International Criminal Law Sample Assignment
Introduction
Whenever there is a requirement to assess the role of civil society for the formation of an international institution for addressing severe crimes, it is also necessary to understand the philosophy that prompts this idea into reality. The journey of understanding the development of International Criminal Law also involves the apprehension of how human beings have become the major or central subject of this law. The major evolution of both the study of anthropology and international criminal law has been done in the nineteenth and twentieth century[1]. Hence strong relationship has been found where the origin of major crimes was because of changing behavior patterns and due to the influence of various societal norms. The purpose of this essay is to provide an In-depth understanding of international criminal law and its related aspects. Not only the historical context and the major underpinning concepts of this law are discussed, but a detailed analysis of institutional and diplomatic problems are also discussed. All these concepts are presented in a way that they help understand the given statement which is the major task of this essay. The statement is “Most of these crimes do not result from the criminal propensity of single individuals but constitute a manifestation of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design.” The arguments are arranged to explain and justify this statement in light of International Criminal Law.
Background
ICL was not developed instantly rather there is a history of events especially after the World War II (1945-1950) and the period of “golden decade” after the end of the cold war (1993-2002) that significantly aid in the formation of this law[2]. These events were basically the serious violation or commitment of crimes by nations or individuals that pursue the International Criminal Court (ICC) to finally establish an international law that will effectively deal with such violations. The first phenomenon to be considered in the formulation of ICL was the birth of international crimes. These are the serious crimes conducted by individuals, and they are subject to direct punishment that can be imposed by international law. Example of such crimes involves war crimes in which nations or their authoritative organizations like military violate humanitarian law or ‘Jus in Bello’ that actually governs the conduct of armed conflicts or wars[3]. Although, such humanitarian crimes were already conducted in the 19th and 20th century, during the time of international customary law. The 20th century is also considered as the time of humanitarian rights violation, “crime of aggression” and “the period of genocide” when the crime against humanity was at their peak[4].
The concept of “crimes against humanity” and “crime of aggression” were introduced for the first time by the Charter of the Nuremberg International Military, under the London Agreement of 1945. Later, the Genocide Convention[5] held in 1948, introduced the crime of genocide based on the dismaying consequences of the Holocaust. Crimes against humanity basically represent the crimes of war including not only those committed during the war to the enemy but also those that include harming the population of enemy. Genocides, on the other hand, represent crimes against humanity that were based on harming other person based on their ethnic, religious, national or racial identity where the intent is to destroy such group of people[6]. The crime of aggression defines the behavior of military or political leaders who made a decision to initiate an aggressive war towards the other nation. This crime was actually difficult to identify in international customary law because nations who are in power resisted the recognition of these crimes and were not ready to take responsibility for their actions. Although, this crime of aggression also referred as a crime against peace is already established and punished in Nuremberg and is included in Rome Statute of ICC (1998)[7], but still, there is no chance that enforcement of sanction on this crime can be implemented even in the near future.
Formulation of Nuremberg Tribunal and ICL
The development of International Criminal law actually began with the formulation of Nuremberg Tribunal after World War II under the supervision of the London Charter. The establishment of this tribunal was a major step in the development of ICL, as it helped in broadening the spectrum of solving international crimes. However, it was also criticized by many as nations in power do want to undergo repression of crimes conducted by the defeated countries but were unwilling to accept their own crimes. The development of International Military Tribunal (IMT)[8] was also an act of victorious powerful countries of 2nd world war to take revenge or punish the defeated especially the German Authorities and Japanese leaders who were subject to trial before the Tokyo Tribunal.
However, still the United Nations even after the Nuremberg felt the need to develop a permanent criminal court that will have the potential and authority to pursue and trail any person who will be found guilty of conducting any international crime anywhere in the world. The purpose of establishing such system was to provide a universal platform and system for justice by integrating national judiciaries in a way that it will be capable of pursuing and punishing the international crimes with the guarantee of the fair international justice system[9]. The system was also maintained to prevent the liberty of international crimes. Although, still at that time there were some limitations in full implementation of the law as the UN General Assembly task of drafting codes of international crimes was paralyzed because of divisions of superpowers after the Cold war.
