INTERNATIONAL CRIMINAL LAW

MODULE-1

INTRODUCTION TO INTERNATIONAL CRIMINAL LAW

a) Notion of International Criminal Law: historical perspective

International criminal law has evolved as an essential mechanism to ensure

justice, security, and human rights in a global society. Every human community
requires laws, courts, and enforcement mechanisms to function, but international
law has often been ambiguous, with weak courts and limited enforcement. The
idea of a permanent International Criminal Court (ICC) is still in development,
aiming to hold perpetrators accountable for crimes against humanity and war
crimes.

The 1474 trial of Peter von Hagenbach was the earliest known instance of an
international tribunal holding an individual accountable for atrocities, laying the
foundation for modern international criminal law. As Governor of Breisach under
the Duke of Burgundy, Hagenbach committed murder, rape, and other crimes,
prompting the Archduke of Austria to convene a tribunal of 28 judges from the
Holy Roman Empire. His defence—that he was merely following orders—was
rejected, establishing the key legal principle that individuals are responsible for
manifestly illegal actions, regardless of superior commands. This precedent
influenced later tribunals, including Nuremberg, the ICTY, the ICTR, and the
ICC, reinforcing the enduring principle of individual accountability in
international justice.

The origins of international law can be traced back to ancient times when war
crimes such as mass killings and enslavement were widespread. Early efforts to
regulate warfare emerged in the 16th-18th centuries with scholars like Grotius
advocating for just war principles. The Hague Peace Conferences of 1899 and
1907 attempted to introduce legal frameworks to limit wartime atrocities but
1
lacked enforcement mechanisms. After World War I, the Treaty of Versailles
(1919) sought to hold Germany accountable for its war crimes, but the trials were
largely ineffective, as key figures like Kaiser Wilhelm II evaded prosecution. The
League of Nations, established to maintain peace, failed to prevent aggression, as
seen in Japan’s invasion of Manchuria (1931) and Italy’s attack on Ethiopia
(1935).

The turning point in international criminal law came with the Nuremberg Trials
after World War II, where leading Nazi officials were prosecuted for crimes
against peace, war crimes, and crimes against humanity. The trials established the
precedent that individuals, including heads of state, could be held accountable for
atrocities. The Nuremberg Charter introduced key legal principles, such as
rejecting the defense of “superior orders” and affirming that aggressive war is a
crime. These trials reinforced the idea that international law evolves to meet the
needs of a changing society. However, despite the success of the Nuremberg
Trials, progress in establishing a permanent legal framework was slow due to the
Cold War and political divisions.

The United Nations (UN) affirmed the Nuremberg Principles in 1946 and
worked towards codifying them into a criminal code, but disagreements over
defining crimes like aggression delayed progress. In the 1990s, the failure to
prevent genocides in the former Yugoslavia and Rwanda led to the creation of
temporary tribunals, the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR). These courts were significant in bringing war criminals to justice but
highlighted the need for a permanent international legal institution.

The establishment of the ICC marked a historic milestone in international

criminal law. In 1998, the Rome Statute was adopted, officially creating the
ICC, with jurisdiction over genocide, war crimes, and crimes against
humanity. Despite this achievement, many challenges remained, including

2
defining the crime of aggression and securing widespread ratification. Powerful
nations like the United States, China, and India expressed reservations, limiting
the ICC’s effectiveness.

Nevertheless, the ICC represented a step toward a global justice system where no
individual, regardless of rank, is immune from prosecution. International criminal
law continues to evolve, with cases like the prosecution of former Chilean dictator
Augusto Pinochet demonstrating that the era of immunity is coming to an end.
The growing influence of human rights organizations and the expansion of
international legal institutions indicate a shift towards greater accountability. The
past century has seen significant progress in the development of international
criminal law, yet challenges remain. The need for a reformed and more effective
international justice system is crucial to ensuring global peace and security.
Looking ahead, legal frameworks must continue to adapt to new threats, and
nations must commit to enforcing international law consistently. Only through a
strong and impartial legal system can humanity hope to prevent future atrocities
and uphold the principles of justice.

b) Sources of International Criminal Law

As international criminal law is a subset of public international law, the sources

of ICL are largely the same as those of public international law. The five sources
of ICL used by international and hybrid criminal courts generally are:

1)Treaty Law

ICL has many treaty sources. These range from obvious examples such as the
Genocide Convention and the grave breaches provisions of the four 1949 Geneva
Conventions to relevant human rights treaties and treaties that are not as widely
ratified as the Geneva Conventions, including the:

3
• Rome Statute of the International Criminal Court;

• 1977 Additional Protocol II to the Geneva Conventions (AP II);

• Convention for the Protection of Human Rights and Fundamental Freedoms

(European Convention on Human Rights);

• Pact on Security, Stability and Development in the Great Lakes Region (2006)
and its Protocol on the Prevention and the Punishment of the Crime of Genocide,
War Crimes and Crimes against Humanity and all forms of Discrimination (Great
Lakes Pact and Protocol); and

• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment.

