IL Facts: Crimes under International Law – General (Some note on Syria)

On Friday, David Cameron said that while evidence from Syria was limited, “there’s growing evidence that we have seen, too, of the use of chemical weapons, probably by the regime. It is extremely serious, this is a war crime, and we should take it very seriously”. But, while this statement is significant in the world of elite global politics, what does it mean to ordinary Britons who want to see justice? War crimes are one of four crimes under international law as defined by the Rome Statute of the International Criminal Court. Further, United Nations investigators have also urged that Syrian leaders should face charges for Crimes against Humanity (in this article listed as murder and torture). So here, the Diplomat provides a general overview of what Mr Cameron and the UN inquiry are on about, and what terms like Genocide, Crimes against Humanity and Aggression mean in the media and international law.

History and Jurisprudence

International Criminal law showed buds after World War I, but truly grew stable roots in international law at the establishment of the Nuremberg Trials, or the International Military Tribunal (IMT) after World War II. The tribunal was established on the jurisprudential basis that by their unconditional surrender, the enemies of the Allies submitted themselves to their victor’s jurisdiction and “the expression of international law at the time of [the tribunal’s] creation”. It is a common misconception that on setting up the Tribunal the allies were effectively trying alleged criminals using ex post facto legislation, violating the basic principle of justice nullum crimen sine lege (meaning without law there is no crime, or that legislation cannot be retrospective). However, the tribunal asserted that despite there being no definition of Crimes against the Peace, or specific courts or punishments to pass for judgement for the commission of this crime, the waging of wars of aggression in violation of international treaties was considered a crime prior to the trials, however undeveloped it’s surrounding practice. Further, the Tribunal noted that this doctrine was one of justice, not of sovereignty, and that in this instance justice would not be served by it’s vigorous upholding, but rather sorely disappointed.

Panel of judges at the IMT: Harold (“Tom”) L. Sebring,
Walter B. Beals, Johnston T. Crawford,
Victor Swearingen (alternate judge)
The trials mainly relied on the Pact of Paris or Kellog-Briand Pact and the Hague Conventions of 1907 to establish Aggression and War Crimes as crimes under their jurisdiction. As the first joint exercise of criminal jurisdiction under international auspices, the tribunal set the precedent for regarding treaty law as binding in such a firm fashion. It also established the enforcement of the principles of non-aggression and crimes against humanity, laying the pathway for the ICC, Security Council and modern tribunals.

So, what are “crimes under international law”?

Crimes under international law are not transnational crimes (i.e. crimes which take place over multiple jurisdictions or in international territories) but rather are composed of “conduct that violates international law, and is punishable as such with the imposition of individual criminal liability” (Boas, G. and Bischoff, J., et al., 2009). This means that criminal liability is not upon states, but upon individuals such as heads of state or government  and individuals of military or other authority.


And what are the crimes? How do they work?

There are four crimes which fall under the jurisdiction of the International Criminal Court (ICC) in The Hague.

The Rome Stature is as follows:

1.         The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a)     The crime of genocide;
(b)     Crimes against humanity;
(c)     War crimes;
(d)     The crime of aggression.

  • Genocide
    • The crime of genocide is often referred to as a ‘mental’ crime, due to the emphasis placed on proof beyond reasonable doubt of the special intent requirement in prosecution. 
    • Contrary to popular perception, there is no requirement for a large number of victims; technically a sole victim can suffice. 
      • The accused need only have committed one of the five actus reus: 
        • (a)    Killing members of the group; (b)   Causing serious bodily or mental harm to members of the group; (c)   Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)   Imposing measures intended to prevent births within the group; or (e) Forcibly transferring children of the group to another group. 
    •  The Special Intent required is that the actus reus  are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”
Points of note concerning genocide are that political, social and professional groups are not protected victims under the law, and that huge weight is placed on psychological evidence.



  • Crimes against humanity
    •  Crimes against humanity are basically just any of the nasty things in Article 7(1) of the Rome Statute “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. 
    • The actus reus must also be “pursuant to or in furtherance of a State or organizational policy to commit such attack”. 

  • War Crimes


    • Violation of the laws relating to the conduct of war or  umanitarian law, predominantly the Geneva and Hague Conventions. 

  • The crime of Aggression
    • The Crime of aggression was originally included in the Rome Statute, but was not given a definition and was held in limbo until an amendment to the statute was agreed upon in 2010. Only crimes of aggression committed one year or more after the thirtieth ratification are within the jurisdiction of the Court. Furthermore, a decision is to be taken by the Assembly of States Parties with a two-thirds majority vote after 1 January 2017 to actually exercise jurisdiction.
    • Further issues with the definition include a similar psychological element to the crime of genocide, and one equally difficult to prove in the Elements to the Crime of aggression.
    • There is also the untested use of the descriptor “manifest”, requiring not only a violation to occur, but for the court to judge it serious enough via its gravity, scale and character. 

Will the prosecution of these crimes bring peace?

Here is a poorly presented but brilliantly answered brief interview with International Criminal Attourney Nicholas Koumjian on the public and private purposes of prosecutions at the ICC. 
Many in the international community hope that this real threat of punishment will drive violations of international law down in a way that we have not seen before, but the fervour of the Court has yet to be clearly demonstrated. Following the Arab Spring, the swift progress made by Somalia recently, and ongoing events in Egypt, Tunisia and Syria, the Diplomat is keen to see how International Criminal Law is treated by fledgling states and how vigorously the Court asserts itself into its community in its second decade.
Sources
Boas, G. and Bischoff, J., et al. (2009) International Criminal Law Practitioner Library. Cambridge: Cambridge University Press.
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