Therefore, 1993 The UN security council took the initiative and formed The International Criminal Tribunal for the Former Yugoslavia (ICTY) under the resolution of 808 and 827. Further in 1994, under the resolution of 995, they created the International Criminal Tribunal for Rwanda (ICTR)[10]. For the first time in history, an international justice system was created in Africa because previously UN body was under heavy criticism for only involving in crimes happening in Europe and they were completely ignoring the genocide happening in African countries.
After that, two Ad hoc tribunals also contributed in the formation of ICL, but it was pretty evident that the major political organ, the Security Council which was controlled by the dominant nation’s representatives was the main hurdle in successfully impartially promoting international justice. The end of the Cold War strongly led to the need for establishing permanent criminal law. Finally, in 1194, the draft Statute of International Law Commission was approved which was further conveyed in the Roman International Conference in 1998 and finally adopted as the Statute of the International Criminal Court and the International Criminal law was enforced at 1st July 2002.
International Criminal Law as discussed above deals with different tribunals internationally that focuses on outrageous crimes like a crime against humanity, war crimes, genocide and crime of aggression. The appeal Chamber of Yugoslavian tribunal stated that most of such crimes are not the act of a single individual; rather there is a group of people that was acting in pursuit of manifesting the collective criminality act. Although, the nature of such crimes are collective, but ICL has embraced a model that also deals with individual accountability for any crime[11]. This is because participant of a crime may be directly (physically) or indirectly (controlling) involved in the act of crime. The main reason for the establishment of ICL was to address the culpability of such subgroup. The effective implementation of ICL required the collection of facts and acts of individuals that are involved in the mass atrocity. However, there were many political, territorial and diplomatic issues that hinder the coherent operation of this doctrine system. These issues are discussed in detail below.
Sources of Incoherence
There were many factors behind the unsuccessful implementation of ICL around a single doctrinal or theoretical approach because of its complex participants belonging to different powerful nations. The first source of disorganization was the formation of multiple decision-making regimes. In 1993 the UN Security Council, in response to the war in Yugoslavia, developed International Criminal Tribunal for the Former Yugoslavia (“ICTY”). This was the ad hoc tribunal that was formed as the substitute for SC and given charge under the Statute,
“prosecut[ing] . . . persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[12].”
After the Nuremberg, this was the first international tribunal formed post World War II. The inclusion of the ICTY statute was basically to systemize the customary international law (CIL) by presenting a hybrid system of common and civil law traditions. It has the judges and prosecutors from both the traditions[13].
In the later year 1994, the SC formulated another tribunal as its subordinate organ, the International Criminal Tribunal for Rwanda (“ICTR”). Furthermore, a series of tribunals were established in response to mass atrocities in East Timor, Cambodia, Lebanon, and Sierra Leone[14]. All these tribunals have similarities as well as differences in their documents. The establishment of permanent ICC was purposed to address the tribunal differences and negotiate agreements based on both common and civil law traditions. Also, in ad hoc tribunals both traditions were represented by the prosecutors and judges. Multiple decisions making was also evident from the fact that even tribunal or domestic courts deal with international crimes. So, multiple decision makers instead of solving the international crimes issues are just interpreting the ICL with the charges they are authoritative of imposing. Their charges also include dealing with the different forms of responsibilities that lead to collective crimes.
Nature of International Criminal Law
The nature of ICL can be expressed as complex because different factors contribute to its inconsistent application. The major factor is that it is composed of different strands of law. Mostly it is derived from International Humanitarian Law (IHL), which previously restricts nations to conduct war according to specified legal parameters. Those who violate those parameters were subject to be the culprit of war crime. In addition, the Nuremberg Tribunal also revealed that the roots of both customary law and treaty impose international criminal responsibility on persons. Other than International Humanitarian law, International Human rights Law is also the major contributor of ICL[15]. Many substantive misconducts are taken from the perspective of human rights especially the crimes of discrimination. Also, both the crimes of genocide and crimes against humanity fits in this model of ICL. International human rights possess the greatest potential to provide practical protections to the defendants of crime.
The norms of ICL comprise of precepts like protection against double jeopardy, ‘nullum crimen sine lege’ i.e. the concept of innocence, provision of protection of trials mainly derives from international human rights law[16]. The third strand of ICL comes from domestic law. When it comes to draft the treaties and development of customary international law, the participants involved in the drafting the ICL also brought in their own understanding of criminality which is based on their legal traditions. So many comments that international criminal law is something not new rather it is a complete or partial modification of domestic law which is now named as ICL[17]. This issue was raised because the nature of domestic and international crimes is different from cultural, political and legal context under which these crimes are conducted. But still many argue that domestic law approach can also be effective for international crimes.