2) Customary International Law (Custom, Customary Law)

Custom is generally understood as consisting of:

• state practice and

• opinio juris

The state practice must be consistent, uniform and general among the relevant
states, although it does not have to be universal. Opinio juris can be defined as a
general belief or acceptance among states that a certain practice is required by
law. This sense of legal obligation, coupled with state practice, differentiates
custom from acts of courtesy, fairness or mere usage.

Custom can originate in treaties, and treaties can constitute evidence of custom.
Treaties can also be an aid to interpreting custom. The same rule can exist
simultaneously in treaty law and custom; the definition of genocide and the grave
breaches provisions of the Geneva Conventions are examples. Treaties sometimes
codify customary law existing at the time. The Rome Statute of the ICC does so
4
to a certain degree, but some of its provisions are more restrictive than custom,
while others are less restrictive than custom. Likewise, some elements of the
definition of crimes in the ICTY and ICTR Statutes go beyond what was
customary law at the time.

3) General Principles of Law

These principles are formulated through the process of examining the national
laws and practices of principal legal systems of the world in order to determine
whether the court could deduce a common approach. If a common approach
exists, the court could derive a general principle of law that could be applied in
the ICL context. Not all nation’s practices need to be reviewed—only enough to
show that most nations within the various systems of law (e.g., common law and
civil law) recognise a principle of law. Where a principle “is found to have been
accepted generally as a fundamental rule of justice by most nations in their
municipal law, its declaration as a rule of international law would seem to be fully
justified.” Where national approaches are too divergent, such a finding is
precluded.

4) Judicial Decisions (Subsidiary Source) and Learned Writings (Subsidiary

Source)

The ICTY and ICTR refer to and generally follow their earlier jurisprudence,
although they are not always bound to do so. Trial chambers are not obligated to
follow the decisions of other trial chambers, but they must follow the decisions
of the appeals chamber. The appeals chamber may depart from its own prior
decisions, but only in exceptional situations when it is in the interests of justice
to do so.

The ICTY and ICTR have also referred to judicial decisions of national courts
and other international courts, including the ICJ, the International Military
Tribunal at Nuremberg (Nuremberg tribunal), other post-World War II courts, the

5
European Court of Human Rights (ECtHR). They have usually done so when
looking for evidence of custom. They have similarly considered the publications
of international authorities, including scholarly writings and reports of relevant
bodies such as the International Law Commission and International Committee
of the Red Cross (ICRC).

Other international, hybrid and national courts often adopt the same approach.
They do not apply ICTY or ICTR decisions as law. But they often consider, for
example, ICTY and ICTR findings on customary law or general principles of law,
what meaning the ICTY and ICTR gave to a particular treaty provision, or the
relevance and persuasiveness of ICTY and ICTR reasoning when interpreting
their own law

Link for detailed Sources-Lxink

c) Principles and objectives of International Criminal Law

Objectives:

1) Retribution (with nuances): While retribution remains a core principle,

modern interpretations emphasize its role in expressing societal
condemnation and affirming shared values. It's not simply about revenge
but about restoring a sense of justice and order. Research also explores the
potential for restorative justice elements within ICL, focusing on repairing
harm and facilitating reconciliation between victims and offenders,
although this is still developing.
2) Deterrence (beyond simple prevention): Deterrence in ICL is complex.
Beyond preventing future atrocities, it also aims to delegitimize such
crimes and reinforce international norms. Research suggests that the
certainty of punishment, rather than its severity, is more effective as a
deterrent. Furthermore, ICL can contribute to a culture of accountability,
making it less likely that future leaders will engage in mass atrocities.

