which had been at the forefront of allowing Plaintiffs to pursue Alien Tort Claims Act claims, has rejected the application of domestic concepts of corporate liability in regards to Alien Tort Claims Act actions, and has shifted to analyzing corporate liability on the basis of international law principles.209 This interpretation regarding the determination of potential actors who may be held liable under the Alien Tort Claims Act appears to be an attempt by some courts to limit the number of Alien Tort Claims Act cases in the federal courts as part of the “vigilant doorkeeping” suggested by the Supreme Court in Sosa v. Alvarez-Machain.210 However, the Supreme Court in Sosa indicated that international law was to govern the determination of the types of torts for which the Alien Tort Claims Act can be used as a jurisdictional mechanism, and left open the question of whether international 205 For a discussion of the history of the Alien Tort Claims Act from 1798 to the seminal Filartiga decision, see generally Katherine Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 J. Int’l Crim. Just. 745 (2010); Eric Engle, Frontiers in International Human Rights Law: Article: The Alien Tort Statute and the Torture Victims’ Protection Act: Jurisdictional Foundations and Procedural Obstacles, 14 Willamette J. Int’l L. & Dispute Res. 1 (2006). 206 Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008). 207 Kadic v. Karadzic, 70 F.3d 232, 237 (2d Cir. 1995). 208 Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) (upholding the district court’s exclusion of evidence). The original jury rejected Plaintiff ’s claims in Romero. Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 Fordham L. Rev. 2177 (2008). 209 Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 Fordham L. Rev. 2859, 2862 (2011). 210 Sosa v. Alvarez-Machain, 542 U.S. 692,724 (2004).

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law should similarly apply to the determination of the scope of liability of the actor involved.211 The Second Circuit shift effectively prevents corporations from being sued under the Alien Tort Claims Act, because hard international law relative to corporate entities remains in development with little legally enforceable regulation of corporate actors, and there is no international tribunal that has yet imposed liability on a corporation.212 Although the Second Circuit’s reasoning in cases like Kiobel persuaded other jurisdictions to dismiss actions brought against corporations under the Alien Tort Claims Act, as of October 2011, U.S. Circuit Courts ultimately remain split as to whether corporations may be sued as a legal person under the Alien Tort Claims Act.213 At present the issue is being addressed by the U.S. Supreme Court which will issue a final, binding decision on corporate, criminal responsibility. Arguments were heard by the Supreme Court in February 2012. Shortly thereafter the Court requested additional briefs and a reargument in October 2012 to address whether U.S. Courts have extraterritorial jurisdiction to hear cases of human rights violations committed outside, whether by individuals or corporations.214 Whereas United States courts have found corporations only civilly liable, Dutch courts have found businessmen criminally liable for their complicity in human rights atrocities. In 2007, Frans van Anraat was found guilty of supplying Saddam Hussein with chemicals used to produce weapons subsequently used against Kurds; his conviction was upheld in 2009.215 In 2006, Guus Kouwenhoven was convicted for illegally supplying arms to Charles Taylor.216 One problem

211 Theophila, supra note 209, at 2874 (discussing Sosa). 212 The Second Circuit in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 131–45 (2d Cir. 2010) conducted a review of cases, treaties and submissions of publicists in reaching the conclusion that there is no customary international norm of imposing liability on corporations. On October 17, 2011, the U.S. Supreme Court granted the plaintiff ’s petition for a writ of certiorari. 213 Viera v. Eli Lilly & Co., 2010 WL 3893791 (S.D. Ind. 2010); Flomo v. Firestone Natural Rubber Co., 744 F.Supp. 2d 810 (S.D. Ind. 2010); Estate of Ahuva Amergi, Amergi v. The Palestine Authority, 611 F.3d 1350 (11th Cir. 2010) (dismissing suit against Palestine Authority and PLO in case of Israeli citizens’ murder while driving within the Gaza strip because murders committed by private actors during isolated armed skirmishes failed to give rise to the Alien Tort Claims Act’s international jurisdiction); cf. Flomo v. Firestone, 643 F.3d 1013 (7th Cir. 2011) (holding that corporate liability is possible under the Alien Tort Claims Act); Doe v. Exxon Mobile Corp., No. 09-7125 (D.C. Cir. July 8, 2011) (holding that companies are proper defendants under the Alien Tort Claims Act, expressly disagreeing with the Second Circuit’s decision in Kiobel). 214 Adam Liptak, Supreme Court Seeks Clarification on Jurisdiction in a Human Rights Case, N.Y. Times, Mar. 6 2012. See also Brief of Amici Curiae International Law Scholars in Support of Petitioners, available at: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1491_petitioner_amcu_law_scholars.authcheckdam.pdf. 215 Prosecutor v. Frans van Anraat, Case No. AX6406, District Court of the Hague (December 23, 2005), Case No. BA6734, Court of Appeal of the Hague (May 9, 2007), Case No. BG4822, Dutch Supreme Court (June 30, 2009). 216 Prosecutor v. Guus Kouwenhoven, Case No. AY5160, District Court of the Hague (June 7, 2006). This Dutch case is discussed in Wim Huisman & Elies van Sliedregt, Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity, 8 J. Int’l Crim. Just. 803 (July 2010).



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posed by these prosecutions, and more so by the prosecution involving the sale of chemicals, is the dual purpose problem encountered in determining whether prosecution is appropriate where the good at issue was capable of normal commercial use but instead was applied to a criminal activity.217 The mere fact that a good can be turned to a criminal purpose cannot be sufficient to justify investigation or prosecution of a corporation which supplied the good. In the van Anraat case, the Dutch court reasoned the amount of chemicals supplied was too great to be used for legitimate ends in the destination country, reasoning that the businessman had to have known that some of it would end up used by the military.218 In neither case did the Dutch prosecutor seek to prosecute the corporation as a legal entity, though the prosecutor was not barred from doing so by any provision of law.219 Another problem posed in aiding and abetting is determining the proper mens rea.220 While the deterrent effect of the prosecution of individuals on corporations who may commit crimes is questionable, the prosecution of corporations can serve meritorious goals such as promoting consistency within the legal system, ensuring crimes are punished (if the corporation is the only possible culprit, it should be prosecuted for this motive), preserving a notion of equality before the law, enabling accountability for cumulative criminal activity of different corporate managers or officers over a long period of time and incentivizing shareholders to take care in who they place in positions of authority within a corporation.221 Corporations have also been the subject of litigation involving bribery of foreign officials. Since at least the eighteenth century, United States courts have viewed bribery generally as a violation of both the common law of the United States and the law of nations.222 Both the United States domestically, through the Foreign Corrupt Practices Act of 1977, and the international community more broadly through the enactment of various treaties and conventions dealing with bribery, have recognized bribery as a serious problem particularly in regards to

217 Id. at 826–28. 218 Prosecutor v. Frans van Anraat, Case No. AX6406, District Court of the Hague (December 23, 2005), Case No. BA6734, Court of Appeal of the Hague (May 9, 2007). 219 Huisman & van Sliedregt, supra note 216, at 826. 220 For a thorough discussion of this issue, see Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873, 882–93 (2010). 221 Various studies indicate that damage to corporate reputation peaks at certain times of the investigation and prosecution, and that individual shareholders only take action when their direct interests in the corporation are affected, such as accounting irregularities. See Huisman & van Sliedregt, supra note 216, at 824–26. For the other policy goals served by prosecuting corporations, see Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law, 8 J. Int’l Crim. Just. 909, 913–14 (2010). 222 Matt A. Vega, Balancing Judicial Cognizance and Caution: Whether Transnational Corporations are Liable for Foreign Bribery Under the Alien Tort Statute, 31 Mich. J. Int’l L. 385, 402 (2010).

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its impact on developing countries.223 Foreign bribery suits have been considered by United States Federal Courts since the 1970’s, and plaintiffs have been allowed to pursue a theory of foreign bribery under the Alien Tort Claims Act as aiding and abetting, based in large part on the international conventions on the subject establishing the prohibition of bribery as customary international law.224 Section 6. International Criminal Responsibility of States Among the 27 categories of international crimes, some are the product of “stateaction” or the result of a “state-favoring policy”, in other words commission, or as a result of a lack of state enforcement that ranges from permissiveness to purposeful omission. Other violations occur in contravention of state policy and state enforcement efforts. In all cases, individuals commit crimes. What is called “state action” and “state-favoring policy” does not alter the fact that one or more individual authors are involved. The characterizations of “state action” and “state-favoring policy” refer to collective decision-making and actions by individuals who develop a policy or who execute a policy or carry out acts that constitute international crimes under color of legal authority. Decision-makers are usually few in comparison to the entire apparatus of government, let alone to the entire population of a state. In some cases, such as dictatorships, a single person assumes the prerogative of making decisions on behalf of the entire state. In those cases, the traditional criminal law approach of individual responsibility suffices for such a leader. But in cases involving a larger number of participants in the decision-making process, such as cabinet members or members of a ruling party, the question of individual criminal responsibility for each member of the responsible group becomes more difficult to establish, though it remains within the traditional conceptual domain of individual responsibility as recognized by most legal systems. The question, however, of when a given conduct transcends the one or the few or the group of decision-makers to become collectively ascribable to the entire state, and by implication to be borne by all its citizens irrespective of whether they participated, shared, or even agreed in the decision or commission of the 223 Id. at 405–07. The Inter-American Convention Against Corruption, passed in 1996, was the first multilateral convention against bribery, and since then, there have been numerous anticorruption conventions passed in the European Union, Asia, Africa, by the World Bank, and, most recently, the United Nations Convention Against Corruption in 2003. 224 The first case involving foreign bribery was IIT v. Vencamp, 519 F.2d 1001 (2d Cir. 1975). A more recent division from the Second Circuit, Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007), cert. denied, Am. Isuzu Motors v. Ntsebeza, 128 S. Ct. 2424 (2008), allowed a claim to proceed based on bribery as a violation of international law for which a claim under the Alien Tort Claims Act may proceed. Matt A. Vega, supra note 222, at 429–33, 444 (2010).



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violative conduct, has never received an answer in ICL and certainly presents its share of legal problems. The basis of responsibility in these cases is essentially predicated on two assumptions: (1) the people in that state should have and could have prevented the violation and (2) that attribution of responsibility to a state will operate as a deterrent for decision-makers and as an inducement for citizens of a state to do whatever is necessary to prevent violations of ICL.225 Both assumptions are not without flaws, but they also have some merit. The invocation of state responsibility may serve as a means to obtain compensatory and punitive damages, and this may deter future violations of ICL in addition to compensating victims. But the finding of criminal liability is unnecessary for the imposition of damages given that the law of state responsibility already provides for compensatory and punitive damages and the finding of civil liability is easier to obtain than the finding of criminal responsibility. The invocation of the concept of state responsibility is, however, a symbolic act by the international community to stigmatize regimes that engage in internationally proscribed policies and conduct, irrespective of the efficacy of the stigmatization in altering the internationally proscribed behavior. No evidence exists that such an approach deters other regimes from similar or other transgressions. In lieu of the difficult assessment of prevention, the assumption is that deterrence is logically valid even though its effect remains questionable. A contrary argument is that attribution of criminal responsibility to a state ignores a fundamental principle of criminal justice and its corollary that criminal sanctions should apply only to those who share in the responsibility by conspiring, planning, carrying out, aiding and abetting, or committing the proscribed conduct. It violates this principle of justice because the criminal sanctions will fall upon innocent or potentially innocent persons, or at the least persons whose individual criminal responsibility has not been established under law. However, no provision exists in any of the 281 conventions analyzed below, which cover 27 categories of crimes, that expressly establishes a basis for a state’s criminal responsibility.226 The ten penal characteristics identified below are also entirely related to individual criminal responsibility and not to state penal responsibility.227 There is no convention in force that provides for state

225 That is presumably the rationale for the imposition of sanctions by the Security Council on states. Such sanctions have been imposed recently on Iraq and Libya, and earlier on Rhodesia (Zimbabwe) and South Africa. But the merits and wisdom of such an approach has been criticized, though it appears to have produced the intended results in Rhodesia (Zimbabwe) and South Africa where the offending regimes were transformed and a new legal order was established. For the U.N.’s Security Council resolutions on sanctions related to terrorism, see Bassiouni, Terrorism Documents, supra note 177, at 13–24. 226 See infra Chapter III. 227  See supra section 3.

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penal responsibility. Thus state responsibility must be found in other sources of international law.228 The ILC, as stated above, has contemplated since 1976 the recognition of state criminal responsibility, but in its approved text of 2001, it abandoned that position. For many years, state criminal responsibility for international crimes was included in draft Article 19 (“International Crimes and International Delicts”), which stated the following: 1. An Act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. 2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime. 3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere of the seas. 4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2, constitutes an international delict.229

The ILC’s formulation quoted above is an attempt to extend the notion of civil responsibility to the ambit of criminal responsibility. The temptation to extend the civil law concerning tortious conduct to the criminal sphere is easy to understand, particularly at a time when civil responsibility has extended to unintentional wrongs and to liability without fault in certain areas involving a high risk of danger. The policies of prevention, deterrence, and punishment of civil and 228 Considering that there are no conventions that at present provide for, let alone establish, a basis for state criminal responsibility, the only relevant source is customary international law. Under that source, it would appear that principles of state responsibility are well established, but that, so far, they do not include state criminal responsibility. 229 See Report of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, U.N. Doc. A/56/10 and Corr. 1 (2001); see also Draft Articles on State Responsibility, art. 19, in Report of the International Law Commission to the General Assembly, U.N. Doc. 1/31/10 (1976) II (Pt. 2), T.B. I.L.C., 95–122. For an insightful analysis of the ICTY’s confusion concerning principles of state responsibility and attribution of acts to individuals, see André de Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, The Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 Brit. Y.B. Int’l L. 255 (2002).



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criminal responsibility are on the same legal continuum and make the extension of responsibility from the civil to the criminal appear to be easy. But such an extrapolation is nevertheless a difficult one. The conceptual, doctrinal, and dogmatic differences between civil and criminal responsibility are far too great in the world’s major criminal justice systems to be reconciled in the way that the ILC’s draft suggests.230 In addition to these threshold difficulties, the most significant hurdles to defining state criminal responsibility are the principles of legality discussed below. The concept of state criminal responsibility raises, inter alia, the following sets of questions that have not yet been sufficiently addressed by ICL scholars and experts: 1. Can state criminal responsibility be established without establishing the individual criminal responsibility of decision-makers and principal executors? 2. If the individual criminal responsibility of decision-makers and principal executors is required, (i) what elements of criminal responsibility are applicable to such individuals, and (ii) is state criminal responsibility a consequence of individual criminal responsibility or is it something separate and apart from it? 3. Whenever state criminal responsibility is established, can it serve as the basis for establishing the individual criminal responsibility of persons other than decision-makers and principal executors, and in that case (i) what are the elements of this derivative individual criminal responsibility, and (ii) in what way does this derivative criminal responsibility arise? 4. How can state criminal responsibility exist without becoming a form of collective criminal responsibility that would violate fundamental principles of individual justice? 5. Can penalties for state criminal responsibility be developed that would not penalize individuals who had no part in the conduct for which criminal responsibility is to be imposed?

Proponents of the concept of state criminal responsibility have not dealt with these questions and others related to them in more than a superficial manner, let alone resolved them. This is understandable because most of these proponents are publicists and cannot be expected to have expertise in comparative criminal doctrine, while criminal law experts who have opposed such a concept have largely ignored the question. The writings of publicists have criticized the concept of state criminal responsibility as articulated in the ILC’s now defunct draft Article 19.231 The concept, 230 For a different perspective suggesting that the recent developments in civil jurisdiction may bear on the development of criminal jurisdiction, see Hazel Fox QC, The Law of State Immunity 508–16 (2002). 231 See generally Farhad Malekian, International Criminal Responsibility of States (1985); André de Hoogh, Obligatio Erga Omnes and International Crimes (1996); International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (J. Weiler et al. eds., 1988); Pierre-Marie Dupuny, Observations sur le Crime International

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however, reflects the growing expectations of the legal community to establish a more effective basis for state responsibility.232 As a result, in its approved report of 2001, the ILC abandoned draft Article 19. The ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind233 avoided the thorny problem of state responsibility. In its Article 4, entitled “Responsibility of States,” the Draft Code merely states, “[t]he fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law.”234 This of course raises a question about the consistency of the ILC’s work, when one text purports to establish state criminal responsibility and another foregoes it. The conclusion has to be that the ILC’s Draft Code of Crimes rejected state criminal responsibility, but that for whatever its reasons may be, the ILC has elected to leave the concept in the Draft Articles of State Responsibility, which is a text that has not yet been adopted by the General Assembly. This dichotomous approach may, however, have some wisdom. The Draft Code of Crimes has been in gestation with the ILC since 1947, and after its 1991 version was highly criticized, the 1996 text was more streamlined and less controversial; this may be the reason why state criminal responsibility in that text has been sidestepped. But preserving the concept of state criminal responsibility in the Principles of State Responsibility is indeed prudent. What the ILC needs, however, is expertise on ICL and comparative

de l’Etat, 84 Revue Génèrale de Droit International Public 449 (1980); Geoffrey Gilbert, The Criminal Responsibility of States, 39 Int. & Comp. L.Q. 345 (1990); M. Cherif Bassiouni, The Subjects of International Criminal Law: Ratione Personae, in 1 Bassiouni, ICL, supra note 21, at 41; Antonio Cassese, On the Use of Criminal Law Notions in Determining State Responsibility for Genocide, 5 J. Int’l Crim. Just. 875 (2007); Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty, 18 Eur. J. Int’l L. 903 (2007). 232 The recognition of an international community expectation is now well established, even though the exact parameters of a world order are yet to be agreed upon. For an earlier position, see Myres McDougal et al., Law and Minimum World Public Order (1961). 233 For a perspective from the academic academy, see M. Cherif Bassiouni, Nuremberg Forty Years After: An Introduction, 18 Case W. Res. J. Int’l L. 261 (1986); M. Cherif Bassiouni, Das “Vermächtnis von Nürnberg:” eine historische Bewertung fünfzig Jahre danach, in Strafgerichte gegen Menschheitsverbrechen: Zum Völkerstrafrecht 50 Jahre nach den Nürenberger Prozessen, (Ger Hankel & Gerhard Stuby eds., 1995); M. Cherif Bassiouni, The “Nuremberg Legacy:” Historical Assessment Fifty Years Later, in War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1998). For recent U.N. developments, see International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind (1996), available at http://untreaty .un.org/ilc/texts/instruments/english/draft%20articles/7_4_1996.pdf. The Draft Code of Crimes was adopted by the General Assembly in 1996 without modifications. See also ICTR Statute, supra note 37; ICTY Statute, supra note 36; Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 50th Sess., U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995); 1996 PrepCom Report, supra note 39; M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of International Criminal Tribunal for the Former Yugoslavia (1996). 234 Id.



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criminal law doctrine to prepare a draft text that will avoid much of the criticism that the former formulation of the defunct Article 19 justifies. In the Statute of the ICC, the concept of state criminal responsibility has been rejected, even though some delegations expressed a different viewpoint in the 1996 Report as follows: “The view was also expressed that an essential question which should be addressed in the Statute [of the ICC] was whether some kind of safeguard provision was needed to ensure that individual criminal responsibility did not absolve the State of any of its responsibility in a given case.”235 Some scholars have analyzed the reasons for hesitancy to extend the restrictive theory of liability in international law in civil proceedings to criminal proceedings. One concern relates to the fundamental function of international law in maintaining equality and non-intervention into a state’s sovereign domain.236 International law does not allow one state to legislate conduct of another, and the exercise of one state’s penal code to the activities of another state, such activity would effectively “extend the legislative jurisdiction of the territorial State on public law matters to the foreign State” making the states thus unequal (the exercise of criminal jurisdiction presupposes the power to do impose a set of standards over another).237 Section 7. State Immunity: A Bar to Civil Remedies for Jus Cogens International Crimes The doctrine of state immunity was upheld by the ICJ in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) with respect to individual remedies sought by Italian POW who were the victims of slave labor in Nazi Germany, and Greek victims of a massacre in Distomo, Greece.238 The case arose out of several successful tort actions by Italian and Greek victims of Nazi atrocities before domestic Italian courts.239 The underlying acts were not in ­dispute, as Germany accepted responsibility for the atrocities, in particular the use of slave labor. However, Germany challenged the Italian rulings before the ICJ, arguing that sovereign immunity shielded it from civil actions before the courts of other states. 235 See 1996 PrepCom Report, supra 39, at 44, para. 192. 236 Fox QC, supra note 230, at 503–16. 237 Id. at 505. 238 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1 (Feb. 3, 2012). 239 The Greek claims arose out of a separate incident in Greece which was successfully litigated before that country’s courts. However, the Minister of Justice refused to enforce the damages awarded and the Greek plaintiffs brought the matter before Italian courts, seeking enforcement of the judgment there, resulting in the transfer of German property in Italy to the Greek plaintiffs.