Although the ICL presents general rules and a legal system for the punishment and conviction of those culpable of serious crimes, still the actual process for determining the culprit varies from system to system. This happens mostly when an individual has to be determined or identified for the collective criminality. The process for determining the culpability is characterized by several principles set against the accomplices, by the nature and complexity of crime, extent to which someone aid and assist in the act of crime and also to determine that whether the person is a co-perpetrator or not. As there are different international tribunals present, so each has its own set of criteria to assess and determine culpability and individual criminal responsibility.
As discussed earlier that one of the sources of incoherence in ICL is the multiple decision making. The different tribunals have their own principles to interfere with the founding documents of ICL which obviously impact the final results. Although the definitions of crimes are pretty much the same for all tribunal laws and documents but still the way, they interpret the text to reflect the variation in their procedures. For instance, the ICTY is designed in a way that it has to consider CIL, while on the other hand ICC can use its own statutory language for determining criminality and individual responsibility. However, there are some hybrid courts like Extraordinary Chambers in the Courts of Cambodia (“ECCC”)[18] which can apply both the domestic and international law[19]. This shows that definition of the mode of participation does create issues which are usually not expressed in founding documents of any tribunal.
Whenever the individual criminal responsibility is discussed under the ICL, it has to begin with Nuremberg. The developers of Nuremberg Charter focused on addressing the nature of Nazi delinquency in two distinct ways. First, they consider planning for liability and act of conspiracy as crime participation. The Charter also present a definition of certain crimes. For instance, the language used to define crimes against peace was “Planning, initiating, preparing, waging or naming any war of aggression, violation of international treaties in war or assurance or agreements or participating in the act of conspiracy or plan for any crime.” In addition, except from presenting the definitions of war crimes and crimes against Humanity the Nuremberg tribunal article 6 stated that “Organizers, leaders, accomplices, and instigators who participate in the development or execution of a conspiracy plan or involve in the commitment of an international crime will be held responsible for the acts performed by an individual for the completion of any such plan.” The two extracts from the tribunal document established the crime of conspiracy and mode of participation. Well, however, it is pretty much clear that the Nuremberg Tribunal has no authority or power to conduct the trial for individuals who were found to be the culprit of war crimes or crimes against humanity. Out of twenty-two- defendants, only eight defendants that were tried at IMT at Nuremberg were convicted for involving in acts of conspiracy and also only according to article 6 against crimes against peace.
Another way, the drafters of Charter statute purposed to condemn the crimes of the Nazi regime was to permit the prosecution and accusation of some institutes according to articles 9 and 10. For the trial of individual defendants, it was planned that the tribunal would have to declare the institute or organization from which the culprit member belong to as a criminal organization. Following that if an individual is in search of attaining membership in such organizations then it would be deemed as per se criminal according to national, military occupation courts. Any organization which is found to be involved in crimes against peace or found guilty of war crimes or crimes against humanity and criminal conspiracy will be liable to appear in criminal court. Hence according to the plan such organizations have will be declared illegal and their official will be subjected to arrest and prosecution in front of national courts.
Collective Crime, Responsibility & Punishment
The formation of collective responsibility by international law is created only for establishing certain rules with significant exceptions. There are certain procedures defined in international law against the person for whom the sanction will be directed which will further determine his own conduct and to what extent the law has been violated. George Fletcher argues that when the rights of an individual’s self-defense are discussed then they are not solely justified by individual rights but it should be defended by the collective legal order[20]. According to this opinion an attack against one is regarded as an attack against all, similarly defense for one is linked with defense for all. Fletcher[21] has further justified his belief by arguing that an individualist approach towards the justification of individual self-defense is substandard to a society based approach. As it is believed that the right of national or collective self-defense are interlinked with one another where more emphasis is placed on the right of an individual. However, Fletcher has reversed the analogy by reversing the directions of self-defense according to him the right of an individual towards self-defense is a projection of the idea of national defense where nations are using force for keeping dominance not only on their territories but also on their people[22].