6
3) Effective Implementation (and due process): Effective implementation
must be balanced with robust due process guarantees. This includes not
only fair trials but also access to legal representation, protection of witness
testimony, and respect for the rights of the accused. Research highlights
the challenges of achieving this balance, particularly in resource-
constrained contexts.
4) Peace and Reconciliation (multifaceted approach): ICL's contribution
to peace and reconciliation is not automatic. It must be part of a broader
strategy that addresses the root causes of conflict, promotes transitional
justice mechanisms (truth commissions, reparations programs), and
fosters inclusive governance. Research emphasizes the importance of
local ownership and participation in these processes. ICL can play a role
by providing a factual record of past abuses, holding perpetrators
accountable, and giving voice to victims. However, it can also be divisive
if perceived as selective or biased.
5) Truth-Seeking (and historical narrative): While trials can contribute to
truth-seeking, they are limited in scope and focus. Research emphasizes
the need for complementary mechanisms, such as truth commissions and
historical inquiries, to provide a more comprehensive understanding of
past events. ICL judgments can be valuable sources for historians, but they
should be used critically, recognizing their legal purpose and limitations.
Furthermore, the narratives constructed through ICL processes can be
contested, highlighting the importance of diverse perspectives and
historical interpretations.
6) Expeditious Proceedings (and resource constraints): The right to a
timely trial is fundamental, but international criminal tribunals often face
significant resource constraints and logistical challenges. Research
explores innovative approaches to streamline proceedings without

7
 sacrificing fairness, such as improved case management, greater use of
technology, and cooperation with national jurisdictions.
7) Victim Rights (and empowerment): The focus on victim rights in ICL
has expanded beyond participation and reparation to include
empowerment and recognition. Research highlights the importance of
providing victims with psychosocial support, ensuring their safety and
security, and giving them a meaningful voice in the justice process.
However, challenges remain in implementing these rights effectively,
particularly in contexts where victims are marginalized or stigmatized.
8) State Sovereignty (and international cooperation): The tension
between state sovereignty and international criminal jurisdiction remains
a key challenge. While the principle of complementarity recognizes the
primacy of national jurisdictions, it also underscores the international
community's responsibility to intervene when states are unwilling or
unable to genuinely address atrocity crimes. Research emphasizes the
importance of strengthening international cooperation and capacity-
building to support national efforts to investigate and prosecute these
crimes.
9) Norm Harmony (and universal jurisdiction): ICL contributes to norm
harmony by promoting shared standards of criminal justice and human
rights. The increasing acceptance of universal jurisdiction for certain
atrocity crimes further strengthens this trend, allowing national courts to
prosecute individuals for crimes committed elsewhere, regardless of the
perpetrator's nationality or the location of the crime. Research explores
the potential and limitations of universal jurisdiction in promoting
accountability and deterring future crimes.
10) Reparations: The development of reparations mechanisms is a growing
area within ICL. This goes beyond individual compensation to include
collective reparations, such as memorials, apologies, and institutional

8
 reforms, aimed at addressing the long-term consequences of mass
atrocities. Research is exploring the effectiveness of different reparations
models and their impact on victims and affected communities.

Principles-

• refer here
• here also
• principle of legality- The principle of legality is a legal principle that
states that no one can be punished without a clear law that defines the
crime and the penalty. It also prohibits the retroactive application of the
law.
­ Nullum crimen, nulla poena sine lege
­ enshrined in Article 15 of the International Covenant on Civil and
Political Rights
­ The ICC Statute contains a specific provision on the principle of
legality (Art. 22).

• principle of non-retroactivity: The principle of non-retroactivity states

that the law proscribing a given act must have existed before the act in
question occurred. As such, this principle prohibits the retroactive
application of the law.
• principle of specificity: Requires that the definition of the proscribed
act be sufficiently precise, while the prohibition of analogy requires the
definition to be strictly construed. The principle of specificity in criminal
law requires that criminal laws clearly define prohibited acts.
• Ne bis in idem: no person should be tried or punished more than once
for the same crime. It ensures fairness for defendants since they can be
sure that the judgment will be final and protects against arbitrary or
malicious prosecution at both domestic and international level.

9
The ICTY, ICTR and ICC Statutes all provide for the possibility of
trying an individual for conduct that was already the subject of
proceedings at national level where the proceedings were designed to
shield the person from criminal responsibility at international level (Art.
10(2)(b), ICTY Statute; Art 9(2)(b), ICTR Statute; Art. 20(3)(a), ICC
Statute).