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After the conclusion of the war, in 1947, Italy signed a peace treaty with the victorious allies which included a provision that “Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945.”240 Subsequent bilateral agreements were reached between the two countries in which Italy indemnified Germany for all suits arising out of the Second World War in exchange for a lump sum payment to the Italian government.241 In 1953, Germany adopted the Bundesentschädigungsgesetz, a national law establishing a compensation system for victims of crimes committed by the Nazi regime.242 An additional law was adopted in 2000 to provide compensation specifically for the victims of slave labor.243 The 1953 and 2000 German laws applied to civilian victims only; neither provided a remedy for POWs who had been used as slave labor, and POWs were explicitly excluded from the reparations scheme under a separate 2000 law,244 which was upheld by the German Constitutional Court despite its disparate effect.245 Furthermore, compensation for Italian POWs was not included in the 1947 Peace Treaty and was excluded from the subsequent agreements which terminated all Italian claims against Germany. The Italian POWs who had been forced into slave labor were not, however, considered “civilians” for the purposes of compensation despite the fact that they had been deprived of POW protections arising under IHL by the Nazis. Despite this Germany argued, and the ICJ accepted, that the Italian soldiers never lost their POW status and could therefore lawfully be put to some form of work even though the Nazi government had denied them the full protections that this status required.246 Thus, Italian POWs became a category of victims without a remedy under German Law. Unable to file a claim in German courts due to the 2000 law excluding POWs from restitution claims, the Italian plaintiffs brought a domestic action in Italy.247 Germany brought the matter before the ICJ on the grounds of state immunity, arguing that state and judicial practice, as well as practical concerns militated against the right of national courts to hear international tort claims against a

240 Treaty of Peace with Italy. Signed at Paris, on 10 February 1947, art. 77(4), Feb. 10, 1947, 49 UNTS 3. 241 Jurisdictional Immunities Of The State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶24 (Feb. 3, 2012). 242 Bundesentschädigungsgesetz (BGBl. I S. 1387) (Ger.). 243 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶26 (Feb. 3, 2012). 244 2000 Federal Law (14/3206) (Ger.), art. 11. 245 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶26 (Feb. 3, 2012). 246 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 26 and 29 (Feb. 3, 2012). 247 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 28–29 (Feb. 3, 2012).



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foreign state. In response, Italy argued that the victims had been excluded from all compensation schemes and had no other recourse to remedy their denial of justice for a jus cogens violation of international law. In effect, Italy argued that by necessity and by reason of the fact that the claimants (whether Italian or Greek) were present in Italy, Italian courts could exercise their national jurisdiction over these claims. The ICJ ruled in favor of Germany,248 holding that the doctrine of state immunity prevailed over other considerations, even barring compensation for jus cogens crimes such as slave labor.249 Under the Court’s ruling the Italian POWs were also deprived of a remedy under international law since state immunity barred any civil action against Germany in the courts of another state. The ICJ’s judgment reinforced the principle that state immunity is a state right deriving from the co-equal nature of state sovereignty,250 and as such a firm and wellentrenched doctrine of customary international law.251 The ICJ held that no exception existed to state immunity, and thus in an elegant way it said too bad for the victims. In doing so, the Court disregarded the obligation of Germany to provide for a remedy under the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,252 which it did not even address or cite in its decision.253 This omission raises questions about the position of the ICJ on the progressive development of international law in connection with ICL, IHL and IHRL. Section 8. The Victim As a Subject of ICL 8.1. The Evolution of the Individual Victim’s Rights in International Law From the peace at Westphalia in 1648 until World War II, the state was the only subject of international law. The individual’s gradual and limited recognition as a subject of international law highlights the state-centric nature of this body of law. For example, the law of diplomatic protection permits a state to present a 248 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 101–03 (Feb. 3, 2012). 249 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 92–101 (Feb. 3, 2012). 250 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶56 (Feb. 3, 2012). 251 Jurisdictional Immunities of the State (Germany V. Italy: Greece Intervening), 2012 I.C.J. 1, ¶¶ 57–60, 65, 69, 89–91 (Feb. 3, 2012). 252 G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (March 21, 2006). 253 M. Cherif Bassiouni, International Recognition of Victims’ Rights, in 6 Hum. Rts. L. Rev. 203–279 (2006).

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claim on behalf of its citizens when they are injured by another state. This law is predicated on the notion that the direct injury to a state’s citizens is an indirect injury to the state itself.254 As de Vattel stated in his oft-quoted passage from Les Droits des Gens, “Quiconque maltraite un citoyen offense indirectement l’état qui doit protéger ce citoyen.”255 Indeed, a state, which presents a claim against another state for injuries to its citizens does so purely on a discretionary basis and is under no obligation to pass on the award it may receive to the injured party, though state practice since World War II has been to the contrary, thus establishing an international custom.256 International law’s concern for the protection of the individual is in part a result of legal developments that occurred in the wake of the atrocities of World War II and the international community’s pursuit of individual criminal responsibility.257 Once international law made individuals subjects of that discipline for purposes of international criminal responsibility, it followed that the individual became the subject of international legal rights. This chronology explains, in part, the beginning of international human rights law after the World War II Nuremberg and Tokyo international prosecutions.258 Until World War II, the rights and obligations of the individual vis-à-vis the state were the exclusive prerogative of municipal law, and a state was more or less free to treat its own citizens as it pleased.259 Since then, however, numerous international instruments have established protections and rights for individuals, which required states to enact domestic legislation to protect these rights.260 The international community’s enunciation of internationally protected individual rights was accompanied by parallel efforts to ensure the protection of these rights through a variety of international enforcement mechanisms.261 Indeed, many instruments on the protection of human rights have created 254 See Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992) [hereinafter Oppenheim]. 255 Translated as “Whoever mistreats a citizen offends the citizen’s state which must protect this citizen.” Emmerich de Vattel, Le Droit des gens, ou principles de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains 289 (1773). 256 See Bassiouni, From Versailles to Rwanda, supra note 32. 257 See Oppenheim, supra note 254. 258 See IMT Charter, supra note 66; IMTFE Charter, supra note 66. 259 See Oppenheim, supra note 254. 260 See e.g., International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), art. 2.3 [hereinafter ICCPR]; Universal Declaration of Human Rights, art.11(2), Dec. 10, 1948, GA Res. 217 A (III), U.N. Doc. A/810 (1948); European Convention on Human Rights, art. 7(1), Nov. 4, 1950, EUR. TS. Nos. 5, 213 U.N.T.S. 221 [hereinafter ECHR]; African Charter on Human and Peoples’ Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3/ Rev. 5 (1981), reprinted in 21 I.L.M. 58 (1982) [hereinafter Banjul Charter]; American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. A/16 [hereinafter AMCHR]. 261 For a discussion of these enforcement mechanisms see Chante Lasco, Repairing the Irreparable: Current and Future Approaches to Reparations, 10 Hum. Rts. Brief 18–21 (2003); see also Raquel



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special monitoring bodies as well as procedures to receive complaints of violations of individual rights and to investigate or adjudicate them, or at least to report on such violations.262 But all of these mechanisms have proven insufficient to achieve the desired protection of human rights, as evidenced by the large-scale victimization that has occurred in the last fifty years.263 Thus, an individual victim’s right of redress in its various modalities has become an indispensable component of efforts to protect individual human rights. A significant gap, however, continues to exist between international human rights law and international criminal law.264 It seems as if the former is a shield without a sword and the latter, a sword without a shield. The parallelism of these two bodies of law limits the reach of international criminal law to punish fundamental human rights violations, while these rights remain without effective enforcement.265 8.2. The Normative Framework of a Victim’s Right to Reparation The post WW-II paradigm shift which brought about the recognition of the individual as a subject of legal obligations and legal rights under international law did not at first take into account the direct rights and interests of victims. The prescriptions and proscriptions contained in ICL and IHRL whose value oriented goals include the prevention of human harm and the protection of fundamental human values as well as human rights and interests, failed to include the specific rights of victims as part of both disciplines. It was not until 1984 that the United Nations looked at the rights of victims and thereafter it took until 2004 for the general assembly to adopt a resolution containing the basic principles and rights of victims of violations of IHL and IHRL. The Declaration contains both substantive and procedural rights. Prior to that in 1998 the Rome Statute of the ICC gave victims a limited procedural right in the course of the ICC’s proceedings. The importance of the subject as well as the newer dimensions it brings to ICL and IHRL are reflected below.

Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State Sponsored Crimes, 35 Vand. J. Transnat’l. L. 1399 (2002). 262 Such monitoring bodies include the Inter-American Commission on Human Rights (established pursuant to the AMCHR, supra note 260), The European Commission on Human Rights (established pursuant to the ECHR, supra note 260) (in 1998, Protocol 11 amended the ECHR, effectively dismantling the European Commission), the African Commission on Human and Peoples’ Rights (established pursuant to the Banjul Charter, supra note 260). 263 According to a study performed by this author, since World War II there have been over 250 conflicts in which an estimated 170 million people have been killed. See M. Cherif Bassiouni, The Need for International Accountability, in 3 Bassiouni, ICL, supra note 38, at 3. 264 See M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the International Protection of Human Rights, 9 Yale J. World Pub. Ord. 193 (1982). 265 Id.

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8.2.1. The Evolution and Foundation of the Normative Framework for a Victim’s Right of Reparation The Hague Conventions of 1899266 and 1907267 were the first international instruments codifying the customary law of armed conflicts. Under these conventions, violations by a state engaged in an international armed conflict that resulted in physical harm or damage to civilians and to civilian property, as well as harm to combatants protected by these customary norms, resulted in the right of the state of nationality to request compensation on behalf of its citizens.268 While this recognition gave rise to damages based on the injuries of individuals, it did not, however, give rise to an individual right of legal action against a state. In keeping with the law of diplomatic protection, it merely allowed the state of nationality or the territorial state in which the violations of these norms occurred to present a claim against the state which committed these violations.269 Since World War II, individuals’ human rights have been codified in numerous international instruments such as the Universal Declaration of Human Rights,270 the International Covenant on Civil and Political Rights,271 the International Covenant on the Elimination of All forms of Racial Discrimination,272 the Convention against Torture and Other Forms of Cruel Inhuman and Degrading Treatment,273 and the Convention on the Rights of the Child.274 Moreover, several regional conventions have also codified these human rights. The principal ones are: the African Charter of Human and Peoples’ Rights,275 the American Convention on Human Rights,276 and the European Convention for the Protection of Human

266 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague (July 29, 1899) [hereinafter Hague II]. 267 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague (October 18, 1907) [hereinafter Hague IV]. 268 See e.g., Hague IV, supra note 267, at art. 3. 269 See Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5, 1970). 270 Universal Declaration, supra note 260. 271 ICCPR, supra note 260. 272 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, 3 I.L.M. 352 (March 7, 1966). 273 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984) [hereinafter Torture Convention]. 274 Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/44/49 (Nov. 20, 1989). The Convention on the Rights of the Child entered into force on September 2, 1990. As of October 2011, 194 countries have Ratified the Convention, including every member of the UN except Somalia and the US. Ratified by 140 of these countries are two Optional Protocols which were adopted in May 25, 2000 to restrict the involvement of children in military conflicts and prohibit of the sale of children, child prostitution, and child pornography. 275 Banjul Charter, supra note 260. 276 AMCHR, supra note 260.



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Rights and Fundamental Freedoms.277 But few of these conventions provide for an individual’s right to redress or to receive compensation except for the European and the American conventions, which provide for individual compensation for damages arising out of a state’s violation of protected rights.278 More recently, the 1998 statute of the ICC (for which this author had the honor to serve as chair of the drafting committee) provides for a victim’s right to compensation.279 The first international document to incorporate victims’ rights was the Universal Declaration of Human Rights of 1948, which stated that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”280 While the European and the American conventions, which provide for individual compensation for damages arising out of a state’s violation of protected rights,281 it was not until 1985 that the United Nations addressed the question of victims’ rights when the Seventh United Nations Congress on Crime Prevention and Criminal Justice (“Congress”) adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (“Declaration”).282 The draft text, which was prepared by a committee of experts who convened in Ottawa, Canada in 1984 and subsequently submitted to the Congress, was far more extensive than the text that was eventually adopted in 1985.283 This is particularly so with respect to the right of redress for victims of states’ abuse of power.284 That section of the Declaration, whose draft text was two pages long, was reduced to an innocuous paragraph while the rest of the text dealt with victims of crime committed by individuals. The catalyst for the UN’s effort to adopt a resolution concerning victims was a 1984 industrial disaster in the town of Bohpal, India, which caused the release of toxic chemicals resulting in the death and illness of thousands of persons.285 The deadly spill was due in large part to the state’s failure to protect its citizens from industrial malfeasance and misfeasance.286 The first issue confronting the 1984 delegates was whether states could be held civilly or criminally accountable, or both, for their failure to provide adequate oversight over private sector

277 ECHR, supra note 260. 278 See AMCHR, supra note 260, at art. 63; ECHR, supra note 260, at art. 41. 279 ICC Statute, supra note 40, at art. 75, 79 (trust fund for victims). 280 Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948), Art. 8. 281 See AMCHR, supra note 260, at art. 63; ECHR, supra note 260, at art. 41. 282 G.A. Res. 40/34 (29 November 1985); See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 HRLR 203 (2006). 283 Id. See also 7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed, 1988). 284 Declaration, Annex (Article 11). 285. See Amnesty Int’l Rep. Clouds of Injustice, Bhophal Disaster 20 Years On (2004) available at http://www.amnesty.org/en/library/info/ASA20/015/2004 (last visited January 18, 2012) 286 Id.

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entities engaging in inherently dangerous activities. The second question was whether a state’s failure to oversee private sector entities placed them de facto beyond the reach of the law. The third question was whether state-actors and corporate decision makers can be de facto beyond the reach of the law when the outcomes of their conduct, by commission or omission, constitutes an international crime. Establishing rights of redress for victims of states’ crimes was not something the international community was willing to accept in 1985, even though many states provide for administrative and civil accountability for injuries to victims in their national legislations. But states maintain barriers against criminal responsibility for state actors, particularly for civilian superior responsibility. Shortly thereafter, in 1989, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities entrusted the task of undertaking a study concerning the status of the right of reparation for victims to Mr. Theo van Boven, who in 1997 prepared the Draft Basic Principles and Guidelines on the Right to Restitution, Compensation, and Rehabilitation, for Victims of Gross Violations of Human Rights and Fundamental Freedoms.287 The Commission on Human Rights found this document a useful basis for giving priority to the question, and circulated the draft among states and interested organizations for comment. The task of finalizing a set of basic principles and guidelines based on the comments of interested states and organizations was then entrusted to this writer by the Commission on Human pursuant to its resolution 1998/43.288 The drafting process included extensive research of extant international law norms, consultations with representatives of interested governments, organizations, and highly respected experts. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (“Basic Principles on Victim Redress”) were presented to Commission on Human Rights in April 2000.289 The adoption 287 Draft Basic Principles and Guidelines on the Right to Restitution, Compensation, and Rehabilitation, for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. E/CN.4/1997/104, Annex (1997). 288 C.H.R. res. 1998/43, ESCOR Supp. (No. 3) at 150, U.N. Doc. E/CN.4/1998/43 (1998). 289 After 1984, when the Basic Principles of Justice for Victims of Crime and Abuse of Power were adopted at a meeting in Ottawa which this writer had the honor of chairing, efforts at developing remedies for victims remained essentially an NGO endeavor. In 1989, the sub-Commission appointed Professor Theo Van Boven as Special Rapporteur on the subject of victims’ reparation. His mandate was then established by the Commission on Human Rights, and lasted until 1998, when the Commission appointed this writer as Independent Expert. In reliance upon Van Boven’s prior work, this writer completed two reports and prepared guidelines, which were embodied in a report to the Commission in 2000. Because of the impending U.N. Conference on Racism, which raised concern among governments that different groups of victims would rely on these principles to make claims against governments, the question was temporarily set aside. But continued interest by certain governments and by international civil society brought the question once again to the fore of the Commission’s attention. The final report of the Independent Expert and the prin-



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of the “Basic Principles on Victim Redress” was postponed by the Commission until 2001, and then postponed again to 2002. The delay in adopting the Principles was the result of the September 2001 World Conference on Racism where the issue of victim compensation was contested by many states.290 Several governments therefore opposed the adoption of these “Basic Principles on Victim Redress” for fear that claims arising out of their past racial or colonial practices may be raised.291 It was not until 1998, following the adoption of the ICC statute by the Rome Diplomatic Conference, July 17, 1998 that the question of victims’ rights took on a new life. Individual international criminal responsibility was the gravamen of the ICC’s jurisdiction.292 Head of State and other immunities were removed in Article 27 and superior responsibility was clearly established.293 The principal goal of the elimination of immunities and the application of superior responsibility was to provide deterrence and thereby to achieve prevention. These are the same goals reflected in the legislative policy underlying domestic criminal laws of most legal systems. The theory of general deterrence, however, is based on the effectiveness and relative certainty of retributive sanction attaching to the consequences of the criminal violation. Retribution in some legal systems goes back to Talmudic Talion Law (with its famous codification of an “eye for an eye”)

ciples were submitted to the Commission on Human Rights in 2000. See The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission Resolution 1999/33, U.N. Doc. E/CN.4/62 (Jan. 18, 2000) (basic principles and guidelines on the right to a remedy and reparation are attached as an annex). The Commission did not act on the guidelines pending further consultations between governments, pursuant to its Resolution, The Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Doc. 2002/44 (April 23, 2002). These consultations, which took place in October 2002, resulted in the following report: The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, Note by the High Commissioner for Human Rights, U.N. Doc. E/CN.4/2003/63 (Dec. 27, 2002). At its 59th session, the Commission adopted a resolution for the finalization of the principles on the basis of governments’ input (based on U.N. Doc. E/CN.4/2003/L.44 (April 14, 2003)). 290 See Report of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, A/CONF.189/12 (Jan. 25, 2002), available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.Conf.189.12.En?Opendocument; see also World Conference on Racism, Daily Highlights (Sept. 8, 2001), available at http://www.un.org/WCAR/dh/; U.N. Race Conference On Thin Ice, CBS News, July 25, 2001 http://www.cbsnews.com/stories/2001/07/25/world/ main303313.shtml. For the European Commission view, see Council Conclusions on the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, http://europa. eu/legislation_summaries/human_rights/human_rights_in_third_countries/r10107_en.htm (last updated July 5, 2006); European Union Endorses Compensation for Racism and Slavery, SABC News, Mar. 20, 2001 http://www.sabcnews.co.za/Article/PrintWholeStory/0,2160,12608,00.html. 291 See also World Conference on Racism, Daily Highlights (Sept. 8, 2001), available at http:// www.un.org/WCAR/dh/ (last visited Nov. 6, 2011); U.N. Race Conference On Thin Ice, CBS News, July 25, 2001, http://www.cbsnews.com/stories/2001/07/25/world/main303313.shtml. 292 Id. 293  Id.

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which was designed to provide “justice” or, more appropriately, satisfaction to the victims.294 This is the reason for the inclusion in the Rome Statute of article 68(3), which provides for victims’ recovery. Subsequently, as stated above, the Rules of Procedure and Evidence adopted in 2000 provide, in Rule 85, for victim’s participation in the proceedings.295 The ICC statute, having taken this unprecedented position, spurred the efforts undertaken by the United Nations Commission on Human Rights which resulted in the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Basic Principles”).296 Unlike the 1985 Declaration, which focused on domestic crime, the 2005 Basic Principles focused on gross violations of international human rights law and serious violations of international humanitarian law, thus complementing the ICC’s provision for victim compensation and participation in criminal proceedings.297 Unlike the ICC’s Article 68, the Basic Principles provide for a number of different remedies for victims of the crimes within the scope of international human rights law and serious violations of international humanitarian law. They are: a) restitution, or the “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property”; b) compensation “for any economically assessable damage” including for physical or mental harm, lost employment, education or social opportunities, material damages and loss of income, moral damage, and the cost of any medical, psychological, legal or social services costs incurred; c) rehabilitation, or the provision of medical, psychological, legal or social services; d) satisfaction, or the implementation of measures to prevent future violations, the verification and public disclosure of facts related to the violation, a declaration from a judicial body recognizing the harm done to the victim thereby restoring the victim’s dignity and reputation, a public apology, the imposition of sanctions against the perpetrator(s), commemorations, and the inclusion of the incident in educational materials; and e) guarantees of nonrepetition, including military, police and judicial reform as well as the protection of human rights defenders, the provision of continuing education to the military, police and judiciary, monitoring for human rights violations and reforming problematic laws.298 294 In addition to Talmudic law, Islamic law based on the Qur’an provides for crimes of Qisas, an option to the victim. The choices are: “Talion Law” or the equivalent harm (a death for a death, and injury for injury), the payment by the perpetrator of Diyya (victim compensation), or pardoning (forgiving) the perpetrator, which is the most desirable option. 295 International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/ Add.1 (2000), Rule 85. 296 G.A. Res 60/147 (New York 21 Mar. 2006). 297 Bassiouni, Supra note 3. 298 Principles 19-23, supra note 289.