Further Fletcher argues that when some domestic crime is highlighted then it is also connected with collective victim, and in such case criminal punishment for an individual in not enough because the harm exists in a collective form rather than as an individual. For instance if a case of assassination is considered then the issue at this point is the value of life as a whole and not particularly the life of deceased individual. The victims of such crimes when appear in criminal law as individual then they are perceived as representatives of the public as a whole. The perception of Fletcher regarding war crime is almost similar in which he states that crimes of international criminal law are different from domestic crimes. The reason provided for this perception is that such crimes involve collective victims and are also committed by collective representatives. At this point what needs to be understood is that war is something which does not occur between man and man but it is something which happens between states. The collective nature of crime which is mentioned here is that the enemies of one state will be another state and not just men at all. This perception has further been elaborated by Rousseau[23] who agrees with the fact that war happens between states and when condition of war is imposed on any state then it recreates an alternative identity for the people of that state. The individuals who participate in war, is although an individual but at this time becomes a soldier who follows a chain of commands. Hence soldier is just a servant of the state and is not an autonomous agent at this point.
In contrast to international law, International criminal law consider individual persons as accountable rather than states accountable for the crime performed which falls in the jurisdiction of the ICC. The crimes categorized in this category by ICC include: crimes against humanity, aggression, genocide and above all war crimes. The collective orientation of such crimes to explicit recognition of individual liability for crimes are specified in Rome Statute[24] in Hague and Geneva Conventions[25]. But here Fletcher claims that there is an underlying aspect which must be explored during the occurrence of these offenses. This justification further lead to the transformation of individual liability at the International Criminal Court to collective offenses. The crimes which are prosecuted in ICC will thus be deemed as collective crimes although in such cases an individual is prosecuted for the crime performed. But here this individual represent the group and that person will be considered as a member of that hostile group and how they all engaged towards the commencement of a particular crime.
When a collective crime is performed it is usually perceived to give collective punishment in the form of war with that particular group. Fletcher has disapproved collective punishment because he has provided justification in which he proposes that a culture is responsible for nurturing criminals or terrorists. It would be unjust to punish people collectively in this scenario because it is not right to punish everyone in that group for the crime committed by some particular individual. He further states that arbitrary punishment should be regarded as an alternative to collective punishment, as it is unjust to accuse everyone who are the member of that group as criminals and punish them collectively.
Conclusion
Well, it can be concluded that since the beginning and end of World War II the need for enforcing fair war laws was identified. The development of Nuremberg tribunal, ad hoc, and various other tribunals were the steps towards establishing such a system. However, there are certain facts identified in the essay that reflect that as these tribunals were established based on different situations, and in response to different war crimes, so they vary in their process of determining war crimes. Besides, the major participants of the Security Council or these tribunals were the member of superpowers who themselves were the culprit of many war crimes. Hence their power and influence seldom led them under the prosecution of war crimes. The study also highlighted and defined different types of crimes that are dealt with under the International Criminal law. In addition, the individual responsibility of crime and the concept of collective criminality is also discussed in detail. The statute of different tribunals clearly defines the principles against which the war crimes can be determined and also provide the understanding that in what circumstances individuals and the organizations to which they are related are determined as criminals. The sole purpose of creating international criminal law was to provide an international system for punishing those who violate the humanitarian laws in war. But still, after so many reforms the ICL is limited in many ways.
Having considered the detailed discussion about various offenses and crimes which are dealt by International Criminal Law it is clear that the Rome Statue[26] is the defining procedure for such crimes. The Rome Statue indicates the type of consequences of a particular act of crime, hence the corresponding statues are applied in deciding the nature and the form of punishment for international prosecution. Further the collective nature of crimes which involve genocide and crimes against humanity are regarded as serious war crimes as compared to other international crimes because in such cases negating the liability of such cases is almost difficult to excuse. At this point it is also clearly elaborated in international crime law that genocide is regarded as a more severe crime in comparison to the crimes against humanity or war crimes and it is liable to find the nature of such offense and what was the real purpose behind such mass destruction. Still there are serious lacking in the law which makes genocide as the hardest crime which can be proved and be defensed for, hence some statues and standards must be defined for such crime both at national and international levels.