10
2
Universal jurisdiction:
No link required (e.g.,
war crimes, genocide)

.)
4
Serious crimes not time-barred Ne Bis in Idem
Provision: Rome Statute Art. 29, UN
No double trial for same conduct
Convention on Non-Applicability

Principle of Legality
ADVISORY SERVICE
Exceptions for sham or shielded trials

3)
No punishment without pre-existing law
ON INTERNATIONAL HUMANITARIAN
Provisions: LAW
Rome Statute Art. 20, ICTY Art. 10, ICTR Art. 9
Includes: non-retroactivity, specificity, no
analogy
____________________________________

Provisions: ICCPR Art. 15, Rome Statute Art.

22

General principles of international criminal law

International criminal law is the body of law that prohibits certain categories of conduct deemed to be serious
crimes, regulates procedures governing investigation, prosecution and punishment of those categories of
conduct, and holds perpetrators individually accountable for their commission. The repression of serious
violations of international humanitarian law is essential for ensuring respect for this branch of law, particularly in
view of the gravity of certain violations, qualified as war crimes, which it is in the interest of the international
community as a whole to punish. There are several basic principles upon which international criminal law is
based. Since international crimes increasingly include extraterritorial elements, requiring enhanced interaction
between States, it is becoming more pressing to coordinate respect for these principles. States must uphold them
while also respecting their own national principles of criminal law and any specific principles outlined in the
instruments of the regional bodies to which they are party.