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Under Rule 85 of the ICC’s Rules of Procedure and Evidence, victims have the right to participate in ICC proceedings with respect to crimes within the jurisdiction of the court, which as of now are defined in articles 6, 7, and 8—respectively “genocide”, “crimes against humanity”, and “war crimes”—and after its possible entry into effect in 2017, the crime of “aggression”.299 Violations giving rise to victims’ rights and participation under the ICC regime are more limited than under the 2005 Basic Principles, as are the remedies afforded. Under the ICC’s Rules, these remedies are limited to restitution, compensation and rehabilitation,300 and do not extend to other forms of redress for victims contained in the 2005 Basic Principles, as described above. It should also be noted that neither the Statute adopted in 1998 nor the Rules adopted in 2002 define compensation or rehabilitation. Under the provisions in the ICC Statute for the ICC’s Trust Fund,301 individual claims for reparations shall be made directly against the convicted person, which limits the exposure of States and also potentially the level of the reparation. While the Basic Principles are still deemed “soft law”, they provide for broader rights and remedies, they do not limit the victims’ competent forum,302 and they do not limit the category of victims to those who are directly encompassed within the facts described in the indictment. More importantly, the ICC victims’ substantive and procedural rights are not applicable to state parties who elect to exercise their domestic jurisdictional under the complementarity provision of the ICC statute by prosecuting the accused in domestic fora (Article 17). How victims’ rights can be reconciled under these two instruments, if and when the Basic Principles become in whole or in part customary international law, is still off the radar screen of scholars and experts of victims’ rights. Under the ICC scheme, the determination of a victim’s status depends first upon the prosecutor’s selection of the incriminating facts and second upon the Pre-Trial Chamber’s confirmation of the Indictment. Although the prosecutor’s reasons may be objective and not discriminatory, they are nonetheless informed by prosecutorial policy which may narrow the charges against the accused to ensure successful prosecution.303 The narrowing of the charges for such purposes 299 Rome Statute Articles 5(2) and 15bis(3). 300 Rome Statute, Article 75; ICC RPE, Rule 94(1)(d-f). 301 ICC RPE Rule 98. 302 The victim’s ability to enforce the rights contained in the 2005 Basic Principles are not limited to a specific forum as in case of victims’ rights under the ICC regime. 303 Redress, Victims and the ICC: Still Room for Improvement (2008), available at http://www .redress.org/downloads/publications/ASP%20Paper%20Draft%20Nov08.pdf; Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. U. J. Int’l Hum. Rts. 459 (2008); Greco, Victims’ Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis, 7 Int’l. Crim. L.R. 531 (2006); Stahn, Olásolo and Gibson, Participation of Victims in Pre-Trial Proceedings of the ICC, 4(2) J. Int’l. Crim. Just. 219-238 (2006); Mekjian and Varughese, Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court, 17 Pace Int’l L. Rev. 1 (2005).

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necessarily means narrowing the facts and focusing on a specific time and place on which the charges are based. As a result of such a narrowing, the category or group of court recognized victims becomes narrower and unjustly excludes those individuals whose victimization was not a part of the facts referred to in the indictment. Ultimately, this outcome arbitrarily distinguishes between victims on the basis of prosecutorial considerations, which are unrelated to the factual victimization caused by the total conduct of the perpetrator. It is obvious that this goes against the purpose and spirit of the ICC Statute. This approach also goes against the 2005 Basic Principles, whose focus was on defining categories of violations for which victims could obtain redress in a variety of forms, irrespective of the facts specified in the indictment. The 2005 Principles are more openly inclined towards the Romanist-Civilist (“civilist”) legal scheme of the “partie civile,” than the ICC statute, whose procedures are strongly influenced by the adversary-accusatorial approach which is characteristic of the common law systems.304 The unarticulated premises of the Basic Principles is that no victim should be excluded before a forum and victims who have the right to a cause of action should be able to participate in the criminal proceedings without exclusion by the prosecution for whatever reason. Victims in “partie civile” legal systems participate in the proceedings through their counsels who have the right to present or question evidence. The reason for such a prominent role of the “partie civile” in criminal prosecutions is that in those civilist systems the facts as determined in the criminal proceedings are binding on the subsequent civil proceedings. In other words, if there is no independent civil action for damages in respect to crimes for which prosecutions have taken place, then the victim has to establish the facts in the course of the criminal proceedings. The victim can either establish damages in the criminal proceeding or elect to have a subsequent civil action that establishes only damages. Judges in the proceedings can also remand the ascertainment of the quantum of damages to subsequent civil proceedings if that question excessively encumbers the criminal proceedings. If damages are established in the course of the criminal proceedings, the defendant is sentenced to pay the victim such damages. This is unlike common law systems where civil proceedings establish both liability and damages. There are of course variations in civilist legal systems some of which allow greater latitude for the defense in the role of a “partie-civile” while others are more restrictive in order to give the prosecution more leeway. In the latter cases 304 7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed., 1988); 65 International Review of Penal Law: “The Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings” (1994); 68 International Review of Penal Law: “Inquisitorial-Accusatorial: The Collapse of Dogmas in Criminal Procedure” (1997).



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the victims are allowed greater procedural latitude in bringing independent civil actions for damages in which they may or may not be bound by the facts as established in the criminal proceedings.305 The ICC statute reveals the ambivalence that exists in its efforts to reconcile the differences between the common law and civilist approaches as to the rights and roles of victims before the court. This is evident in the contentious ICC pretrial proceedings as to who the class of victims include, particularly before and after indictment confirmation hearings. In other words, a broader class of victims may be involved in the pre-confirmation investigatory stage only to be narrowed post-confirmation, which is a manifest injustice to the excluded victims. Another issue arises out of the ICC’s approach to the “partie civile” for victims arises in the context of victims’ counsel presentation of evidence which the prosecution may not find satisfactory. These and other issues pertaining to the fundamental rights of victims have yet to be resolved by the ICC. The jurisprudence of the ICC during its first few years has demonstrated a lack of coherence which reflects the tensions between those judges who essentially support an adversary-accusatory system of criminal procedure and those favoring the civilist “partie-civile” system. Neither the statute nor the rules have adequately dealt with the issues arising out of this incongruity causing several trial chambers and appeals chambers to issue multiple rulings over a period of 10 years that gave rise to criticism.306 305 Some Civilist states like Italy have provided as of 1989 with the adoption of their new code of criminal procedure for an independent right of civil action by victims irrespective of whether they were a Partie-Civile in a criminal case or not. See Article 130 et seq Codice di Procedura Pénale. 306 Supra note 304; see also Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1119, Trial Chamber, Decision on victims’ participation (18 January 2008); ICC-01/04-01/06-1432, Appeals Chamber, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 (11 July 2008). Prosecutor v. Thomas Lubanga: ICC-01/04-01/06-672 (6 November 2006); ICC-01/04-01/06-462 (22 September 2006); ICC-01/04-01/06-380 (4 September 2006); ICC-01/04-01/06-335 (17 August 2006); ICC-01/04-01/06-319 (10 August 2006); ICC-01/04-01/06-318 (9 August 2006); ICC-01/04-01/06-317 (8 August 2006); ICC-01/04-01/06-206 (24 July 2006); ICC-01/04-01/06-2698 (8 March 2011); ICC-01/04-01/06-2659-CORR-RED (8 February 2011); ICC-01/04-01/06-2586-RED (4 February 2011); ICC-01/04-01/06-2468 (9 June 2010); ICC01/04-01/06-2340 (11 March 2010); ICC-01/04-01/06-2207 (26 January 2010); ICC-01/04-01/06-2175 (27 October 2009); ICC-01/04-01/06-2135 (22 September 2009); ICC-01/04-01/06-2127 (16 September 2009); ICC-01/04-01/06-2115 (11 September 2009); ICC-01/04-01/06-2109 (8 September 2009); ICC01/04-01/06-2065 (23 July 2009); ICC-01/04-01/06-2063 (21 July 2009); ICC-01/04-01/06-2035 (10 July 2009); ICC-01/04-01/06-2032 (9 July 2009); ICC-01/04-01/06-1861 (8 May 2009); ICC-01/04-01/06-1564 (19 December 2008); ICC-01/04-01/06-1563 (19 December 2008); ICC-01/04-01/06-1562 (18 December 2008); ICC-01/04-01/06-1556 (15 December 2008); ICC-01/04-01/06-1379 (5 June 2008); ICC01/04-01/06-1368 (2 June 2008); ICC-01/04-01/06-1333 (16 May 2008); ICC-01/04-01/06-1211 (6 March 2008); ICC-01/04-01/06-1191 (26 February 2008); ICC-01/04-01/06-1119 (18 January 2008); ICC-01/0401/06 OA 9 and OA 10 (16 May 2008); ICC-01/04-01/06-1239 (20 March 2008); ICC-01/04-01/06-1347 (22 May 2008); ICC-01/04-01/06-1426 (9 July 2008); ICC-01/04-01/06-1432 (11 July 2008); ICC-01/04-01/06-1435 (15 July 2008); ICC-01/04-01/06-1448 (28 July 2011); ICC-01/04-01/06-1453 (6 August 2008); ICC-01/04-01/06-2155, (9 October 2009); ICC-01/04-01/06-2159 (14 October 2009); ICC-01/04-01/06-2168 (20 October 2009); ICC-01/04-01/06-2546 (30 July

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A number of unresolved issues remain such as (1) the rights of victims before national tribunals of state-parties exercising their complementary rights under the statute; (2) the rights of victims left out of that category because of the ICC prosecutor’s choice of narrowing the facts in a given case (thus excluding actual victims of the crime); (3) The intersection of victims’ rights with Ne bis in idem protections; (4) the rights of victims before the ICC to ask for additional remedies on the basis of customary international law, if and when, some or all of the remedies contained in the 2005 Basic Principles reach such a level; and 5) victims’ appeal rights.307 The ICC Statute and Rules were a step forward in securing victims’ rights, but for lack of political consensus, and maybe because the Rome Conference negotiators were mostly diplomats whose knowledge of comparative criminal law and procedure was limited, the statutory language was inadequate. Subsequently, the ICC Judges considering victims’ issues also did not demonstrate their grasp of these legal questions. The jurisprudence of the ICC is less than satisfactory, and it is likely to be revisited by the Court in the years to come. 8.2.2. Defining the Term “Victim” Principle 8 of the “Basic Principles on Victim Redress” as proposed by this writer defines “victims” of violations of international human rights and humanitarian law as follows: 2010); ICC-01/04-01/06-2552 (13 August 2010); ICC-01/04-01/06-2555 (17 August 2010); ICC-01/04-01/06-2556 (18 August 2010); ICC-01/04-01/06-2575 (29 September 2010); Situation in the Democratic Republic of the Congo, ICC-01/04 OA4 OA5 OA6. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui: ICC-01/04-01/07-3185 (21 October 2011); ICC-01/04-01/07-3064 (16 August 2011); ICC-01/04-01/07-2642 (10 January 2011); ICC-01/04-01/07-2517 (9 November 2010); ICC-01/04-01/07-2367 (6 September 2010); ICC-01/04-01/07-2288 (16 July 2010); ICC-01/04-01/07-2124 (24 May 2010); ICC-01/04-01/07-2108 (19 May 2010); ICC-01/04-01/07-2032 (19 April 2010); ICC-01/04-01/07-1967 (16 March 2010); ICC-01/04-01/07-1876 (16 February 2010); ICC-01/04-01/07-1788 (22 January 2010); ICC-01/04-01/07-1669 (23 November 2009); ICC-01/04-01/07-1567 (28 October 2009); ICC-01/04-01/07-1491-Red (23 September 2009). The Prosecutor v. Callixte Mbarushimana: ICC-01/04-01/10-483 (24 January 2011); ICC-01/04-01/10-476 (20 December 2011); ICC-01/04-01/10-441 (23 September 2011); ICC-01/04-01/10-382 (18 August 2011); ICC-01/04-01/10-351 (11 August 2011); ICC-01/04-01/10-265 (4 July 2011); ICC-01/04-01/10-229 (10 June 2011); ICC-01/04-01/10-181 (24 May 2011). The Prosecutor v. Jean-Pierre Bemba Gombo: ICC-01/05-01/08-2027 (21 December 2011); ICC-01/05-01/08-2011 (15 December 2011); ICC-01/05-01/08-1935 (21 November 2011); ICC-01/05-01/08-1862 (25 October 2011); ICC-01/05-01/08-1837 (11 October 2011); ICC-01/05-01/08-1711 (6 September 2011); ICC-01/05-01/08-1619 (23 September 2011); ICC-01/05-01/08-1597 (23 September 2011); ICC-01/05-01/08-1590 (8 July 2011); ICC-01/05-01/08-1091 (23 December 2010); ICC-01/05-01/08-1017 (18 November 2010); ICC-01/05-01/08-871 (6 September 2010); ICC-01/05-01/08-857 (18 August 2010); ICC-01/05-01/08-851 (11 August 2010); ICC-01/05-01/08-807 (19 July 2011); ICC-01/05-01/08-699 (22 February 2010); ICC-01/05-01/08-623 (27 November 2009); ICC-01/05-01/08-566 (20 October 2009); ICC-01/05-01/08-500 (3 September 2009); ICC-01/05-01/08-408 (22 April 2009); ICC-01/05-01/08-349 (8 January 2009); ICC-01/05-01/08-184 (23 October 2008); ICC-01/05-01/08-103 (12 September 2008). 307 The ICC Statute provides that its provisions are also interpreted on the basis of customary international law. See Article 21.



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A person is a “victim” where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss or impairment of that person’s fundamental rights. A “victim” may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.308

The above definition is based on that found in the Basic Principles of Justice for Victims of Crime and Abuse of Power309 and is likewise quite similar to that adopted by the Preparatory Commission on the Establishment of the International Criminal Court in its Rules of Procedure and Evidence.310 The definition contemplates four types of victims: (1) those individuals who directly suffer harm; (2) dependents or family of a direct victim who suffer indirectly because of the primary victimization; (3) individuals injured while intervening to prevent violations; and (4) collective victims such as organizations or entities. The first category of victims is those individuals who personally are the victims of violations such as torture and arbitrary arrest or property confiscation. The second category includes the members of their household or dependants who suffer because of the primary violation. For example, if the primary income earner is “disappeared” or unable to work because of injuries sustained, then certainly the family suffers loss as well. Individuals who are injured trying to intervene are also included. Injuries that such a person might suffer included those resulting from physically trying to pull a victim from harm’s way, loss of employment, or imprisonment for challenging authorities for persecuting a targeted group. The collective victim is perhaps best illustrated by organizations or entities that suffer harm to property that is dedicated to religious, educational, humanitarian, or charitable purposes. This includes those entities that are in fact the community’s custodians of cultural property, such as historical monuments. The significance of being categorized as a victim lies in the fact that states, intergovernmental and nongovernmental organizations, and private enterprises are called to treat victims with compassion and respect, as well as to ensure that appropriate measures are taken for their safety and privacy, as well as the safety and privacy the victim’s family.311 The Statute of the ICC requires ­special

308 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter Basic Principles on Victim Redress], at princ. 8. 309 Declaration of Basic Principles of Justice for Victims, supra note 282, at art. 1. 310 International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/ Add.1 (2000), at R. 85. 311 Basic Principles on Victim Redress, supra note 289, at princ. 10.

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­ rotection of victims at trial by allowing such measures as the presentation p of evidence by closed-camera or other means, particularly to protect children and victims of sexual violence from re-traumatization.312 Moreover, the Statute entrusts the Registrar of the Court to establish a Victim and Witnesses program to provide relevant protection and services.313 8.2.3. A State’s Obligation to Respect, Ensure Respect for, and Enforce International Human Rights and Humanitarian Law States bear the obligation to respect, ensure respect for, and to enforce norms of international human rights and humanitarian law that incorporate treaties to which they are parties, found in binding customary international law, and those that have been incorporated in their domestic legal system.314 This obligation gives rise to a state’s duty to: (1) take appropriate legal and administrative action to prevent violations; (2) investigate violations and where appropriate, take action against the violator in accordance with its domestic or international law; (3) provide the victim with equal and effective access to justice irrespective of who is the ultimate bearer of the responsibility for the violation; (4) afford appropriate remedies to victims; and (5) provide for or facilitate reparations to victims.315 The above stated duties and obligations simply require, at the very least, states to follow international norms to which they have consented and their own national legal systems. 8.2.4. The Rights of Victims There are two principal overarching rights of victims of violations of human rights and humanitarian law norms. The first is that they have access to a fair and impartial mechanism of justice to redress their claim. The second is that if the claim is adjudged valid, then an adequate award of reparation is to be made. A. The Right to Access Mechanisms of Justice Principle 12 of the “Basic Principles of Victim Redress” describes the right of access to mechanisms of justice as follows: A victim’s right of access to justice includes all available judicial, administrative, or other public processes under existing domestic laws as well as under international law. Obligations arising under international law to secure the individual or col312 ICC Statute, supra note 40, art. 68. 313 Id. at art. 43(6). 314 Basic Principles on Victim Redress, supra note 289, at princ. 10. 315 See International Protection of Victims, 7 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1988).



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lective right to access justice and fair and impartial proceedings should be made available under domestic laws. To that end, States should: (a) Make known, through public and private mechanisms, all available remedies for violations of international human rights and humanitarian law; (b) Take measures to minimize the inconvenience to victims, protect their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during, and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Make available all appropriate diplomatic and legal means to ensure that victims can exercise their rights to a remedy and reparation for violations of international human rights or humanitarian law.316

At present, international law does not provide for the modalities pursuant to which a victim may present a claim. B. The Right to Reparation317 If an individual is determined to be a victim of a violation of an applicable human rights or international humanitarian law norm, then adequate, effective, and prompt reparation must be made.318 Such reparation should be proportional to the gravity of the harm suffered.319 In accordance with its domestic and international legal obligations, a state should provide reparation to victims for its acts or omissions in violations of international human rights and humanitarian law.320 In the event that a violation is not attributable to the State, the party responsible should make the appropriate reparation.321 However, in the event that the responsible party is either not able or willing to provide reparation, the State should endeavor to provide the reparation to victims, especially those who have sustained serious bodily injury or physical or mental impairment.322 To such ends, states should likely seek to establish national trust funds or contribute to an international fund for such purposes.323 Such an end is in keeping with the call of the Basic Principles of Justice for Victims of Crime and Abuses of Power to establish such a fund.324 Indeed, such a fund is contemplated by Article 78 of the ICC.325

316 Basic Principles on Victim Redress, supra note 289, at princ. 12. 317 For forms of reparation and redress of victims, see infra Chapter X. 318 Basic Principles on Victim Redress, supra note 289, at princ. 15. 319 Id. 320 Id. at princ. 16. 321 Id. at princ. 17. 322 Id. at princ. 18. 323 Id. 324 Declaration of Basic Principles of Justice for Victims, supra note 282, at art. 13. 325 ICC Statute, supra note 40, at art. 78.