Hence it can thus be concluded that whenever a collective crime is executed then there has to be joint acceptance of the consequences. There are situations when collective crimes are executed as politically legitimate and morally right then in such condition it is the responsibility of the state and its subjects to face the consequences of the crime which can either be positive or negative. In such condition the consequences of the crime will also be acknowledged as legitimate and right. This is the stage of apprehending the problem and taking moral responsibility of the criminal act executed through joint participation. After the establishment of United Nations the creation of ICC is thus regarded as a beneficial event in the international law arena because it has stipulated one of the complicated instruments that has ever been adopted. Thus the statue proposed by ICC does not stop on mere criminal responsibility of individuals who have committed crime as defined by the Statue. It is also applicable on the individuals who are found to be indirectly involved in committing crime under the statues of international law. Therefore the decisions and recommendations which will be made further in this regard by the tribunals will be of significant importance, as they will be further strengthen international criminal and international humanitarian law along with identification of asserting individual criminal responsibility.
Bibliography
Books
Creyer, R., An Introduction to International Criminal Law and Procedure. 3rd Edition ed. s.l.:Cambri-dge University Press, [2014].
Damgaard, C., Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues. s.l.:Springer Science & Business Media, [2008].
Krammer, A., War Crimes, Genocide, and the law. s.l.:Praeger, [2010].
May, L., Crimes Against Humanity – A Normative Account. s.l.:Cambridge University Press, [2005].
Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].
Schabas, W. A., An Introduction to the International Criminal Court. 3rd Edition ed. s.l.:Cambridge University Press, [2007].
Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].
W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].
Journals
Dembour, M.-B. & Haslam, E., Silencing Hearings? Victim-Witnesses at War Crimes Trials. European Journal of International Law, 15(1), [2004].
Drumbl, M. A., Collective Violence and Individual Punishment: The Criminality of Mass Atrocity. Washington and Lee University School of Law, pp. 1-99, [2005].
Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].
Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].
McGuire, J., A review of effective interventions for reducing aggression and violence. Philosophical Transactions London Biological Sciences, Volume 363, p. 2577–2597, [2008].
Muttukumaru, C., Reparation to Victims, in Roy S. Lee.. The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results. The Hague: Kluwer Law International, [1999].
Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].
Websites
Dimitrijevic, N., 2006. Moral responsibility for collective crime. [Online]
Available at: https://www.eurozine.com/moral-responsibility-for-collective-crime/
[Accessed 2019].
MCMAHAN, J., 2008. Collective Crime and Collective Punishment, Criminal Justice Ethics. [Online]
Available at: https://pdfs.semanticscholar.org/10e0/8efb70847377e75fb39952a3ae17db01d5db.pdf
[Accessed 2019].
Legislations
Rome Statute of the International Criminal Court (1998)
Additional Protocol I (1977) of the Geneva Convention (1949)
Convention on the Prevention and Punishment of the Crime of Genocide (1948)
[1] Schabas, W. A., An Introduction to the International Criminal Court. 3rd Edition ed., Cambridge University Press, [2007].
[2] Creyer, R., An Introduction to International Criminal Law and Procedure. 3rd Edition ed. Cambridge University Press, [2014].
[3] May, L., Crimes Against Humanity – A Normative Account. s.l.:Cambridge University Press, [2005].
[4] Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].
[5] Convention on the Prevention and Punishment of the Crime of Genocide (1948)
[6] Krammer, A., War Crimes, Genocide, and the law. s.l.:Praeger, [2010].
[7] Rome Statute of the International Criminal Court (1998)
[8] Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].
[9] Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].
[10] W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].
[11] Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].
[12] W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].
[13] Damgaard, C., Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues. s.l.:Springer Science & Business Media, [2008].
[14] Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].
[15] Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].
[16] Drumbl, M. A., Collective Violence and Individual Punishment: The Criminality of Mass Atrocity. Washington and Lee University School of Law, pp. 1-99, [2005].
[17] Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].
[18] Dembour, M.-B. & Haslam, E., Silencing Hearings? Victim-Witnesses at War Crimes Trials. European Journal of International Law, 15(1), [2004].
[19] Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].
[20] Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].
[21] Fletcher and Ohlin, DH, 196-97, Fletcher, RW, 156
[22] Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].
[23] Jean-Jacques Rousseau, The Social Contract, in Social Contract: Essays by Locke, Hume, and Rousseau, trans. Gerard Hopkins (Oxford, UK: Oxford University Press, 1947), 249-50
[24] Rome Statute of the International Criminal Court (1998)
[25] Additional Protocol I (1977) of the Geneva Convention (1949)