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Providing victims reparation rights is perhaps an empty victory if there is no corresponding mechanism to provide a victim with a forum to press a claim or obtain an award. This is why one of the cornerstones of a victim’s right to reparation is that states have an obligation to have some form of mechanism in place to redress violations of their international and domestic legal obligations. The mechanisms for reparation are national, regional, and international. Perhaps the most traditional method for a victim to seek redress for a violation is through national courts. The civil law tradition permits victims to participate in the criminal proceeding as a partie civile and obtain an award of compensation that is subsequently enforced in the civil courts.326 The common law tradition provides for a separate legal proceeding that is independent from the criminal action.327 Thus, in common law legal systems, it is possible for a victim to obtain compensation even if there is an acquittal in the criminal proceeding.328 In addition, special administrative tribunals or commissions may be established to deal with widespread victimization in a uniform fashion. However, these national methods presume that a given national system is either willing to fulfill and enforce international and domestic legal obligations or has the capacity to do so. Indeed, in many cases, the violator regime is still in power or the domestic legal infrastructure has been so devastated by conflict that it is unable to cope with claims. In such cases, both regional and international mechanisms may be applicable. It is important to note, however, that the national legal systems of other states might too provide an alternate venue for victims to pursue a claim. For example, the Alien Tort Claims Act in the United States allows a non-national to pursue an action for a tort in violation of the law of nations.329 While the tort need not be committed in the United States, the requirements of personal jurisdiction over the offender still exists.330 Indeed, successful claims have been brought and won against dictators and war criminals.331 The Alien Tort Claims Act has also been used to pursue both Osama 326 See International Protection of Victims, supra note 283. 327 See Dan Dobbs, The Law of Torts (2001); Harper et al., The Law of Torts (3d ed. 1996). 328 See Rufo v. Simpson, 103 Cal. Rptr. 2d 492 (Cal. App. 2d Dist. 2001) (involving the ex-football player O.J. Simpson). 329 Alien Tort Claims Act, 28 U.S.C. § 1350 (2006). 330 Id. 331 See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (alleging abuses by Guatema-



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Bin Laden and the government of Afghanistan.332 This option is somewhat limited in providing redress, as it is necessary for the offender to have assets in the U.S. or another state that would be willing to execute the judgment. The process, however, does fulfill the goals of documenting the violations and publicly denouncing the violator in an official proceeding. Several regional mechanisms also exist that provide victims with an alternative venue to pursue a claim. These include the African, American, and European human rights commissions and courts.333 These entities provide an important check to national systems. However, they are not venues of first instance as they all require the exhaustion of local remedies before a victim’s claims be pressed. In the Inter-American System, the victim presents claims first to the InterAmerican Commission on Human Rights.334 The Commission investigates the claims and attempts to facilitate a settlement with the offending state.335 If this is not accomplished and there is merit to the claim, then the Commission prosecutes the claim before the Court on behalf of the victim.336 Victims have limited standing to pursue international claims for violations of human rights and international humanitarian law norms. International claims must be presented by the state of nationality or a state with a “genuine link” with the victim, although the language of the Barcelona Traction case supports individual standing in cases of violations of erga omnes obligations.337 International treaty-bodies, such as the Torture and Racial Discrimination Committees established respectively by the Convention Against Torture and the Convention on the Elimination of all Forms of Racial Discrimination,338 provide for different standing thresholds. In 1993, in response to serious violations of international humanitarian law committed in the territory of former Yugoslavia since 1991, the U.N. Security Council passed a resolution creating the ICTY. S.C. Resolution (827) of 25 May 1993, which contained the Statute of the ICTY, stated in its preambular language that the “work of the International Criminal Tribunal will be carried out without prejudice to the right of victims to seek, through appropriate means, ­compensation for damages incurred as a result of violations of humanitarian lan military forces); Rein v. Socialist People’s Libyan Arab Jamahiriya, 568 F.3d 345 (2d Cir. 2009) (noting that the consolidated suits resulted in a $2.7 billion settlement between the government of Libya and 269 of the 270 plaintiffs). 332 See James Cooper Hill, The Law of Sovereign Immunity and Terrorism, 58–9 (2006) (discussing Odilla Mutaka Mwani v. Osama Bin Ladin, 2005 U.S. App. LEXIS 16185 (D.C. Cir. 2005)). 333  See supra note 260. 334 AMCHR, supra note 260, at art. 44. 335 Id. at art. 48. 336 Id. at arts. 50–51. 337 Belg. v. Spain, supra note 269. 338 Torture Convention, supra note 273.

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law.”339 In 1994, in response to the murder of approximately 800,000 Rwandans, the U.N. Security Council passed the resolution creating the ICTR.340 Although both the ICTY and ICTR continue to play an important role in the enforcement of international criminal and humanitarian law, they fail to adequately address the issue of victim reparations. This is partially because the statutes and the judge-made rules of procedure and evidence provide only limited guidance on the issue of reparations. In particular, the legal provisions of both tribunals limit reparations to the return of stolen property “to their rightful owners,” without providing redress for personal injuries of physical or mental nature.341 With regard to compensation, Rule 106 at both tribunals allows a victim, or persons claiming on behalf of the victim, to bring a legal action in the national court (or other competent body) for compensation, provided that relevant national legislation is available.342 Thus, the ultimate decision on whether to provide compensation to a victim is left to national justice systems, which, in case of the post-war Yugoslavia and Rwanda, were ill-prepared to handle such cases. The most promising potential for the development of victims’ rights lies in the ICC’s provisions concerning victim compensation.343 Rule 85 of the ICC Rules of Procedure and Evidence defines victims as: (a) “Natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court”; and (b) “Organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects from humanitarian purposes.”344 The ICC also has the power to order the payment of appropriate reparations to the victims by the convicted person.345 The Court, either by request or in exceptional circumstances on its own motion, may determine the scope and

339  See United Nations Security Council Resolution 827 on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, S.C. Res. 827, 48 U.N. SCOR, 48th Sess., U.N. Doc. S/RES/827 (May 25, 1993). 340 See ICTR Statute, supra note 37. 341 ICTY Statute, supra note 36, at art. 24; see Lasco, supra note 261, at 19. Rule 105 at both ad hoc tribunals further elaborates on the procedure for carrying out restitution in case the Trial Chamber can determine the rightful owner. Id.; see also ICTY Statute, supra note 36, at R. 105. 342 ICTY, supra note 36; ICTR Statute, supra note 37, at R. 106. 343 ICC Statute, supra note 40, at arts. 75, 79; Susana SáCouto & Katherine Cleary, Victim’s Participation in the Investigations of the International Criminal Court, 17 Transnat’l L. & Contemp. Probs. 73 (2008); Christine H. Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. J. Int’l Hum. Rts. 459 (2008); Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, 26 St. Louis U. Pub. L. Rev. 249 (2007). 344 ICC Statute, supra note 40, at art. 85. 345 Id. at art. 75.



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extent of any damage, loss and injury to, or in respect of, victims.346 The Court may then make an order for reparation (compensation, restitution, and rehabilitation) directly against the convicted person.347 Before making an order, the Court may invite and take account of representations from or on behalf of the offender, victims, and other interested persons or states.348 By inviting comment from other interested persons the Court may take into account the needs of the victim and others who might be affected by the award, such as the offender’s family or a bona fide purchaser of property that is to be restored. In order to facilitate enforcement of awards, the ICC Statute mandates states parties to the convention to give effect to all decisions entered.349 The ICC Statute also envisions a Trust Fund for the benefit of victims and their families.350 Assets of the Trust Fund may come from money or property collected through fines or forfeiture.351 The Court may order reparations to victims out of this fund.352 The Court is powerless to order reparations from anyone other than the individual violator. Thus, even though the individual offender’s acts can be attributed to the state, an order for reparations cannot be imposed on the state. However, nothing in Article 75 is to be interpreted as prejudicing the rights of victims under national or international law; thus, these claims can be pursued in other forums.353 In addition to the potential for reparation, the Statute contains other victim-centered aspects. Specifically, the Statute envisions the creation of a Victims and Witnesses Unit.354 Moreover, victims are allowed to participate in several stages of the proceedings at the discretion of the court, including: a) the Pre-Trial Chamber’s decision to authorize an investigation;355 and b) the awarding of reparation.356 Pre-Trial Chambers I and II of the ICC have considered the extent of victim participation in the investigative stage of a situation.357 Pre-Trial Chamber I held 346 Id. at art. 75(1). 347 Id. at art. 75(2). 348 Id. at art. 75(3). 349 Id. at art. 75(5). 350 Id. at art. 79. 351 Id. at art. 79(2). 352 Id. 353 Id. at art. 75(6). 354 Id. at art. 43(6). 355 Id. at art. 57. 356 Id. at art. 75. 357 See Situation in the Democratic Republic of Congo, Case No. ICC-01/04, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 (Pre-Trial Chamber I, Jan. 17, 2006); Prosecutor v. Joseph Kony et al., Case No. ICC-02/ 04-01/05, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, P 2 (Pre-Trial Chamber II, Aug. 10, 2007); Situation in Darfur, Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, ICC-02/05 (Pre-Trial Chamber I, Dec. 6, 2007).

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that “persons accorded the status of victims will be authorized . . . to be heard by the Chamber in order to present their views and concerns and to file documents pertaining to the current investigation of the situation.”358 Pre-Trial Chamber II listed three specific rights granted to victims: (1) “right to be formally informed of procedural developments which is typically granted to individuals or entities entitled to some role in the proceedings;” (2) “victims having communicated with the Court’ are mentioned in rule 92, sub-rules 2 and 3 as a separate and additional group of victims besides those who ‘have already participated in the proceedings;’ ” and lastly (3) “only rule 92, sub-rule 2 refers to communication by victims with the Court having occurred ‘in respect of the situation or case’, while the remaining provisions only refer to victims having communicated with the Court in respect of a case.”359 This distinction between the participation of a victim in a situation, as opposed to a case, may prevent more victim participation at the pre-trial stage. 8.4. Economic and Political Considerations The movement in many societies to provide compensation for victims of domestic crimes was at first well-received, in part because it originated in developed societies whose affluence did not cause concerns of an economic nature. In addition, however, what in the 1960s was called victimology was not only concerned with monetary compensation of victims of common crimes, but it also offered an incentive to governments by linking the compensation to victims’ cooperation in the pursuit of criminal prosecutions. Thus, governments such as Canada and several states within the United States provided victim compensation for common crimes and encouraged, thereby, victim participation in criminal prosecutions.360 The movement gained prominence until the 1980s, when experts of victimology and other fields sought to extend monetary compensation to other forms of redress, including medical, psychiatric, and psychological treatment, 358 Situation in the Democratic Republic of Congo, supra note 306, at para. 71. 359 Prosecutor v. Joseph Kony et al., supra note 357, at para. 94 (emphasis in original). For a more in-depth analysis as to the ramifications of these decisions, see SáCouto and Cleary, supra note 343, at 97. 360 For Canadian legislation see Legislation, Policy Center for Victim Issues, http://www .justice.gc.ca/eng/pi/pcvi-cpcv/legis.html (last visited Nov. 6, 2011). For a compilation of national legislation on victimology and victims’ rights, see International Victimology Institute Tilburg, http://www.victimology.nl/ (last visited Nov. 6, 2011). For U.S. resources, see Victims of Crime Act— Crime Victims Fund, Office for Victims of Crime, https://www.ncjrs.gov/ovc_archives/factsheets/ cvfvca.htm (last visited Nov. 6, 2011). For a listing of U.S. State programs aimed at compensating victims of crime, see Dan Eddy, National Roudtable on Victim Compensation, State Crime Victim Compensation Programs: Nature and Scope (2003), available at http://www.ncvc.org/ ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=32593. For a listing of Victim’s Rights Statutes in the U.S., see Victims’ Rights in 50 States, KlassKids Foundation, http://www.klaaskids.org/vrights.htm (last visited Nov. 6, 2011).



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and to expand the basis of such compensation and redress modalities to violations committed by state agencies and state officials.361 By the 1980s and 1990s, the movement of victim compensation started to slow. States that were willing to recognize victims’ rights when the harm was produced by individuals acting in their private capacity were no longer readily willing to support such rights when the harm was a product of state policy and/or committed by state actors. This is due to the reluctance of states to assume responsibility, and also, to avoid the economic consequences that such responsibility would entail. The reluctance of states increased significantly when proponents of victims’ rights began to claim historic violations. While some major Jewish organizations had for years pursued claims for the World War II Jewish Holocaust,362 resistance to these claims were consistent, but not without expectations of positive outcomes.363 In the late 1990s, significant breakthroughs occurred when the World Zionist Organization was able to negotiate a substantial settlement with Swiss banks, followed by similar successful settlements with German and Austrian industries in 1999–2001.364 This coincided with the submission by this writer of the “Basic Principles on Victim Redress” to the Commission on Human Rights in 1999, and with the General Assembly’s decision to hold a world conference on racism in September 2001. In preparation for the latter, many governments and NGOs advanced the proposition that governments who carried out racist policies, including colonialism and slavery, should be required to pay reparations.365 This became the point at which major governments with a colonial, slavery and racist past joined in efforts to put the whole question of victims’ rights on hold. 361 See Peggy Tobolowski, Victim Participation in the Criminal Justice Process:  Fifteen Years After the President’s Task Force on Victims of Crime, New Eng. J. Crim. & Civil Confinement  21, 25 (1999); John R. Anderson & Paul L. Woodard, Victim and Witness Assistance: New State Laws and the System’s Response, 68 Judicature 221, 222–23 (1985). 362 See Statement by Under Secretary of Commerce Stuart Eizenstat before the House Banking and Financial Services Committee, Washington, DC, (Dec. 11, 1996) available at http://www .state.gov/www/regions/eur/961219eizen.html. For a listing related documents see Holocaust Issues, U.S. Department of State, available at http://www.state.gov/www/regions/eur/holocausthp.html (last visited Oct. 19, 2011). 363 See, e.g., U.S. Department of State, Press Statement by James P. Rubin/Spokesman, German Government Agreement on Holocaust Compensation (Jan. 13, 1998) available at http://secretary.state .gov/www/briefings/statements/1998/ps980113b.html. 364 Id.; see also U.S. Department of State, Press Statement by Nicholas Burns/Spokesman, Swiss Banks to Create Fund (Feb. 5, 1997), available at http://secretary.state.gov/www/briefings/ statements/970205b.html. For more recent developments see U.S. Department of State, Press Statement, Philip T. Reeker, Holocaust Insurance Agreement Reached (Sept. 19, 2002), available at http:// germany.usembassy.gov/germany/img/assets/8497/wf091902.pdf. 365 See Owen Bowcott, Africans Call for Slavery Reparations, Guardian, June 29, 2001, available at http://www.guardian.co.uk/world/2001/jun/29/race.unitednations; see also African Regional Preparatory Conference For the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Reports of Preparatory Meetings and Activities at the International, Regional And National Levels (2001), available at http://www .unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.189.PC.2.8.En?Opendocument.

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One speculation is that after the September 2001 United Nations conference on racism, major governments may find a way to mitigate any retrospective effects of victims’ rights to reparations, and may be more open to consider such rights in the future. Even so, the economic factor remains. Who bears the costs? The question of costs has essentially two sides. One side is when the government which has perpetrated the harm is still in power and has the financial means at its disposal to compensate the victims. The other side is when the offending government is no longer in power, and the one in power represents those who have been previously victimized. But if the new regime does not have financial means at its disposal to compensate the victims of the prior regime’s violations, then how are the victims to be compensated, and who will ultimately bear the economic costs? The regime change in Rwanda illustrates the difficulty of this question. Can a Tutsi government with no resources be expected to provide compensation to Tutsi citizens for violations committed by a Hutu regime? Some, mostly humanists, feel that there is a duty of human social solidarity that would require the establishment of an international trust fund. Regrettably, this is far from being achievable, either politically or economically. Efforts to provide victims with certain rights will, however, continue to be incremental, though not always linear, in that they may be limited to certain conflicts or to certain categories of victims under certain particular circumstances. The incremental development of such a right will probably be more marked with respect to victimization committed by non-state actors, while those committed by state actors are likely to develop at a much slower pace. In 1984, the United Nations Draft Principles on Justice for Victims of Crime and Abuse of Justice366 was quite extensive with respect to obligations of states for victimization occurring as the result of a state’s “abuse of power.” But when the text was adopted at the Seventh United Nations Congress on Crime Prevention and Criminal Justice held in Milan, Italy in 1984, the draft was significantly shortened. In fact, it was reduced to two innocuous paragraphs.367 In 1993, this writer was came in a position to propose the inclusion of a victim compensation provision in the Security Council Resolution 827 (1993), establishing the ICTY.368 But, as stated above, the Security Council’s only reference to victims came in the resolution’s preambular language; the statute’s text lacked any mention of victim compensation.369 The ICTR’s resolution, by contast, does not even mention 366 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, supra note 282. 367 See also M. Cherif Bassiouni, International Recognition of Victim’s Rights, in 3 Bassiouni, ICL, supra note 38, at 633. 368 ICTY Statute, supra note 36; see Bassiouni, Yugoslavia Tribunal; Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former-Yugoslavia: A Documentary History and Analysis (1995). 369 ICTY Statute, supra note 36, at pmbl.



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victim compensation.370 Finally, as discussed above, the ICC statute contains provisions on victim compensation. But, it is uncertain how these provisions will be made operative, and how such a right will be funded. Nevertheless, it can be said with some degree of optimism that between 1984–1998 progress did take place, but much more is needed to make such progress a reality for victims. Probably the most important recognition of the victim as a subject of international criminal law is contained in the ICC Statute. This instrument recognizes several significant principles concerning victims: (1) victim participation in the proceedings; (2) protection of victims and witnesses during Court proceedings; (3) the right to reparations; and (4) trust fund out of which reparations to victims may be made. The international community’s increasing concern for victims of human rights and international humanitarian law violations is clearly evident in the evolution of international law over the course of the last fifty years. While the international legal system is far from being victim-oriented, some progress has been made to ensure that victims are not denied the basic right of redress for their injuries. Certainly, in honoring victims’ rights to benefit from remedies and reparation, the international community expresses human solidarity with victims and reaffirms the international legal principles of accountability, justice, and the rule of law. Section 9. Conclusion The international criminal responsibility of individuals for international crimes is now well-established, and ICL permeates national criminal law with respect to the duty to prosecute or extradite, aut dedere aut judicare,371 and with the consequences deriving from jus cogens international crimes.372 The international criminal responsibility of organizations and non-state actors is once again being reconsidered since the recognition of criminal responsibility of the SS and SD at the Nuremberg trials.373 It is conceivable that with the development of contemporary national concepts of criminal responsibility of organizations that these concepts will influence ICL.374 370 See ICTR Statute, supra note 37; Virginia Morris & Michael P. Scharf, I, II The International Criminal Tribunal for Rwanda (1998). 371 See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law (1995); infra Chapter V, section 2. 372 See infra Chapter III, section 3. 373 See supra section 4. 374 For example, there is a trend in anti-organized crime legislation to criminalize such organizations, as is the case, for example, with the Italian criminal code, Article 416 bis, which refers to membership in an organization having a mafia-type characteristic. The French criminal code

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The criminal responsibility of organizations (whether they are referred to as legal personalities, non-state actors, groups, or others) is not well-established, however, except in the legislation of a few countries.375 The reason for that is the legal uncertainty legal systems face with respect to the consequences of individual membership in such organizations. Nevertheless, it is a useful tool to reach the assets and instrumentalities that such organizations may use in the commission of their crimes. In short, the question is not whether it is appropriate for ICL to include responsibility for such organizations within its ratione personae, but how to deal with what is essentially a sui generis concept of criminal responsibility in the domestic legal systems in which they originate.376 The recognition of criminal responsibility of non-state actors has, for the first time, been recognized in ICL in Article 7 of the ICC Statute. It posits that nonstate actors are equivalent to states when it comes to the formulation and carrying out of policies targeting civilian groups in a widespread or systematic manner which produces the enumerated specific acts contained in that article.377 The notion of criminal responsibility for States was supported in the aftermath of World War I, but not since.378 However, in the last two decades, the idea of state criminal responsibility has re-emerged under a new political guise,

has a similar article dealing with association de malfaiteures. For an early description, see Gerhard O.W. Mueller, Mens Rea and the Corporation: A Study of the Model Penal Code Position on Corporate Criminal Liability, 19 U. Pitt. L. Rev. 21 (1957). For a more recent study, see International Congress of Comparative Law, La Criminalisation du Comportement Collectif: XIVe Congrés International de Droit Comparé (Hans De Doelder & Kluas Tiedman eds., 1996) See Schloenhardt, Transnational Organized Crime, supra note 54. See e.g., The Criminal Justice Systems Facing the Challenge of Organized Crime: Preparatory for the XVIth International Congress of Penal Law, 67 Revue Internationale de Droit Pénal 417 (1996); The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic I, General Part, 68 Revue Internationale de Droit Pénal 479 (1997); The Criminal Justice Systems Facing the Challenge of Organized Crime: Topic III, Procedural Part, 69 Revue Internationale de Droit Pénal (1998); The Criminal Justice Systems Facing the Challenge of Organized Crime: XVIth International Congress of Penal Law, Resolutions, 70 Revue Internationale de Droit Pénal 749 (1999); The United Nations Convention Against Transnational Organized Crime, 71 Revue Internationale de Droit Pénal 253 (2000). 375 Supra section 5. 376 It is sui generis because organizations cannot commit acts, something that is reserved to individuals. However, since organizations can have assets, it is important to have a finding that the organization is either criminal or engages in criminal activity in order to seize them. But in that case, the seizure of the assets is a legal consequence of a judicial finding of organization’s criminal nature or criminal activity. 377 See ICC Statute, supra note 40, at art. 8; see generally Bassiouni, Statute of the ICC, supra note 40; Bassiouni, Crimes Against Humanity, supra note 47; Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (2d ed. 2002); Wiebke Rückert & Georg Witschel, Genocide and Crimes Against Humanity in the Elements of Crimes, in International and National Prosecution of Crimes Under International Law: Current Developments (Horst Fischer, Claus Kress, & Sascha Rolf Lüder eds., 2002). 378 See Principles on State Responsibility, Rep. of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, ch. 4, U.N. Doc. GAOR A/56/10 (2001) (removing draft Article 19 containing norms on state criminal responsibility); see also supra section 6.



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namely Security Council sanctions.379 The imposition of sanctions or reparations on states is by its nature indiscriminate, and has a negative impact upon individuals who are not connected to any criminal conduct. This is essentially why the concept has not made much progress, though it has on occasion been resorted to under the guise of other names, such as those of United Nations sanctions and embargoes. The practice of human rights treaty bodies and human rights organizations to naming and shaming states for abuses of human rights is, in a sense, a form of moral sanction for a legal transgression, but it does constitute criminal responsibility. As to state responsibility, it remains essentially of a civil nature, even though it may include punitive damages.380 An important area of ICL that is likely to expand under the jurisprudence of the ICC is that of non-state actors’ responsibility for “crimes against humanity” under Article 7 of the ICC Statute, particularly with terrorist events such as those of September 11, 2001.

379 These sanctions have been imposed on Libya and Iraq since 1991. See U.N. Doc. SCOR S/Res/748 (March 31, 1992) (sanctions against the Libyan Arab Jamahiriya); U.N. Doc. SCOR S/ Res/666 (Sept. 13, 1990) (sanctions against Iraq); Bassiouni, Terrorism Documents, supra note 177, at 22–24. 380 See supra section 6.

Chapter three

International Crimes: Ratione Materiae Section 1. Introduction Most international crimes first developed in customary international law, and were thereafter embodied in conventional international law. What we now generically call “war crimes” were first in gaining cross-national recognition,1 but it was piracy that was recognized in the 1600s by a number of maritime states as the first international crime.2 The perpetrators of piracy and other early crimes like the slave-trade and slavery in the 1800s3 were referred to as hostes humani generis, the enemies of humanity, a concept that derived from Cicero’s writings, reflecting a philosophical perspective of Roman Law.4 Publicists from the seventeenth to the nineteenth centuries used that term to refer to perpetrators of international crimes. The concept of hostes humani generis was a consequence of the Roman law’s jus naturale and jus gentium. The former was the understanding of natural law that was imported in Roman law from Greek law, as it originated with Plato and Aristotle. The latter, however, was the Roman law’s norms applicable to the nations and peoples who were part of the Roman Empire or who were within the sphere of Roman influence. The jus naturale and the jus gentium, as well as the concept of hostes humani generis, presupposed the existence of a universal human community and uni­

1 For the historical evolution of the norms applicable to conduct in war, see also M. Cherif Bassiouni, Evolution of International Humanitarian Law and Arms Control Agreements, in A Manual on International Humanitarian Law and Arms Control Agreements (M. Cherif Bassiouni ed., 2000) [hereinafter Bassiouni, International Humanitarian Law]. 2 See Jacob W.F. Sundberg, The Crime of Piracy, in 1 International Criminal Law: Sources, Subjects, and Contents (M. Cherif Bassiouni ed., 3d rev. ed. 2008) [hereinafter 1 Bassiouni, ICL]; Alfred P. Rubin, The Law of Piracy (1998); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001). 3 See Bassiouni, Universal Jurisdiction, supra note 2, at 112; M. Cherif Bassiouni, Enslavement as an International Crime, 23 N.Y.U. J. Int’l L. & Pol. 445–517 (1991); M. Cherif Bassiouni, Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation, in 1 Bassiouni, ICL, supra note 2, at 535 [hereinafter Bassiouni, Enslavement, in 1 Bassiouni, ICL]. 4 This term is a sixteenth century adaptation of what Marco Tullio Cicerone, in his De Officiis referred to as commune hostis hommien, idem 3, 98, 107. See also Cicero, De Officiis (L.H.G. Greenwood trans., 1953). Cicerone, De Officiis, III, used the terms “nam pirata non est ex perduellium numero definitus, sed communis hostis omnium . . .” (emphasis added). See Dario Arfelli, Cicerone, De Doveri 290 (1991). I am indebted to Professor Giuliano Vassalli for this citation.

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versal values. Obviously, it is different from the contemporary notion of an international community as we have now come to know it, but it evidences the existence of a communal notion that applied to nations and peoples, and it stood for the proposition that those who transgressed certain fundamental universal values would be both enemies of that community as well as transgressors of the law of nations and peoples, namely, jus gentium.5 Thus, those who transgressed certain norms of the jus gentium by engaging in acts of brigandage on land or on sea, later called pirates, were at first called briganti,6 and that, as mentioned above, was referred to as commune hostis hommien, which in the sixteenth century, was changed into hostes humani generis in order to emphasize the moral opprobrium attached to such crimes.7 Both jus gentium and hostes humani generis are founded on the unarticulated premise that there exists a certain community of nations and peoples whose values and interests needed to be protected. The jus gentium regulated conduct, and those who violated certain of its norms became hostes, the enemies, who were to be tried and punished, though under national law and by national institutions. In time, Hugo Grotius, in 1624, concluded with respect to piracy that those who committed such crimes should be tried or punished, aut dedere aut punire.8 The regulation of how nations should behave emerged gradually out of the Westphalian legal order, which evolved after the Treaty of Westphalia in 1648.

5 The term jus gentium translates better in French as le droit des gens, and in English, more broadly, as the “law of nations.” The French is a more literal translation, and the English, a more conceptual one. Together, they reflect the Roman Law’s socio-political reality during the period of the Roman Empire. See e.g. Emmerick de Vattel, Le Droit des Gens, (The Law of Nations), bk. II, in Classics of International Law (Charles G. Fenwick, trad. 1916). During that period, Rome controlled a vast portion of lands and a large number of peoples. Their legal status varied significantly. Some nations retained their sovereignty but were subject to certain treaty limitations with Rome, and others were outright Roman provinces. This is why Roman Law developed the concept of jus gentium, which applied as the inter-national and inter-peoples law as established and enforced by Rome. See Edward Gibbon, The Decline and Fall of the Roman Empire (6 vols., 1960). For the history of international law, see generally, Arthur Nussbaum, A Concise History of the Law of Nations (2d ed. 1954). 6 See Bassiouni, Universal Jurisdiction, supra note 2, at 108; see also Cicero, supra note 4. 7 In modern times, the analogy is to “terrorism” where the term is applied to a number of common crimes like murder and kidnapping to enhance its moral opprobrium. See M. Cherif Bassiouni, Perspectives on International Terrorism, in International Terrorism: Multilateral Conventions 1 (M. Cherif Bassiouni ed., 2001) [hereinafter Bassiouni, Terrorism Conventions]; see also, e.g., M. Cherif Bassiouni, Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L.J. 83 (2002); Jose E. Alvarez, International Organizations: Then and Now, 100 Am. J. Int’l L. 324, 326 (2006). 8 See Hugo Grotius, De Jure Belli ac Pacis Libri Tres: Classics of International Law (Francis W. Kelsey trans., 1925). As indicated in chapter IV, infra, where this concept is discussed, this writer in 1973 changed the maxim to aut dedere aut judicare. See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (1995) [hereinafter Bassiouni & Wise, Aut Dedere Aut Judicare].



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The Westphalian legal order was Western and Christian and its premises were certain commonly shared values, which were reconciled with the recognition of the nation-states’ interests. The assumption was that the sovereign nation-states ruled by enlightened Christian monarchs would uphold these values, and in some ways, reduce their potential conflicts by limiting their state interests, and voluntarily conforming to the interests of a broader community. This Kantian view, its idealism notwithstanding, allowed states wide latitude in determining their interests and what limitations they would abide by.9 In time, the concept of an international community developed whose norms derived from commonly-shared values and commonly-shared interests, intended to supercede the narrow interests of the participants in this inter-national community process.10 This concept’s development led to the incremental recognition of certain commonly-shared values and interests whose protection and enforcement went through declarative and prescriptive stages, followed by a proscriptive phase which criminalized the violation of certain norms.11 However, the historical evolution from declarative to prescriptive and then to proscriptive was both ad hoc and haphazard-ad hoc because it focused on certain crimes or categories of crimes which developed in a compartmentalized way, haphazard because there was no overall concept or international legislative policy. In fact, international crimes have developed to date, without even an agreed-upon definition of what constitutes an international crime, the criteria for international criminalization, and how international crimes are distinguished. Section 2. Codification of ICL Except for this writer’s 1987 work, there is no comprehensive codification of international crimes.12 The ILC was tasked in 1947 with the responsibility of developing a Code of Offences Against the Peace and Security of Mankind,13 and

  9 Immanuel Kant, The Metaphysical Elements of Justice (John Lord trans., 1965). 10 For a discussion of the concept of an international community, see supra Chapter 1, section 3.4. 11 For this evolutionary theory of ICL developed by this writer, see M. Cherif Bassiouni, The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights, 8 Yale J. World Pub. Ord. 193 (1982). 12 See M. Cherif Bassiouni, The History of the Draft Code of Crimes Against the Peace and Security of Mankind, 27 Is. L. Rev. 1–21 (1993), reprinted in Commentaries on the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales 1 (1993); see also International Criminal Law Conventions and Their Penal Provisions (M. Cherif Bassiouni ed., 1997) [hereinafter Bassiouni, ICL Conventions]. 13 G.A Res. 174, U.N. GAOR, 2nd Sess., U.N. Doc. A/519 (1947).

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its draft was completed in 1954.14 However, the General Assembly tabled it until 1978, ostensibly for the reason that “aggression,” which the General Assembly had in 1952 referred to another committee,15 had not yet been defined. When it was ultimately defined in a General Assembly consensus resolution in 1974,16 the question of the Draft Code of Offences Against the Peace and Security of Mankind was revived. These technical reasons for tabling the project were only a cover for the real reason-the “cold war.” During that period, neither the Eastern nor the Western bloc wanted much to do with the codification of ICL or its enforcement. It was not until 1992, when the Security Council established the Commission of Experts to investigate violations of International Humanitarian Law in the Former Yugoslavia,17 that international criminal justice was once again being addressed. For the same reason, the establishment of an ICC, as discussed in Chapter 5, was also put on hold during that period of time.18 The ILC, based on its 1978 mandate of preparing a Code of Crimes Against the Peace and Security of Mankind, produced a first draft in 1991.19 The twenty-six categories of crimes far exceeded the mandate of the General Assembly, which was limited to those crimes affecting the “peace and security of mankind.” However, governments and experts saw the textual language of the Draft Code as overreaching and ambiguous20 to the point of violating the principles of legality

14 See U.N. G.A. Res. 898 (IX) (Dec. 14, 1954) (tabling the Draft Code of Offences until aggression was defined); U.N. G.A. Res. 1187 (XII) (11 Dec. 1957) (tabling the Draft Code of Offences for a second time). 15 See U.N. G.A. Res. 688 (VII)( Dec. 20, 1952) (establishing the committee to define aggression). 16 See U.N. G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, at 143, U.N. Doc. A/9631 (1974); see also Benjamin B. Ferencz, Defining International Aggression: the Search for World Peace (1975); M. Cherif Bassiouni & Benjamin B Ferencz, The Crime Against Peace and Aggression: From its Origins to the ICC, in 1 Bassiouni, ICL, supra note 2, at 207; Roger S. Clark, The Crime of Aggression and the International Criminal Court, in 1 Bassiouni, ICL, supra note 2, at 243. 17 Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, S.C. Res. 780, U.N. SCOR, 47th Sess., U.N. Doc. S/RES/780 (1992); see also M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia, in Post-Conflict Justice 429 (M. Cherif Bassiouni ed., 2002). 18 For a history of these efforts, see 2 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: An Article-by-Article Evolution of the Statute from 1994–1998 (2005); Benjamin Ferencz, An International Criminal Court (1980). 19 Report of the International Law Commission, U.N. GAOR, 46th Sess. Supp. No. 10, U.N. Doc. A/46/10 (1991) [hereinafter 1991 Draft Code of Crimes]. The project was renamed from “Code of Offences” to “Code of Crimes.” 20 See Commentaries of the International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, 11 Nouvelles Études Pénales (M. Cherif Bassiouni ed., 1993).



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as discussed below.21 As a result, the ILC produced a new text in 199622 which reduced the earlier twenty-six crimes to only five, using the definitions contained in the statutes of the ICTY and ICTR for three of them, namely, genocide, crimes against humanity, and war crimes. Contemporaneously with that effort, which, regrettably after almost half a century of work produced such meager results, the ILC had also worked on the Draft Principles on State Responsibility, which it completed in 2001.23 But as of 1978, one of the draft articles on State Responsibility, namely Article 19, referred to “international crimes” and “delicts,” albeit without defining them.24 The 2001 adopted Principles of State Responsibility did not, however, retain this draft Article 19.25 The ILC’s work for all these years did not include the formulation of a definition of what constitutes an international crime or an international delict, the terms that it employed in the defunct Draft Article 19. Furthermore, the ILC, which is the UN body for the codification of international law, has not produced criteria for a policy of international criminalization. As discussed below, the international legislative process, which brought about the criminalization of certain categories of individual conduct, has evolved in a haphazard manner. It started in 1815 with the Congress of Vienna which set the foundation for the international protection of cultural property and the abolition of the slave-trade, followed by the incremental elaboration of conventions establishing or recognizing the existence of certain international crimes and refining or expanding earlier conventions. Though there has never been a legislative policy to guide this process, it has nevertheless been an incremental one whose hallmark in certain areas is accretion. Thus, for example, there are sixteen conventions whose penal provisions apply to the category terrorism-related crimes, twenty-three conventions applicable to the category of drug-related crimes, and seventy-one conventions on the regulation of armed conflict (some of them embody customary international law while others do not and are therefore binding only upon their signatory States). But no legislative policy guided this process. Conversely, other areas seem to have remained stagnant. Thus, there is only

21 See infra section 9. 22 Report of the International Law Commission, Draft Code of Crimes Against the Peace and Security of Crimes of Mankind, May 6–July 26, 1996, GAOR Supp. No. 10, U.N. Doc. A/51/10 (1996) [hereinafter 1996 Draft Code of Crimes]. 23 See Report of the International Law Commission, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001, ch. 4, U.N. Doc. A/56/10 and Corr. 1 (2001). 24 See Report of the International Law Commission, 31st Sess, May 14–Aug. 3, 1979, U.N. Doc. A/34/10 (1979); United Nations Codification of State Responsibility (Maria Spinedi & Bruno Simma eds., 1987). 25 See supra note 23.

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one convention on genocide (notwithstanding the need for amending it),26 and no universal convention on the category of “crimes against humanity.”27 Section 3. Criteria for International Criminalization The writings of scholars are uncertain, if not tenuous, as to what they deem to be the criteria justifying the establishment of crimes under international law.28 Moreover, there is a great deal of confusion in the writings of scholars as to what constitutes an international crime, and how these crimes should be referred to. Thus, the literature contains various undefined terms, such as: crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu, transnational crimes, international delicts, jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as “core crimes,” meaning genocide, crimes against humanity, and war crimes.29 Among the reasons for this diversity of labels is the lack of agreement by scholars as to the criteria for international criminalization and the distinctions between categories of international crimes, depending upon the nature of the social interest which is sought to be protected and the harmful consequences sought to be prevented by criminalizing such conduct. For this writer there are five criteria applicable to the policy of international criminalization. They are: (a) the prohibited conduct affects a significant international interest, in particular, if it constitutes a threat to international peace and security; (b) the prohibited conduct constitutes egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity; (c) the prohibited conduct has transnational implications in that it involves or effects more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or

26 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277, reprinted in 45 Am. J. Int’l L. 7 (1951) (Supp.). The Convention in Article 2 defines the protected groups as “national, ethnical, racial or religious”. It thus excludes social and political groups. See William A. Schabas, Genocide in International Law: The Crimes of Crimes (2000); Matthew Lippman, Genocide, in 1 Bassiouni, ICL, supra note 2 at 403. 27 See M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 3–8 (2011) [hereinafter Bassiouni, Crimes Against Humanity]; M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457 (1994). 28 See infra Chapter 1, note 1. 29 See, e.g., 60 Revue International De Droit Pénal (1984). With respect to these core crimes, see M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities, in 1 Bassiouni, ICL, supra note 2, at 493 ; M. Cherif Bassiouni, Introduction to International Humanitarian Law, in 1 Bassiouni, ICL, supra note 2, at 269.



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because the means employed transcend national boundaries; (d) the conduct is harmful to an internationally protected person or interest; and (e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization. But first it is necessary to determine what constitutes an international crime in conventional international law. This can be done on the basis of an empirical study, as was undertaken by this writer.30 Its discussion follows below. Section 4. The Penal Characteristics of ICL Conventions There are ten penal characteristics which, if found even singularly in any convention, are sufficient to characterize the conduct prohibited by the convention as constituting an international crime. These ten penal characteristics are: (1) Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime; (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like; (3) Criminalization of the proscribed conduct; (4) Duty or right to prosecute; (5) Duty or right to punish the proscribed conduct; (6) Duty or right to extradite; (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance); (8) Establishment of a criminal jurisdictional basis; (9) Reference to the establishment of an international criminal court or international tribunal with penal characteristics; (10) No defense of superior orders. On the basis of these penal characteristics, 281 conventions can be identified that contain one or more of the ten penal characteristics mentioned.31 This num30 See M. Cherif Bassiouni, International Criminal Law: Documents Supplement (2000) [hereinafter Bassiouni, ICL Documents]; Bassiouni, ICL Conventions, supra note 12. 31 Previously this writer identified the number of these conventions at 281. Id. The downward revision is based on the fact that a number of related instruments, as described in the text above, had been included, even though these instruments did not specifically contain any of the ten identified penal characteristics. It is a matter of judgment as to whether they can be included through the theory of incorporation by reference or not. It should be noted, however, that some of the conventions included here also do not contain any of these penal characteristics, but other sources of international law applicable to that crime contain such characteristics. This is the case

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ber includes the IMT Charter, the IMTFE Charter, Control Council Law No. 10, the ICTY Statute, the ICTR Statute, and the Rome Statute of the ICC. It could be argued that these statutes are declarative of the existence of international crimes and do not establish or create such crimes. However, in view of the fact that there is some question as to whether some of the provisions of these statutes are exclusively declarative or in part creative of ICL, they have been included herein. There are also numerous related instruments, listed separately in the attached appendix. While these instruments are related to any one of the 27 crimes, they are not in and of themselves creative of the crimes to which they relate. Once identified, these 281 conventions can then be used to classify 27 international crimes.32 Those crimes are: (1) Aggression; (2) Genocide; (3) Crimes against humanity; (4) War crimes; (5) Unlawful possession, use, emplacement, stockpiling and trade of weapons, including nuclear weapons; (6) Nuclear terrorism; (7) Apartheid; (8) Slavery, slave-related practices, and trafficking in human beings; (9) Torture and other forms of cruel, inhuman or degrading treatment; (10) Unlawful human experimentation; (11) Enforced disappearances and extra-judicial executions; (12) Mercenarism; (13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) Aircraft hijacking and unlawful acts against international air safety; (15) Threat and use of force against internationally protected persons and United Nations personnel; (16) Taking of civilian hostages; (17) Use of Explosives; (18) Unlawful use of the mail; (19) Financing of terrorism; (20) Unlawful traffic in drugs and related drug offenses; with respect to aggression, whose 1974 definition adopted by the General Assembly (see G.A. Res. 3314 (XXIX), U.N. GAOR, Supp. No. 31, at 143, U.N. Doc. A/9631 (1974)) does not contain any penal characteristics. But aggression, the successor term to “crimes against peace,” was one of the crimes in the IMT Charter and the IMTFE Statute. 32 It should be noted that many of these categories should be grouped together because of their commonality of protected social interest. This listing reflects the ad hoc and haphazard process of international criminalization which categorizes ICL. The listing is based on the affinity existing between these crimes.



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(21) Organized crime and related specific crimes; (22) Destruction and/or theft of national treasures; (23) Unlawful acts against certain internationally protected elements of the environment; (24) International traffic in obscene materials; (25) Falsification and counterfeiting; (26) Unlawful interference with international submarine cables; and, (27) Corruption and bribery of foreign public officials. As discussed below in this chapter, the evolution of each one of these crimes has been essentially ad hoc with sometimes little or no continuity in legislative policy within a given category and with no connections between the different crimes. The international legislative process has been essentially a hodge-podge accumulation of conventions falling within different crimes, many of which should have been integrated because of their same subject-matter or same protected social interest. This is one of the reasons why there is an unexplainable wide-range of inclusion and exclusion of the ten penal characteristics in the 281 conventions applicable to the 27 crimes. An analysis of the 281 conventions reveals that, cumulatively, they contain only 931 penal characteristics out of a possible maximum of 2,810. Cumulatively, however, because some of these conventions apply to more than one category of crimes, the actual number of penal characteristics is 931. They are by penal characteristic as follows: (1) Explicit or implicit recognition of the proscribed conduct as constituting an international crime, or a crime under international law, or a crime: 71 (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish, or the like: 190 (3) Criminalization of the proscribed conduct: 96 (4) Duty or right to prosecute: 113 (5) Duty or right to punish the proscribed conduct: 129 (6) Duty or right to extradite: 74 (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance in penal proceedings): 98 (8) Establishment of a criminal jurisdictional basis (or theory of criminal jurisdiction or priority in criminal jurisdiction): 101 (9) Reference to the establishment of an international criminal court or an international tribunal with penal characteristics (or prerogatives): 32 (10) Elimination of the defense of superior orders: 27 Ideally, all or most of the ten penal characteristics should appear in every international criminal law convention, but that is clearly not the case. Also, it seems from the incidence of recurrence of these penal characteristics that those crimes

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which contain a significant ideological or political component have the least number of the ten penal characteristics, while those that are devoid of such elements have the largest number of penal characteristics. This is evident, for example, in the former’s case with aggression and in the latter’s case with antidrug conventions. Section 5. The Hierarchy of International Crimes Neither conventions nor the writings of scholars establish a hierarchy among international crimes, except with respect to jus cogens crimes, which have a higher status than those whose prohibitions are not considered peremptory norms of international law.33 Arguably, one can assume that all other international crimes are of equal standing, irrespective of the international interest they seek to protect and/or the international harm they seek to avert. But surely it will be recognized that some of these crimes cause more significant harm to the international community than others. Thus, genocide cannot be deemed equal to international traffic in obscene materials. Because of this, it is, if not necessary then at least useful to establish a ranking of these crimes. As stated above, the five policy elements of internationalization of crimes are the following: (a) the prohibited conduct affects a significant international interest, in particular if it constitutes a threat to international peace and security; (b) the prohibited conduct constitutes an egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity; (c) the prohibited conduct has transnational implications in that it involves or effects more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or because the means employed transcend national boundaries; (d) the conduct is harmful to an internationally protected person or interest; and (e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization. Each one of the crimes and their respective instruments reflects the existence of one or more of these elements. International crimes can be distinguished on other bases, one of these is whether the given offense is: (a) the product of a state action or policy; or (b) the product of individual conduct. Indeed, some international criminal offenses are purely the product of individual conduct committed without implicating a state policy or action. In that respect, a distinction arises between purely individual 33 See infra section 8.



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conduct and individual conduct which is carried out in execution or favoring of a state policy. Moreover, individual acts for or on behalf of a state is attributable to the state under the theory of agency, which is well recognized in international law.34 It is, however, argued that the more serious or significant international crimes, referred to as “core crimes” are genocide, crimes against humanity, and war crimes. Interestingly, the proponents of this view seem to have given up on the inclusion of aggression among the most serious international crimes, probably because of certain major powers opposition to it.35 The distinction between state policy, state action, and purely individually motivated action implicitly embodies the seriousness of the threat and that of the ensuing harm. Thus, genocide and crimes against humanity—which require a state policy or action—are far more dangerous and harmful than individual and group activity, including drug trafficking. Based on the five factors mentioned above, some of the 27 crimes are truly international, others are transnational, others are partly international or transnational, and lastly, some crimes were categorized as international crimes because it was deemed the best way of enhancing their prevention and suppression.36 Such a categorization or classification reflects social values and policy choices. In establishing a hierarchy of international crimes it is helpful to develop different labels for different offenses, as is done in most domestic penal codes. Admittedly, labels are not necessarily descriptive, but their legal consequences, particularly as to penalties, differ.37 The national criminal laws of all legal systems have long found it useful to establish a hierarchy of crimes on the basis of the following factors: (a) the social interest sought to be protected; (b) the harm sought to be averted; (c) the intrinsic seriousness of the violation; (d) the dangerousness of the transgressor manifested by the commission of a given transgression; (e) the degree of general deterrence sought to be manifested; (f ) the policy of criminalization; and (g) the policy choices reflected in the opportunity of criminal prosecution. 34 See, e.g., Ian Brownlie, State Responsibility: System of the Law of Nations 132–58 (1983). 35 See Bassiouni & Ferencz, supra note 16. 36 For example, “torture” does not have an international or a transnational element. 37 The Common Law distinguishes between felonies, misdemeanors, and other violations of municipal ordinances. The civil law systems distinguish between crimes, infractions, and contraventions. Violations falling into one of these categories reflect legal policy and social value judgment concerning the protected interest. However, it is therefore essentially an outcome-oriented distinction because of the consequences that derive from it. These consequences are essentially about penalties.

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As with other legislative policy-oriented choices, a hierarchy of norms is based on objective criteria and/or on subjective value-judgments. Ultimately, they reflect policy. Thus, it is possible to distinguish the 27 international crimes on the basis of the factors identified above, and to place these crimes in categories which reflect their hierarchy. The consequence of placing a given ICL violation in any category should be reflected in the crimes listed in each of these three categories. But this means that penalties should be ascribed to these crimes, whereas no international convention provides for penalties. This is therefore a subject that the codification of ICL will have address in the future. Some international crimes are part of jus cogens. They are typically characterized by the fact that their commission cannot occur without state action or a state-favoring policy. But that is not always the case as is evidenced with piracy,38 slavery and slave related practices, and trafficking in human beings,39 as these international crimes are also deemed part of jus cogens. Another way of classifying international crimes is based on their affinity as it relates to the nature of the conduct and the harmful potential for results. This category includes: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)

aggression; genocide; crimes against humanity; war crimes;40 Unlawful possession, use, pmplacement, stockpiling and trade of weapons, including nuclear weapons; nuclear terrorism; apartheid; slavery, slave-related practices, and trafficking in human beings; torture and other forms of cruel, inhuman or degrading treatment or ­punishment; unlawful human experimentation; enforced disappearance and extrajudicial executions; mercenarism;

Other crimes, some of which may in the future be considered as jus cogens, can be placed in another category. This is the case with respect to acts of a terrorviolent nature or contrary to fundamental values. These crimes include:

38 Sundberg, supra note 2. 39 Bassiouni, Enslavement, in 1 Bassiouni, ICL, supra note 3. 40 With respect to the 1949 Geneva Convention and the Protocol I, this includes “grave breaches,” and also violations of Common Article 3 in the 1949 Geneva Convention and Protocol II.



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(13) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (14) aircraft hijacking and unlawful acts against international air safety; (15) threat and use of force against internationally protected persons and United Nations Personnel; (16) taking of civilian hostages; (17) use of explosives (18) unlawful use of the mail; (19) financing of terrorism; (20) unlawful traffic in drugs and related drug offenses; (21) organized crime and related specific crime; (22) destruction and/or theft of national treasures; (23) unlawful acts against certain internationally protected elements of the environment. Other crimes, clearly of a lesser international interest, can be placed in yet a third category. These crimes include: (24) (25) (26) (27)

international traffic in obscene materials; falsification and counterfeiting; unlawful interference with international submarine cables; corruption and bribery of foreign public officials.

Any categorization is necessarily judgmental and differences of opinion can affect the choice of criteria selected for such a categorization, their appraised social and human significance, and policy choices based on other value judgments.41 Section 6. The General Categories of International Crimes Regardless of the categories suggested above, the 27 previously mentioned crimes can be grouped under the following headings reflecting the prevalent protected

41 In the literature on this subject, some authors have distinguished between international infractions and transnational crimes, and others have distinguished between international crimes and core crimes. The ILC in the 1980 Draft Articles on State Responsibility distinguished between international crimes and international delicts. See International Law Commission, Draft Articles on State Responsibility, U.N. Doc. A/CN.4/L.327/Add.2, A/CN.4/SR.1692, art. 19, ¶¶ 10 et. seq. (1981). This writer, in previous editions of this book, proposed a distinction between international crimes, international delicts, and international infractions. This piece, however, abandons such terminology as often confusing and only occasionally useful. What follows is an attempt to bring added clarity to the field by outlining the crimes—and the conventions creating those crimes—contained within each category. See infra notes 43–133.

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interest embodied in each crime, even though some crime categories protect multiple interests. They are: (1) Protection of International Peace and Security; (2) Protection of Human Interests, which can be subdivided into (a) Protection of Human Interests Not Associated with Other Internationally Protected Interests, and (b) Protection of Human Interests Associated with Other ­Internationally Protected Interests; and (3) Protection of Social and Cultural Interests. What follows is essentially an inventory of international crimes reflected in the international instruments included with each crime. 6.1. Protection of International Peace and Security 6.1.1. Aggression This crime contains 51 relevant instruments dating from 1899 to 1998, and another eight related materials, but it should be noted that most of these instruments lack any of the ten required penal characteristics discussed above. A number of the treaties adopted between 1919 and 1988 that have been classified, in accordance with the methodology employed, with other crimes.42 The writings of scholars for millennia have posited rules for lawful and unlawful use of force. The earlier notions of “just” and “unjust” wars gave way to the abolitionist view of war embodied in the Charter of the United Nations, ratified on October 24, 1945.43 However, no definition of aggression was agreed upon by the international community until the UN General Assembly consensus resolution on the Definition of Aggression44 was adopted in 1974. Even so, this resolution is not a binding international instrument and its legal relevance rests in its interpretation in pari materia with the obligations of the Charter of the United Nations, and as part of customary international law. In that respect, it should be noted that the Security Council did not rely in its various resolutions under Chapter VII on the 1974 resolution. However, the ILC’s Draft Code of Crimes Against the Peace and Security of Mankind45 does rely on the 1974 consensus resolution. There is so far no specialized convention that specifically declares aggression to be a crime under international law. The Second Hague Peace Conference,

42 See Bassiouni, ICL Conventions, supra note 12, at 242–43. 43 U.N. Charter, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945. 44 United Nations General Assembly, Definition of Aggression, G.A. Res. 3314 (XXIX), 29 U.N. G.A. Supp. No. 31, at 142, U.N. Doc. ONU A/9631 (1974). 45 1996 Draft Code of Crimes, supra note 22.



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October 18, 1907,46 like the First Hague Peace Conference, July 29, 1899,47 produced a number of instruments designed to prevent war, but they have only a limited penal relevance to the enforcement of prohibitions against the resort to war. Thus, the legal record of the period up to the end of World War I is limited. The period between World War I and World War II produced two relevant instruments, the Treaty of Mutual Guarantee (Treaty of Locarno), October 16, 1925,48 and the General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Peace Pact or Pact of Paris), August 27, 1928.49 The efforts to prosecute the Kaiser as the initiator of World War I under the Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919,50 were for naught. During and after World War II, the Allies expressed their commitment to prosecute and punish the perpetrators of that war in the Declaration of German Atrocities, November 1, 1943,51 and then carried out their commitment in the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Charter), August 8, 1945,52 and in the Charter of the International Military Tribunal for the Far East, January 19, 1946.53 This led to 46 Convention for the Pacific Settlement of International Disputes [Second Hague, I], 18 October 1907, 36 Stat. 2199, T.S. No. 536, 3 Martens Nouveau Recueil (ser. 3) 360 (entered into force Jan. 26, 1910); Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts [Second Hague, II], Oct. 18, 1907, 36 Stat. 2241, 3 Martens Nouveau Recueil (ser. 3) 414 (entered into force Jan. 26, 1910); Convention Relative to the Opening of Hostilities [Second Hague, III], Oct. 18, 1907, 36 Stat. 2259, 3 Martens Nouveau Recueil (ser. 3) 437 (entered into force Jan. 26, 1910); Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [Second Hague, V], Oct. 18, 1907, 36 Stat. 2310, 205 Consol. T.S. 299, 24 Martens Nouveau Recueil (ser. 3) 504 (entered into force Jan. 26, 1910); Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities [Second Hague, VI], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 533 (entered into force Jan. 26, 1910); Convention Relative to the Conversion of Merchant-ships into Warships [Second Hague, VII], Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 557 (entered into force Jan. 26, 1910); Convention Concerning the Rights and Duties of Neutral Powers in Naval War [Second Hague, XIII], Oct. 18, 1907, 36 Stat. 2415, 205 Consol. T.S. 395, 3 Martens Nouveau Recueil (ser. 3) 713 (entered into force Jan. 26, 1910; entered into force with respect to the United States Feb. 1, 1910). 47 Convention for the Pacific Settlement of International Disputes [First Hague, I], July 29, 1899, 32 Stat. 1779, T.S. No. 392, 26 Martens Nouveau Recueil (ser. 2) 920 (entered into force Sept. 4, 1900). 48 Treaty of Mutual Guarantee [Treaty of Locarno], Oct. 16, 1925, 54 L.N.T.S. 289, 16 Martens Nouveau Recueil (ser. 3) 9 (entered into force Sept. 14, 1926). 49 General Treaty for Renunciation of War as an Instrument of National Policy [Kellogg-Briand Peace Pact or Pact of Paris], Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57, 2 Bevans 732 (entered into force July 24, 1929), reprinted in 22 Am. J. Int’l L. 171–73 (Supp. 1928). 50 Treaty of Peace Between the Allied and Associated Powers and Germany [Treaty of Versailles], June 28, 1919, 11 Martens Nouveau Recueil (ser. 3) 323 (entered into force Jan. 10, 1920). 51 Declaration of German Atrocities [Moscow Conference of Foreign Secretaries, Secret Protocol, Annex 10], Nov. 1, 1943, 1943 For. Rel.(I) 749 at 768, 3 Bevans 816 at 834 (entered into force Nov. 1, 1943). 52 See Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. 53 See Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20, as amended Apr. 26, 1946, 4 Bevans 27 [hereinafter IMTFE Charter].

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the Nuremberg and Tokyo trials. In these prosecutions, the count of “crimes against peace” was the most difficult to define due to the lack of legal specificity with respect to the punishable prohibition against the initiation and resort to war. Some of these instruments aimed at prohibiting or punishing aggression are linked to war crimes. Article 5 of the ICC includes aggression within the Court’s jurisdiction, but exercise of such jurisdiction is subordinated to the definition of aggression, which the Diplomatic Conference did not achieve. Through the efforts of the Preparatory Committee and the Special Working Group on the Crime of Aggression (SWGCA), States Parties reached a consensus on an accepted definition of the crime of aggression at the 2010 Kampala Review Conference.54 The following expresses the elements as defined by the ICC concerning the crime of aggression:55 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. Elements 1. The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. [footnote 75: With respect to an act of aggression, more than one person may be in a position that meets these criteria.] 3. The act of aggression—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—was committed. 4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

54 Amendments to the Rome Statute of the International Criminal Court art. 8(2), June 11, 2010, Depository Notification C.N. 651.2010.Treatites-8. 55 Rome Statute of the International Criminal Court, July 17, 1998, art. 8bis, 2187 U.N.T.S. 3 (entered into force July 1, 2002) [hereinafter ICC Statute]; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B; Res. RC/Res. 6, U.N. Doc. RC/Res. 6 (June 11, 2010).



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2. For the purpose of paragraph 1, “act of aggression” means 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. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f ) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 6.2. Protection of Human Interests Not Associated with Other Internationally Protected Interests 6.2.1. Genocide There is only one Convention on Genocide, adopted in 1948,56 but other relevant instruments include: the Statute of the International Criminal Tribunal for

56 Convention on the Prevention and Punishment of the Crime of Genocide, supra note 26; see Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, B.U. Int’l L.J. 1 (1984); Lippman, supra note 26; Schabas, supra note 26.

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the former Yugoslavia,57 the Statute of the International Criminal Tribunal for Rwanda,58 the 1996 ILC Draft Code of Crimes,59 and the 1998 Statute of the International Criminal Court.60 There are also fifteen other applicable instruments from 1945 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.61 Through an outgrowth of World War II atrocities, one that was presumably meant to encompass crimes against humanity, genocide is addressed in a single specialized convention that has never been amended or supplemented, notwithstanding the pressing need to do so. Its main weaknesses are: (a) the protected groups do not include social or political groups (only ethnic, racial, religious, and national groups are mentioned in the Convention); (b) the nationality of a protected group should not be understood as the totality of the group in a universal sense, but in a relative contextual sense; and (c) the specific intent requirement is too stringent for certain categories of offenders. Neither the ILC’s 1996 Draft Code of Crimes nor the 1998 ICC Statute address the weaknesses of the 1948 Genocide Convention. Unlike other crimes in which a historical evolution can be witnessed through a succession of international instruments that expand or refine the terms of earlier instruments, genocide remains a single-instrument crime. Considering that a variety of genocide-like events, some of massive proportions, have taken place since World War II,62 it is curious that the lack of political response to the problems of normative gaps has not been addressed by the international community. One explanation may well be that the convention failed to create a permanent structure that might have perpetuated institutional interest in furthering legislative development. Certainly the experiences in the crimes of slavery, slave-related practices, trafficking in human beings and drug offences demonstrate that permanent bureaucratic structures tend to enhance legislative developments. But, as the ICC Statute demonstrates, governments are not willing to accept the legal consequences that would derive from a text more expansive than the current Genocide Convention. Recent ICTR jurisprudence has been consistent

57 Statute of the International Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1159 [hereinafter ICTY Statute]. 58 Statute of the International Criminal Tribunal for Rwanda, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute]. 59 See International Law Commission, Report of the Commission to the General Assembly on the work of its forty-eighth session, ¶ 50, in [1996] 2 Y.B. Int’l Law Comm’n 17. 60 See ICC Statute, supra note 55; see also M. Cherif Bassiouni, The Statute of the International Criminal Court (1998) [hereinafter Bassiouni, Statute of the ICC]. 61  See Bassiouni, ICL Conventions, supra note 12, at 266–67. 62 See Samantha Powers, A Problem from Hell: America and the Age of Genocide (2002).



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with respect to genocide-related crimes. The Appeals Chamber released its opinion in the case of three journalists who were charged with incitement to commit genocide as “aiding and abetting in genocide.”63 The ICTY has yet to convict anyone of the crime of genocide even though it has affirmed that genocide was committed at Srebrenica. It should also be noted that there are overlaps between genocide, crimes against humanity, and war crimes, but they are nowhere addressed.64 Genocide is deemed a jus cogens crime. The following expresses the elements as defined by the ICC concerning genocide:65 For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; Elements 1. The perpetrator killed one or more persons. [footnote 2: The term “killed” is interchangeable with the term “caused death”.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

63 William A. Schabas, International Criminal Tribunals: A Review of 2007, 6 Nw. J. Int’l Hum. Rts. 382, 392 (2008) (citing Nahimana v. Prosecutor, Case No. ICTR 99–52–A, Appeals Judgment, ¶ 986 (Nov. 28, 2007)). 64 See Bassiouni, ICL Documents, supra note 30; Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 Melbourne J. Int’l L. 1, 2 (2002); Carl-Friedrich Stuckenberg, Multiplicity of Offences: Concursus Delictorum, in International and National Prosecution of Crimes Under International Law (Horst Fischer, Claus Kress & Rold Lüder eds., 2002). 65 ICC Statute, supra note 55, art. 6; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B ; see 1 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text 204–06 (2005).

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(b) Causing serious bodily or mental harm to members of the group; Elements 1. The perpetrator caused serious bodily or mental harm to one or more persons. [footnote 3: This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Elements 1. The perpetrator inflicted certain conditions of life upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part. [footnote 4: The term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.] 5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (d) Imposing measures intended to prevent births within the group; Elements 1. The perpetrator imposed certain measures upon one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The measures imposed were intended to prevent births within that group.



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5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (e) Forcibly transferring children of the group to another group. Elements 1. The perpetrator forcibly transferred one or more persons. [footnote 5: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.] 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The transfer was from that group to another group. 5. The person or persons were under the age of 18 years. 6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years. 7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. 6.2.2. Crimes against Humanity There is no specific convention dealing with crimes against humanity, but this crime contains 11 relevant instruments from 1945 to 1998. There are also fortyone other applicable instruments from 1943 to 1993 that have been classified, in accordance with the methodology employed, with other crimes.66 The acts covered under other crimes—such as torture, slavery, slave-related practices, trafficking in human beings, and apartheid—are also included in this crime. This crime was originally established in Article 6(c) and Article 5(c) of the Charters of the International Military Tribunal at Nuremberg67 and International

66 See Bassiouni, ICL Conventions, supra note 12, at 281–84. 67 IMT Charter, supra note 52.

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Military Tribunal for the Far East, respectively.68 It was also included in Article II(c) of Control Council Law No. 10.69 Subsequent to the Nuremberg and Tokyo trials, the General Assembly adopted a resolution entitled Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, December 11, 1946.70 The International Law Commission removed the nexus between this crime and the initiation and conduct of war (war crimes), which was required by Article 6(c) of the IMT Charter. But these two instruments are not legally binding qua. Furthermore, these texts regrettably lack the specificity required by the principles of legality. The same criticism can be leveled at the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, July 15, 1996, which lacks specificity in elements of the offense and its penalties. The crime of genocide was intended to embody crimes against humanity, but it fails to do so, even though there is an overlap between the two crimes. It should be noted, however, that both the Yugoslavia and Rwanda Statutes of their respective international tribunals71 include this crime category and define it in a way that is at variance with the definition in Article 6(c) of the IMT Nuremberg Charter. Furthermore, the ICC Statute includes crimes against humanity in Article 7, but it has changed its definition to make it both more specific and less restrictive.72 The overlaps between genocide, crimes against humanity, and war crimes, are, however, nowhere addressed.73 Crimes against humanity are deemed jus cogens crimes. The following expresses the elements as defined by the ICC concerning crimes against humanity:74 68 IMTFE Charter, supra note 53. 69 See Control Council Law No. 10, reprinted in Benjamin B. Ferencz, An International Criminal Court, A Step Toward World Peace: A Documentary History and Analysis 488 (1980). 70 United Nations General Assembly, Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, 1st Sess., U.N. Doc. A/236 (Dec. 11, 1946). 71 ICTY Statute, supra note 57, at art. 5; ICTR Statute, supra note 58, at art. 3. 72 See William A. Schabas, An Introduction to the International Criminal Court 22 (2001); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 128 (2002); David Donat-Cattin, Crimes Against Humanity, in The International Criminal Court: Comments on the Draft Statute 49 (Flavia Lattanzi ed., 1998); Darryl Robinson, The Elements for Crimes Against Humanity, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 57 (Roy S. Lee ed., 2001); Andreas Zimmerman, Crimes Within the Jurisdiction of the Court, in Commentary on the Rome Statute of the International Criminal Court 97, 101 (Otto Triffterer ed., 1999). 73 See Bassiouni, ICL Documents, supra note 30. 74 ICC Statute, supra note 55, art. 7; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B ; see 1 M. Cherif Bassiouni, The Legislative History of The International Criminal Court: Introduction, Analysis, And Integrated Text 206–15 (2005).



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1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; Elements 1. The perpetrator killed one or more persons. [footnote 7: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.] 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population. (b) Extermination; Elements 1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population. [footnote 8: The conduct could be committed by different methods of killing, either directly or indirectly.] [footnote 9: The infliction of such conditions could include the deprivation of access to food and medicine.] 2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population. [footnote 10: 10 The term “as part of” would include the initial conduct in a mass killing.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (c) Enslavement; Elements 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 11: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of

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1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian ­population. (d) Deportation or forcible transfer of population; Elements 1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. [footnote 12: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.] [ footnote 13: “Deported or forcibly transferred” is interchangeable with “forcibly displaced”] 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. 3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (e) Imprisonment or other severe deprivation of physical liberty; Elements 1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. 2. The gravity of the conduct was such that it was in violation of fundamental rules of international law. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.



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(f ) Torture; Elements [footnote 14: It is understood that no specific purpose need be proved for this crime.] 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were in the custody or under the control of the perpetrator. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Elements—Crime against Humanity of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote15: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [ footnote 16: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements of article 7 (1) (g)-3, 5 and 6.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Sexual Slavery [footnote 17: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.]

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1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 18: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, an Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.



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Elements—Crime against Humanity of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 19: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 20: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. Elements—Crime against Humanity of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Elements 1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. [footnote 21: This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.] 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

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3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court. [footnote 22: It is understood that no additional mental element is necessary for this element other than that inherent in element 6.] 5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (i) Enforced disappearance of persons; Elements [footnote 23: Given the complex nature of this crime, it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose.] [footnote 24: This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute.] 1. The perpetrator: (a) Arrested, detained or abducted one or more persons [footnote 25: The word “detained” would include a perpetrator who maintained an existing detention.] [footnote 26: It is understood that under certain circumstances an arrest or detention may have been lawful.]; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. 2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 3. The perpetrator was aware that: [footnote 27: This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction to the Elements of Crimes.] (a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons [footnote 28: It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place.]; or (b) Such refusal was preceded or accompanied by that deprivation of freedom.



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4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization. 5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization. 6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time. 7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (j) The crime of apartheid; Elements 1. The perpetrator committed an inhumane act against one or more persons. 2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts. [footnote 29: It is understood that “character” refers to the nature and gravity of the act.] 3. The perpetrator was aware of the factual circumstances that established the character of the act. 4. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups. 5. The perpetrator intended to maintain such regime by that conduct. 6. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 7. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Elements 1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. 2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute. [footnote 30: It is understood that “character” refers to the nature and gravity of the act.] 3. The perpetrator was aware of the factual circumstances that established the character of the act.

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4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that



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deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. 6.2.3. War Crimes The specific crime of war crimes contains 71 relevant instruments dating from 1854 to 1998. There are also thirty-five other applicable instruments from 1868 to 1996 that have been classified, in accordance with the methodology employed, under other crimes.75 In addition, the customary regulation of armed conflict applies to this subject. Some aspects of custom have been codified and are therefore included in the instruments listed herein. The reader should, however, be mindful of the distinction between the conventional and customary regulation of armed conflict. Of all the international crimes, this crime has the largest number of pertinent and specific instruments covering a wide range of prohibitions and regulations, the violations of which require prosecution and punishment, as well as the obligations described by other penal characteristics. Many of these instruments specifically embody, codify, or evidence customary international law (e.g., Convention with Respect to the Laws and Customs of War on Land (First Hague, II), July 29, 1899;76 Regulations Respecting the Laws and Customs of War on Land;77 Convention Respecting the Laws and Customs of War on Land (Second Hague, IV), October 18, 1907;78 and Regulations Respecting the Laws and Customs of War on Land).79 Enforcement of these prohibitions, though not always consistent or uniform, has nonetheless constituted the most persistent and reliable record of prosecution and punishment of violators in the history of international criminal law. Most of the instruments contained in this category have been drafted with sufficient clarity and specificity, and most contain provisions clearly indicating their penal characteristics.

75 See Bassiouni, ICL Conventions, supra note 12, at 501–04. 76 Convention with Respect to the Laws and Customs of War on Land [First Hague, II], July 29, 1899, 32 Stat. 1803, 1 Bevans 247. 77 Regulations Respecting the Laws and Customs of War on Land, T.S. No. 539, 1 Bevans 643. 78 Convention Respecting the Laws and Customs of War on Land [Second Hague, IV], supra note 46. 79 Regulations Respecting the Laws and Customs of War on Land, supra note 77.

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The four Geneva Conventions of 194980 and their two Additional Protocols81 are the most comprehensive codifications of applicable rules and regulations, with the most specific and wide-ranging penal characteristics of any other category of international crime. The so-called “Law of Geneva” overlaps with the so-called “Law of The Hague,” with much of the latter having been incorporated into the former and vice-versa. The “Law of Geneva” is deemed, to a large extent, to have become custom. It should be noted that this crime category is included in the Statutes of the Yugoslavia and Rwanda international tribunals,82 as well as in the jurisdictional competence of the ICC.83 Traditionally, unlawful use of weapons has been included in the category of war crimes. However, for the sake of categorizing the differences between conduct violative of the rules and regulations of armed conflict and prohibitions against unlawful use of certain weapons in times of either war or peace, the latter are placed in a separate category that follows. The unauthorized use of permissible weapons is, of course, a war crime, and remains in this category of crime.84 War crimes are deemed jus cogens. The overlap between war crimes, genocide, and crimes against humanity is nowhere addressed.85 The following expresses the elements as defined by the ICC concerning war crimes:86 80 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, 4 Bevans 853; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S 85; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. 81 United Nations, Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 [1977 Protocol I], U.N. Doc. A/32/144 (1977); United Nations, Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [1977 Protocol II], U.N. Doc. A/32/144 (1977). 82 See ICTY Statute, supra note 57, at arts. 2, 3; ICTR Statute, supra note 58, at art. 4. 83 See ICC Statute, supra note 55, at art. 8; Schabas, supra note 72, at 22; Sadat, supra note 72, at 160; Herman Von Hebel, The Elements of War Crimes, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 109 (Roy S. Lee ed., 2001); Zimmerman, supra note 72, at 102. 84 See Bassiouni, International Humanitarian Law, supra note 1; Droit des Conflits Armés, (Dietrich Schindler & Jiří Toman eds., 1996); M. Cherif Bassiouni, The Regulation, Control, and Prohibition of the Use of Certain Weapons in the Context of War, in 1 Bassiouni, ICL, supra note 2, at 377. 85 See supra note 30. 86 ICC Statute, supra note 55, art. 8; Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st Sess, New York, Sept. 3–10, 2002, ICC-ASP/1/3, part II-B; see 1 M. Cherif Bassiouni, The Legislative History Of The International Criminal Court: Introduction, Analysis, And Integrated Text 215–44 (2005).



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1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; Elements 1. The perpetrator killed one or more persons. [footnote 31: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.] 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. [footnote 32: This mental element recognizes the interplay between articles 30 and 32. This footnote also applies to the corresponding element in each crime under article 8 (2) (a), and to the element in other crimes in article 8 (2) concerning the awareness of factual circumstances that establish the status of persons or property protected under the relevant international law of armed conflict.] [footnote 33: With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).] 4. The conduct took place in the context of and was associated with an international armed conflict. [footnote 34: The term “international armed conflict” includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a).] 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Torture or inhuman treatment, including biological experiments; Elements—War Crime of Torture [footnote 35: As element 3 requires that all victims must be “protected persons” under one or more of the Geneva Conventions of 1949, these elements do not include the custody or control requirement found in the elements of article 7 (1)(e).] 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

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2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 4. The perpetrator was aware of the factual circumstances that established that protected status. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Inhuman Treatment 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Biological Experiments 1. The perpetrator subjected one or more persons to a particular biological experiment. 2. The experiment seriously endangered the physical or mental health or integrity of such person or persons. 3. The intent of the experiment was non-therapeutic and it was neither justified by medical reasons nor carried out in such person’s or persons’ interest. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Wilfully causing great suffering, or serious injury to body or health;



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Elements 1. The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; Elements 1. The perpetrator destroyed or appropriated certain property. 2. The destruction or appropriation was not justified by military necessity. 3. The destruction or appropriation was extensive and carried out wantonly. 4. Such property was protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; Elements 1. The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of a hostile power. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict.

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5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Elements 1. The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Unlawful deportation or transfer or unlawful confinement; Elements—War Crime of Unlawful Deportation and Transfer 1. The perpetrator deported or transferred one or more persons to another State or to another location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Unlawful Confinement 1. The perpetrator confined or continued to confine one or more persons to a certain location. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict.



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5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) Taking of hostages. Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 5. The perpetrator was aware of the factual circumstances that established that protected status. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Elements 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

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Elements 1. The perpetrator directed an attack. 2. The object of the attack was civilian objects, that is, objects which are not military objectives. 3. The perpetrator intended such civilian objects to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Elements 1. The perpetrator launched an attack. 2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the



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natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. [footnote 36: The expression “concrete and direct overall military advantage” refers to a military advantage that is ­foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.] 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. [footnote 3: As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.] 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Elements [footnote 38: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator attacked one or more towns, villages, dwellings or buildings. 2. Such towns, villages, dwellings or buildings were open for unresisted occupation. 3. Such towns, villages, dwellings or buildings did not constitute military objectives. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

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Elements 1. The perpetrator killed or injured one or more persons. 2. Such person or persons were hors de combat. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; Elements—War Crime of Improper Use of a Flag of Truce 1. The perpetrator used a flag of truce. 2. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator. 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 39: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of a Flag, Insignia, or Uniform of the Hostile Party 1. The perpetrator used a flag, insignia or uniform of the hostile party. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict while engaged in an attack. 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 40: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict.



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7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of a Flag, Insignia, or Uniform of the United Nations 1. The perpetrator used a flag, insignia or uniform of the United Nations. 2. The perpetrator made such use in a manner prohibited under the international law of armed conflict. 3. The perpetrator knew of the prohibited nature of such use. [footnote 41: This mental element recognizes the interplay between article 30 and article 32. The “should have known” test required in the other offences found in article 8 (2) (b) (vii) is not applicable here because of the variable and regulatory nature of the relevant prohibitions.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Improper Use of the Distinctive Emblems of the Geneva Conventions 1. The perpetrator used the distinctive emblems of the Geneva Conventions. 2. The perpetrator made such use for combatant purposes in a manner prohibited under the international law of armed conflict. [footnote 42: “Combatant purposes” in these circumstances means purposes directly related to hostilities and not including medical, religious or similar activities.] 3. The perpetrator knew or should have known of the prohibited nature of such use. [footnote 43: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.] 4. The conduct resulted in death or serious personal injury. 5. The perpetrator knew that the conduct could result in death or serious personal injury. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

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Elements 1. The perpetrator: (a) Transferred, directly or indirectly, parts of its own population into the territory it occupies [footnote 44: The term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law.]; or (b) Deported or transferred all or parts of the population of the occupied territory within or outside this territory. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Elements [footnote 45: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;



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Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interest. [footnote 46: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same element for article 8 (2) (b) (x)‑2.] 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Medical or Scientific Experiments 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of an adverse party. 5. The conduct took place in the context of and was associated with an international armed conflict. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; Elements 1. The perpetrator invited the confidence or belief of one or more persons that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict.

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2. The perpetrator intended to betray that confidence or belief. 3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xii) Declaring that no quarter will be given; Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of a hostile party. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not justified by military necessity. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;



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Elements 1. The perpetrator effected the abolition, suspension or termination of admissibility in a court of law of certain rights or actions. 2. The abolition, suspension or termination was directed at the nationals of a hostile party. 3. The perpetrator intended the abolition, suspension or termination to be directed at the nationals of a hostile party. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; Elements 1. The perpetrator coerced one or more persons by act or threat to take part in military operations against that person’s own country or forces. 2. Such person or persons were nationals of a hostile party. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xvi) Pillaging a town or place, even when taken by assault; Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. [footnote 47: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.] 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xvii) Employing poison or poisoned weapons;

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Elements 1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Elements 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties. [footnote 48: Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; Elements 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are



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inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; Elements [Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.] (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. [footnote 49: For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.] 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; Elements—War Crime of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote 50: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [footnote 51: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or

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agerelated incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Slavery [footnote 52: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.] 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 53: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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Elements—War Crime of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an international armed conflict. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 54: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 55: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

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Elements 1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict. 2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; Elements 1. The perpetrator deprived civilians of objects indispensable to their survival. 2. The perpetrator intended to starve civilians as a method of warfare. 3. The conduct took place in the context of and was associated with an international armed conflict. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.



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Elements 1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; Elements—War Crime of Murder 1. The perpetrator killed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. [footnote 56: The term “religious personnel” includes those non-confessional noncombatant military personnel carrying out a similar function.] 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interests.

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3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Cruel Treatment 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Torture 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Elements 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. [footnote 57: For this crime, “persons” can include dead persons. It



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is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.] 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 4. The perpetrator was aware of the factual circumstances that established this status. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Taking of hostages; Elements 1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Elements 1. The perpetrator passed sentence or executed one or more persons.[footnote 58: The elements laid down in these documents do not address the different forms of individual criminal responsibility, as enunciated in articles 25 and 28 of the Statute.]

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2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 3. The perpetrator was aware of the factual circumstances that established this status. 4. There was no previous judgement pronounced by a court, or the court that rendered judgement was not “regularly constituted”, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law. [footnote 59: With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial.] 5. The perpetrator was aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Elements [footnote 60: As amended by resolution RC/Res. 5.] 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Elements 1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Elements 1. The perpetrator directed an attack. 2. The object of the attack was personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. 3. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack. 4. Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict. 5. The perpetrator was aware of the factual circumstances that established that protection. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and

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places where the sick and wounded are collected, provided they are not military objectives; Elements [footnote 61: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.] 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (v) Pillaging a town or place, even when taken by assault; Elements 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. [footnote 62: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.] 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; Elements—War Crime of Rape 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator



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with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [footnote 63: The concept of “invasion” is intended to be broad enough to be gender-neutral.] 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. [footnote 64: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements in article 8 (2) (e) (vi)-3, 5 and 6.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Slavery [footnote 65: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.] 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. [footnote 66: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.] 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

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2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Forced Pregnancy 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. 2. The conduct took place in the context of and was associated with an armed conflict not of an international character. 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Enforced Sterilization 1. The perpetrator deprived one or more persons of biological reproductive capacity. [footnote 67: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.] 2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent. [footnote 68: It is understood that “genuine consent” does not include consent obtained through deception.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Sexual Violence 1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.



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4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; Elements 1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years. 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; Elements 1. The perpetrator ordered a displacement of a civilian population. 2. Such order was not justified by the security of the civilians involved or by military necessity. 3. The perpetrator was in a position to effect such displacement by giving such order. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (ix) Killing or wounding treacherously a combatant adversary; Elements 1. The perpetrator invited the confidence or belief of one or more combatant adversaries that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict. 2. The perpetrator intended to betray that confidence or belief.

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3. The perpetrator killed or injured such person or persons. 4. The perpetrator made use of that confidence or belief in killing or injuring such person or persons. 5. Such person or persons belonged to an adverse party. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (x) Declaring that no quarter will be given; Elements 1. The perpetrator declared or ordered that there shall be no survivors. 2. Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors. 3. The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Elements—War Crime of Mutilation 1. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage. 2. The conduct caused death or seriously endangered the physical or mental health of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons’ interest. [footnote 69: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the similar element in article 8 (2) (e) (xi)-2.]



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4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Elements—War Crime of Medical or Scientific Experiments 1. The perpetrator subjected one or more persons to a medical or scientific experiment. 2. The experiment caused the death or seriously endangered the physical or mental health or integrity of such person or persons. 3. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest. 4. Such person or persons were in the power of another party to the conflict. 5. The conduct took place in the context of and was associated with an armed conflict not of an international character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; Elements 1. The perpetrator destroyed or seized certain property. 2. Such property was property of an adversary. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not required by military necessity. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiii) Employing poison or poisoned weapons; Elements [footnote 70: As amended by resolution RC/Res. 5; see Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 (International Criminal Court publication, RC/11), part II.]

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1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Elements [footnote 71: Ibid.] 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties. [footnote 72: Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.] 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. Elements [footnote 73: As amended by resolution RC/Res. 5; see Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 (International Criminal Court publication, RC/11), part II.] 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.



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(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 6.2.4. Unlawful Possession, Use, Emplacement Stockpiling and Trade of Weapons, including Nuclear Weapons Related to war crimes, the crime of unlawful possession, use, and emplacement of weapons contains 61 relevant instruments adopted between 1868 and 2012.87 Many of these conventions embody customary law, but the concept is broader than the specifics contained in these conventions. It should also be noted that some of the norms applicable to this crime have a separate and specific origin, scope, and goal from war crimes. Furthermore, some of these norms apply only in time of war while others apply at all times. More specifically, some conventions apply to use, while others apply to possession. For a variety of reasons, instruments relating to nuclear weapons are not included here, as possession of such weapons is not yet prohibited, though arguably the prohibition of their first use may be an emerging custom. Lastly, some of these conventions apply exclusively to the prohibition of emplacing weapons in certain areas without regard to the legality of the possession or use of the weapon in question. “Unlawful use of weapons” means employment of weapons whose use is prohibited by an international instrument. This is to be distinguished from unauthorized use of permissible weapons. While both crimes have historically been deemed war crimes, the former is discussed separately here, because these weapons are deemed unlawful, irrespective of the manner in which they are used. Most of the prohibitions in the instruments contained here are specifically, or by construction, restricted to the context of war, thus making their use a war crime. However, they are classified separately because many scholars view some of these prohibitions as absolute without regard to the context of their application. More recently, the Chemical Weapons Convention88 and the Biological

87 See Bassiouni, ICL Conventions, supra note 12, at 597–99. 88 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 32 I.LM. 800, January 13, 1993; see also Barry Kellman, Manual for National Implementation of the Chemical Weapons Convention (2d ed. 1998).

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Weapons Convention89 prohibit the development, stockpiling, and use of those weapons at all times and in all contexts. The Convention on the Physical Protection of Nuclear Material90 similarly provides for the control of highly dangerous weapons. The convention is an outgrowth of the world community’s effort to control, regulate, and limit access to and use of nuclear weapons, but it also has an environmental component, in that the protection of nuclear materials prevents harm to the environment. In fact, unlike the other crimes in this category, the primary aim of this convention is the protection of the environment and the prevention of theft, rather than weapons control by states. Over the past fifteen years there has been an increase in international activity to limit the possession of particular weapons, particularly those that have a disproportionate effect on civilian populations. Several important international treaties have been negotiated during that period, including the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-­Personnel Mines and on their Destruction [Ottawa Treaty]91 and the Convention on Cluster Munitions.92 In 2012 the Arms Trade Treaty,93 a comprehensive attempt to regulate the manufacture and trade of conventional weapons was negotiated in New York City, but the assembled states were unable to reach agreement on a final text. Regional arms trade treaties have been adopted however, covering Southern Africa, the Horn of Africa and the Great Lakes Region, Central Africa, and West Africa. Because of the distinction between the contexts of war and peace, the use of certain weapons may be deemed an international crime when used in time of war, but not when used in time of peace. However, the distinction is gradually eroding in contemporary legal doctrine. There are also a number of instruments prohibiting the emplacement of certain weapons in particular areas. The rationale for these prohibitions is to enhance the peace and security of humankind, and the instruments are thus related to the preservation of peace and the prohibition of aggression. They are also intended explicitly or implicitly to protect the environment. Their primary subject matter, however, is weapons, and consequently such documents are included in this category. Whether these instruments are sufficient to make the violation of their provisions an international crime in accordance with the methodology of this book is questionable. 89 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163, 11 I.L.M. 309; see also Barry Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J.L. & Pub. Pol. 417 (2001). 90 Convention on the Physical Protection of Nuclear Material, March 3, 1980, 18 I.L.M. 1419. 91   Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti­Personnel Mines and on their Destruction [Ottawa Treaty], Sept. 18, 1997, 2056 U.N.T.S. 211. 92 Convention on Cluster Munitions, May 30, 2008. 93 Arms Trade Treaty (the July 2012 Arms Trade Treaty conference failed to agree on a text. For the text of the Preparatory Committee, see Report of the Preparatory Committee for the United Nations Conference on the Arms Trade Treaty, 11, U.N. Doc. A/CONF.217/1).



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Nevertheless, a violation of the obligations contained in these instruments constitutes a violation of international law and may be deemed an emerging customary law violation amounting to a war crime. Most of these conventions do not, on the other hand, contain penal elements and are therefore only the foundation for future criminalization at this time. To the extent that the crimes listed in this category also constitute war crimes, they are deemed jus cogens crimes. 6.2.5. Nuclear Terrorism This crime contains one relevant instrument from 2005,94 which is one in a series of conventions designed to address the problems presented by terrorism. The world community developed the series in a piecemeal fashion for political reasons. The International Convention for the Suppression of Acts of Nuclear Terrorism has eight of ten penal characteristics, and it is intended to prevent the illegitimate use of nuclear materials with the intent to cause death or serious bodily injury, or damage to property or the environment. 6.2.6. Apartheid This crime contains two relevant instruments adopted in 1966 and 1973, though only the latter criminalizes apartheid. There are also fifteen other applicable instruments from 1945 to 1996.95 The 1966 Racial Discrimination Convention96 made a symbolic impact on national legislative policies and practices as it coincided with the international community’s change of values and attitudes. It is relevant for this crime, because racial discrimination is the foundation of apartheid (whose elements are also part of crimes against humanity). There is an essential problem with the International Convention on the Suppression and Punishment of Apartheid, November 30, 1973,97 in that it seems it was intended to apply only to South Africa. Although the practice of apartheid has ended in South Africa, similar practices may develop in other settler-regimes and occupied territories in other areas of the world.

94 See International Convention for the Suppression of Acts of Nuclear Terrorism, G.A. Res 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005). Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 Fletcher F. World Aff. 57 (2004). 95 See Bassiouni, ICL Conventions, supra note 12, at 635–36. 96 International Convention on the Elimination of All Forms of Racial Discrimination, March 7, 1966, 660 U.N.T.S. 195, 3 I.L.M. 352. 97 International Convention on the Suppression and Punishment of the Crime of Apartheid, November 30, 1973, U.N. G.A. Res. 3068 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030 (1973).

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6.2.7. Slavery, Slave-Related Practices, and Trafficking in Human Beings This crime contains 27 relevant instruments from 1815 to 2001. There are also forty-seven other applicable instruments from 1874 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.98 Evidence of traditional slavery practices has now dwindled to a few individual cases throughout the world. Yet the recollection of that historical aberration is so strong that it has led to significant legislative developments in the area that go beyond earlier forms of that practice. Instruments for the protection of women, children, and laborers have expanded protections and prohibitions and increased control mechanisms. The principal moving force behind these developments has been the International Labour Organization, which has sponsored many of these instruments through a well-developed bureaucracy interested in expanding the international protective scheme. Credit must also go to the Anti-Slavery Society, whose continuing efforts to monitor the application of existing instruments, and to spur new ones, has kept this category from the stagnation endemic to some others (e.g., genocide and unlawful human experimentation). It must be emphasized that forms of forced or compulsory labor and other forms of slavery, though prohibited (e.g., International Convention for the Suppression of the Traffic in Women and Children, Concluded at Geneva on September 30, 1921, Amended by the Protocol, November 12, 1947),99 are barely monitored and hardly exposed. Such practices continue in several countries, and thus is an area that needs additional norms and improved mechanisms of ­control. It is interesting to note that the practice of slavery has been greatly diminished since the beginning of the 1900s without the existence of international enforcement machinery. The reason for this is the commonly shared values of the international community have coalesced and concurred with the political will of states to generate the necessary national and international action. Probably no other international crime has witnessed such a positive outcome, though much remains to be done in preventing related practices. Slave-related practices and trafficking in human beings has increased, and new forms have developed that lack specific normative instruments and enforcement modalities. Among these new forms of contemporary slavery are the traffic of

98 For the period up to 1995, see Bassiouni, ICL Conventions, supra note 12, at 730–33. Since then, the U.N. adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, annex II, U.N. Doc. A/RES/55/25 (Jan. 8, 2001) (entered into force Dec. 25, 2003). To date, more than 110 States have signed and ratified the Protocol. 99 Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children; Convention for the Suppression of Traffic in Women of Full Age, October 11, 1933, 53 U.N.T.S. 49 (entered into force April 24, 1950).



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women and children for sexual exploitation,100 and the subjection of persons through drug addiction to the will of purveyors. This crime is deemed part of jus cogens. 6.2.8. Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment This crime contains five relevant instruments from 1955 to 1987. There are also forty-one other applicable instruments from 1899 to 1996 that have been classified, in accordance with the methodology employed, with other crimes.101 Regional European and American instruments also prohibit torture.102 It is noteworthy that until 1975 the subject of torture committed within a state against its own nationals elicited limited interest in the international community, though many NGOs were decrying it. Since then, the efforts of Amnesty International, the International Commission of Jurists (ICJ), and the International Association of Penal Law (IAPL) have contributed to the present heightened interest in stopping this practice. In 1978, the IAPL and the ICJ submitted the text of a Draft Convention on the Prevention and Suppression of Torture to the Sub-Commission on the Prevention and Suppression of Torture, February 1, 1978. The text has been elaborated at the International Institute of Higher Studies in Criminal Sciences by a Committee of Experts under the co-chairmanship of the SecretaryGeneral of the IAPL and Secretary-General of the ICJ. The text of the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment103 is very similar to the original text submitted by the IAPL and ICJ. Torture is also an international crime in the context of war and is deemed a war crime when committed by army personnel and occupying forces against military personnel, persons hors de combat, or a civilian population. Torture has now also become a crime when committed outside the context of an armed conflict. As such, torture is an international crime at all times and in all circumstances, and is now deemed a jus cogens international crime.

  100 See In Modern Bondage: Sex Trafficking in the Americas (International Human Rights Law Institute, 2002).   101 See Bassiouni, ICL Conventions, supra note 12, at 760–63. 102 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Europ. T.S. No. 126, 27 I.L.M. 1152 (entered into force Feb. 1, 1989); Inter-American Convention to Prevent and Punish Torture, December 9, 1985, AG/Res. 783 (XV-O/85), O.A.S. General Assembly, 15th Sess. IEA/Ser. P. AG/Doc 22023/85 rev. 1 at 46–54 (1986), O.A.S. Treaty Series, No. 67, 25 I.L.M. 519 (entered into force Feb. 28, 1987). 103 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 December 1984, G.A. Res. 39/46 Annex, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. E/ CN.4/1984/72, Annex (1984), reprinted in 23 I.L.M. 1027 (1984); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, 2375 U.N.T.S. 24841 (2003). The U.S. is not a signatory to the Optional Protocol.

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6.2.9. Unlawful Human Experimentation This crime contains one relevant instrument from 1980 which has not, however, been adopted as an international convention. There are also forty-two other applicable instruments from 1899 to 1996 that have been classified, in accordance with the methodology employed, under other crimes.104 Unlawful human experimentation is an international crime in the context of war, and is deemed a war crime105 when committed by army personnel and occupying forces against military and civilian persons and persons hors de combat. Anachronistic as it is, unlawful human experimentation is not yet a crime under conventional international law in any other context. The Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation, August 13, 1980,106 which was prepared by this writer and submitted to the Sub-Commission on the Protection of Minorities and Prevention of Discrimination by the International Association of Penal Law, does not seem to have drawn particular interest or attention from that body or any other international body. At the 37th Session of the Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, a special resolution entitled Prevention and Suppression of Unlawful Human Experimentation to Promote and Protect Human Rights and Fundamental Freedoms107 was passed, and led to the appointing of a special rapporteur to study the problem. The Sub-commission, in another resolution on the question of human rights violations and fundamental freedoms,108 requested another special rapporteur “to include, on a preliminary basis, an outline of the topic of scientific experimentation as it relates to disability.”109 The document before the rapporteurs and the Commission is the one prepared by this writer and submitted to the U.N. by the International Association of Penal Law. However, there have been no further developments on this subject. Except for the post-Nuremberg trials,110 unlawful medical experimentation is subsumed in crimes against humanity and in war crimes, but there is no specific proscription against this practice in time of peace, save for when it rises to the

104 See Bassiouni, ICL Conventions, supra note 12, at 773–76. 105 See 1 Bassiouni, ICL, supra note 2, at 406. 106 U.N. Commission on Human Rights, Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation U.N. Doc. E/CN.4/Sub.2/NGO/80 (1980); see M. Cherif Bassiouni, An Appraisal of Human Experimentation in International Law and Practice: The Need for Regulation of Human Experimentation, 72 J. Crim. L. & Criminology 1597 (1981). 107 U.N. Doc. E/CN.4/SUB2/1984/L.21 (Aug. 24, 1984). 108 Id. 109 Id. para. 4. 110 See The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (George J. Annas & Michael A. Grodin eds., 1992).



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level of genocide or crimes against humanity. It is also, therefore, part of war crimes during armed conflicts. It also falls within the meaning of torture. To the extent that unlawful human experimentation is part of war crimes, crimes against humanity, genocide, and torture, it is a jus cogens crime. 6.2.10. Enforced Disappearance and Extrajudicial Execution This category is technically composed of two independent but related crimes, but they are often carried out in the same course of conduct. In fact, most situations of enforced disappearance results in an extrajudicial execution. At present there are four instruments dealing with the subject. While not all enforced disappearances are followed by extrajudicial executions, extrajudicial executions are almost always preceded by enforced disappearances. The combined practice was especially common in in Latin America between the 1960’s and the 1980’s, when government forces disappeared and executed members of the opposition, labor leaders and activists, leaving the victims’ families and friends completely in the dark about the fate of the individuals. While the ECHR has found the existence of enforced disappearances without a related finding of an extrajudicial execution111 and the IACHR has made findings of government responsibility for the massacre of villages,112 the general pattern is that disappeared individuals are later executed, thus linking the two crimes. At present there are two conventions dealing with enforced disappearances, one from the Inter-American system113 and the other fully international;114 there are 14 state parties to the Inter-American Convention and 32 state parties to the international convention. Enforced Disappearances are also dealt with in Article 7(i) of the Rome Statute of the ICC as a crime against humanity115 and in the caselaw of the IACHR, which delivered a landmark judgment in VelasquezRodriguez, declaring that enforced disappearances are a violation of international law.116

111 Kurt v. Turkey, ECHR, App. No. 24276/94 (May 25, 1998). But see e.g. Kaya v. Turkey, ECHR, App. No. 22535/93 (March 28, 2000); Tas v. Turkey, ECHR, App. No. 24396/94 (Nov. 14, 2000). 112 See e.g. “Mapiripán Massacre” Case, Judgment of September 15, 2005, Inter-Am. Ct. H.R. (Ser. C) No. 134 (2005); Pueblo Bello Massacre Case, Judgment of January 31, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 140 (2006) 113  Inter-American Convention on Forced Disappearances of Persons, opened for signature June 9, 1994, 33 I.L.M. 1429, entered into force Mar. 28, 1996. 114 International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature Feb. 6, 2007, U.N. Doc. A/RES/61/177, C.N.737.2008.TREATIES-12, entered into force Dec. 23, 2010. See also Procès-verbal of rectification of International Convention for the Protection of All Persons from Enforced Disappearance, Jan. 1, 2009. 115 Rome Statute of the International Criminal Court, Art. 7(i), July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002). 116 Velasquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988).

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Under the International Convention, the elements of Enforced disappearance are: a. The arrest, detention, abduction or deprivation of liberty of an individual; b. By State agents or individuals acting with the authorization, support or acquiescence of the State; c. Where the State refuses to acknowledge the arrest, detention, abduction or deprivation of liberty, or conceals any of the foregoing acts; and d. In the process the victim is placed outside the protection of the law. The Elements of Crimes of the ICC adds that the disappearance must be for a “prolonged period of time”.117 At present there is no international or regional convention dealing with extrajudicial executions, although the General Assembly has passed resolutions denouncing the practice, most recently in March 2011.118 The IACHR has delivered several judgments dealing with the issue in the context of violations of the Right to Life codified in the Inter-American Convention on Human Rights.119 There is a draft convention on extrajudicial executions but it has not been acted upon recently, and there is no interest by States to take up the issue at present or in the near future. Furthermore, the increasing use of drones by the U.S. to execute individuals suspected of membership in Al-Qaeda without any judicial process and the general acceptance or approval by most States of U.S. practice underscores the significant obstacles this important right faces before its incorporation into international law through a treaty. Drones offer a compelling example of the problem with extrajudicial executions and the danger the practice poses. In a drone attack, a pilot-less aircraft is remotely employed to fire missiles at individuals and kill them. The U.S. government has made assurances that the targets of drone strikes are enemies,120 but has failed to provide satisfactory information about the processes by which the individuals are selected for execution or even what threshold standard of proof is applied in making the final determination to kill him/her. There is no legal stan117 “Elements of Crimes”, International Criminal Court, 2011, at p. 11, available at: http://www.icccpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf 118 General Assembly Resolution 65/208 Extrajudicial, Summary or Arbitrary Executions, March 30, 2011, GAOR 65th Sess., U.N. Doc. A/RES/65/208 (2011). 119 See e.g. Valle Jaramillo et al. Case, Judgment of November 27, 2008, Inter-Am. Ct. H.R. (Ser. C) No. 192 (2008); Anzualdo Castro Case, Judgment of September 22, 2009, Inter-Am. Ct. H.R. (Ser. C) No. 202 (2009); Manuel Cepeda Vargas Case, Judgment of May 26, 2010, Inter-Am. Ct. H.R. (Ser. C) No. 213 (2010). 120 At one time the U.S. refused to acknowledge the policy of using drones at all. See Jane Harman, Comments at the Woodrow Wilson Center on the The Efficacy and Ethics of the President’s Counterterrorism Strategy (April 30, 2012), available at: http://www.wilsoncenter.org/event/ the-efficacy-and-ethics-us-counterterrorism-strategy.



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dard and no legal process; the decision on whom to kill, when to kill him/her and by what method is in flagrant violation of the right to life and the due process of law.121 Through the use of drones neither the victim nor the public is aware of which who is targeted for killing, who gave the order to kill the individual, and what recourse or judicial process exists for the victim against the determination to kill him/her. These problems are only magnified when drones are used target lower level victims who necessarily have a smaller dossier by dint of their lower rank or smaller role, thereby increasing the possibility of a strike against someone who is factually innocent and also potentially unaware of his/her inclusion on a strike list. Using drones in this fashion is criminal whether or not there is transparency, although the illegitimacy is heightened when the process is carried out in secret and without any form of transparency. The prohibition against extra-judicial executions is designed to protect the individual’s right to life and right to due process. By removing an individual from the protection of the law and making the execution a discretionary act of the executive and the military (or even more problematically by the CIA), core human rights are violated. International law prohibits extrajudicial executions and political executions for good reason. It is clear that the use of drones to kill individuals is a violation of the prohibition against extrajudicial executions. 6.2.11. Mercenarism This crime contains one relevant instrument adopted in 1989. There are also seven other applicable instruments adopted between 1949 and 1994 that have been classified with other crimes.122 Mercenarism is a threat to peace and security and is therefore in some senses an extension of aggression; it is also prohibited by the conventional regulation of armed conflict and is therefore also a part of war crimes. It is listed separately because it is the subject of a separate convention that partakes of the elements of both aggression and war crimes. 121 See generally, Background Note for the American Society of International Law Annual Meeting, Targeting Operations with Drone Technology: Humanitarian Law Implications, Human Rights Institute, Columbia Law School (March 25, 2011), available at: http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf. The defense of drone attacks offered by the Obama administration centers on the permissibility of killing combatants in the course of armed conflict. The Obama administration, while acknowledging the use of drones, fails to address the deeper problems concerning the lack of due process and the lack of transparency over how the individual is selected for execution. While there is mention of a process and a standard of proof, what precisely the standard is and the specifics of the process are not revealed. This is not a legal process in any sense of the term. See John Brennan, Assistant to the President for Homeland Security and Counterterrorism, “The Ethics and Efficacy of the President’s Counterterrorism Strategy” (April 30, 2012), available at: http://www.wilsoncenter. org/event/the-efficacy-and-ethics-us-counterterrorism-strategy. 122 See Bassiouni, ICL Conventions, supra note 12, at 616.

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6.3.1. Piracy and Unlawful Acts against the Safety of Maritime Navigation and the Safety of Platforms on the High Seas This crime contains six relevant instruments from 1937 to 1982. There are also five other applicable instruments from 1841 to 1982 that have been classified, in accordance with the methodology employed, under other crimes.124 Piracy has been recognized as an international crime under customary international law since the 1600s, and has continued to be deemed a customary as well as a conventional international crime. Even though the occurrence of this crime is rare, it can also be said that piracy is an act of terrorism, which explains why the Nyon Arrangement, September 14, 1937,125 is also entered under this crime. There is no specialized convention on piracy, but its prohibition is included in international instruments on the law of the sea. Perhaps the scarcity of such events in contemporary times has obviated the need for a specialized convention on the subject. Some of the provisions of the relevant documents listed in this category (and under other crimes also applicable to piracy) extend the notion of piracy to aircraft hijacking. The modern counterpart of the prohibition of piracy is the prohibition of unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas. Some aspects of piracy on the high seas in time of war fall within the regulation of armed conflict and constitute war crimes. Nevertheless, for historical reasons, piracy, like slavery, is deemed a jus cogens crime.126 6.3.2. Aircraft Hijacking and Unlawful Acts of International Air Safety This crime contains ten relevant instruments from 1937 to 1988. There are also three other applicable instruments from 1971 to 1982 that have been classified, in accordance with the methodology employed, with other crimes.127 There are three specialized conventions128 adopted between 1963 and 1988 that deal with this crime. Other instruments also applicable to this crime stem from piracy, as if aircraft hijacking were another form of piracy, that is, air piracy. 123 For all conventions relative to this category, see Bassiouni, Terrorism Conventions, supra note 7. 124 See Bassiouni, ICL Conventions, supra note 12, at 788; see also Gerhard O.W. Mueller & Freda Adler, Outlaws of the Ocean (1985); Alfred P. Rubin, The Law of Piracy (1998); Sundberg, supra note 2. 125 League of Nations, The Nyon Arrangement, September 14, 1937, 181 L.N.T.S. 135, 34 Martens Nouveau Recueil (ser.3) 666, (entered into force Sept. 14, 1937). 126 See 1 Bassiouni, ICL, supra note 2, at 803. 127 See Bassiouni, ICL Conventions, supra note 12, at 842. 128 Convention on Offences and Certain Other Acts Committed on Board Aircraft [Tokyo Hijacking Convention], 20 U.S.T. 2941, 704 U.N.T.S 219, 2 I.L.M. 1042 (entered into force Dec. 4,



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The existence of the International Civil Aviation Organization (ICAO) has spurred continued interest in the legislative development of this subject, as has a world public opinion concerned with increasing air travel safety. Thus, as more persons feel affected by a given criminal conduct, more international instruments will be developed, and in time, more specificity as to their penal characteristics will emerge from their provisions. But what is needed is a comprehensive convention that incorporates the three specialized conventions. 6.3.3. Threat and Use of Force against Internationally Protected Persons and United Nations Personnel This crime contains six relevant instruments from 1971 to 1994, as well as the 1996 ILC Draft Code of Crimes.129 There are also two other applicable instruments from 1937 to 1977 that have been classified, in accordance with the methodology employed, with other crimes.130 This category of crimes deals primarily with diplomats, on the one hand, and United Nations and related personnel on the other. The protection of diplomats has its roots in customary international law, but the penal prohibitions attached to this protection emerged from conventional international criminal law. The specialized instruments contained in this crime, the number of state parties, and the early dates of entry into effect attest to the fact that when the drafters of a given instrument have a vested interest in it, its conclusion and entry into effect will be swifter than with respect to other areas of international crime. The protected targets in this crime are persons carrying certain functions. This is the same internationally protected interest as in crimes against United Nations and associated personnel, and the taking of civilian hostages. The protection of United Nations and related personnel reflects the expanded use of governments’ contributed personnel, particularly military personnel, to U.N. peace-making and peace-keeping operations. Because of the dangers to which such persons are exposed, the U.N. sought their protection through an international convention. Since the context and personnel involved in this crime are military, it is related to war crimes. But it is also related to threat and use of force against internationally protected persons and the taking of civilian hostages. Because of the overlapping interests between diplomats and United Nations personnel, it would therefore have been preferable to have a single convention for the security of all internationally protected persons. 1960); Convention for the Suppression of Unlawful Seizure of Aircraft [Hague Hijacking Convention], 22 U.S.T. 1641, 860 U.N.T.S. 105, 10 I.L.M. 133, (entered into force Oct. 1