Bases of jurisdiction • the protective principle and by certain international

1
(acts affecting the security treaties.
A State exercises jurisdiction of the State). Statutory limitations
within its own territory. Such
jurisdiction includes the power While these principles enjoy Time-barring, or the application
to make law, to interpret or varying levels of support in of a statutory limitation on legal
apply the law, and to take State practice and opinion, they action in the event of an
action to enforce the law. While all require some link between offence, may relate to either of
enforcement jurisdiction is the act committed and the State two aspects of legal
generally limited to national asserting jurisdiction. Universal proceedings.
territory, international law jurisdiction, a further basis for • The time bar may apply to
recognizes that in certain asserting extraterritorial prosecution: if a certain
circumstances a State may jurisdiction, requires no such time has elapsed since the
legislate for, or adjudicate on, link. breach was committed, this
events occurring outside its would mean that no public
territory. Universal jurisdiction is the action could be taken and
assertion of jurisdiction over that no verdict could be
A number of principles have offences regardless of the reached.
been invoked as the basis for place where they were • The limitation may apply
extraterritorial jurisdiction. committed and the nationalities only to the application of
These include: of the perpetrator or of the the sentence itself: in this
• the nationality or active victims. Universal jurisdiction is case, the fact that a certain
personality principle (acts held to apply to the core amount of time had
committed by persons international crimes, namely elapsed would mean that
having the nationality of the war crimes, crimes against the criminal sentence could
forum State); humanity and genocide, whose not be applied.
• the passive personality repression by all States is
principle (acts committed justified or required as a matter
against nationals of the of international public policy 1
For a more in-depth discussion of
forum State); or universal jurisdiction, please refer
to the Advisory Service Factsheet
entitled “Universal jurisdiction over
war crimes”.
Most legal systems have time Customary international law occurred. As such, this principle
bars for minor offences. But for prohibits the retroactive
serious crimes, several legal Several factors have helped application of the law. The
systems, in particular those bring to the fore the customary principle of specificity requires
based on common law, do not nature of war crimes and that the definition of the
permit a time bar for crimes against humanity and proscribed act be sufficiently
prosecution. Legislatures in the non-applicability of statutory precise, while the prohibition of
countries where civil law limitations to them: analogy requires the definition
prevails have either established • the growing number of to be strictly construed.
time bars for serious crimes States having stipulated
that are much longer than those the non-applicability of Ne bis in idem
for misdemeanours, or statutory limitations to
excluded this type of crime these crimes in their penal This Latin maxim enunciates
altogether from the effect of legislation; the principle that no person
statutory time limitations. • the codification of this should be tried or punished
concept in Article 29 of the more than once for the same
The time-barring of the ICC Statute, which its crime. It ensures fairness for
application of criminal penalties drafters considered crucial defendants since they can be
is less prevalent. It does not to preventing impunity for sure that the judgment will be
exist at all in common law, and these crimes; final and protects against
is extremely restricted in other • the growing number of arbitrary or malicious
systems. Where it does exist, States party to United prosecution at both domestic
the time bars are generally very Nations and Council of and international level. Further,
long for the most serious Europe conventions. this principle endeavours to
offences and do not apply for ensure that investigations and
certain types of offences or in Nullum crimen, nulla poena prosecutions are scrupulously
cases involving dangerous or sine lege initiated and carried out.
repeat offenders.
Also known as the principle of It is important to note that the
The absence of statutory legality, this principle, which is specific application of ne bis in
limitations for certain crimes enshrined in Article 15 of the idem at the international level
in international law International Covenant on Civil depends upon its formulation in
and Political Rights, states that the relevant statutes of
The 1949 Geneva Conventions no one may be convicted or international tribunals. For
and their 1977 Additional punished for an act or omission example, the Statutes of the
Protocols are silent on the that did not violate a penal law International Criminal Tribunals
subject of time bars for war in existence at the time it was for the former Yugoslavia
crimes. committed. Therefore, the (ICTY) and Rwanda (ICTR)
existence of a particular crime provide that no national court
The United Nations Convention depends on the existence of may try a person for acts
on the Non-Applicability of legislation stating that the already tried before the
Statutory Limitations to War particular act is an offence, and international tribunal, while
Crimes and Crimes against for a specific penalty to be under certain specific
Humanity applies to both imposed for that offence, the circumstances the international
prosecution and application of legislation in force at the time of tribunal may try a person that a
sentences, and covers war its commission must include national court has already tried.
crimes – in particular grave that particular penalty as one of The ICC Statute provides for a
breaches of the Geneva the possible sanctions for that slightly different application of
Conventions – and crimes crime. The purpose of this the principle of ne bis in idem in
against humanity, including principle is to ensure that that a person may be tried at
apartheid and genocide, legislation is specific and national level for conduct which
committed in times of war and predictable so that individuals already constituted the basis of
of peace. It is retroactively may reasonably foresee the a conviction by the ICC. The
effective, insofar as it abolishes legal consequences of their ICTY, ICTR and ICC Statutes
time bars that had previously actions. The ICC Statute all provide for the possibility of
been established pursuant to contains a specific provision on trying an individual for conduct
laws or to other enactments. the principle of legality (Art. 22). that was already the subject of
proceedings at national level
Further, the Rome Statute of The principle of legality is where the proceedings were
the International Criminal Court associated with the principle of designed to shield the person
(ICC) stipulates the non- non-retroactivity, the principle from criminal responsibility at
applicability of statutory of specificity, and the international level (Art. 10(2)(b),
limitations for war crimes, prohibition of analogy. The ICTY Statute; Art 9(2)(b), ICTR
crimes against humanity, principle of non-retroactivity Statute; Art. 20(3)(a), ICC
genocide and the crime of states that the law proscribing a Statute).
aggression (Art. 29). given act must have existed
before the act in question
 5)
• Personal immunity Criminal Responsibility
protects the acts of Includes: commission, attempt, aid,
Forms of criminal persons essential to a instigation
responsibility State’s administration,
whether in their Command responsibility: for failing to
Individual criminal responsibility personal or official prevent crimes
capacity, for the
International criminal law allows duration of their term Provisions: Rome Statute Arts. 25–28
for individuals to be held in office. (implied)
criminally responsible not only • Functional immunity
for committing war crimes, protects official acts of
crimes against humanity and State representatives
genocide, but also for carrying out their
attempting, assisting in, functions for the State
facilitating or aiding and and continues to
abetting the commission of protect those acts after
such crimes. Individuals may the end of their term in

⑥
also be held criminally office.
responsible for planning and Immunity thus acts as a Immunity
even instigating the procedural bar to the initiation
commission of such crimes. of proceedings against No immunity for international crimes (personal or
functional)
protected persons by foreign
Command responsibility jurisdictions; the official’s State
Provisions: Rome Statute Arts. 27 & 98
of nationality may nevertheless
Violations of international waive the immunity.
criminal law can also result
from a failure to act. Armed The ICTY, ICTR and ICC
forces or groups are generally Statutes explicitly exclude the
placed under a command that availability of functional
is responsible for the conduct of immunities in cases of
its subordinates. As a result, in international crimes (Art. 7(2),
order to make the system ICTY Statute; Art. 6(2), ICTR
effective, hierarchical superiors Statute; Art. 27(1), ICC
should be held to account when Statute). Only the ICC Statute
they fail to take proper expressly excludes the
measures to prevent their availability of personal
subordinates from committing immunities in cases of
serious violations of international crimes (Art. 27(2)).
international humanitarian law.
They may therefore be held to Indeed, the ICC Statute goes
be criminally responsible for so far as to require States to
criminal activities to which they remove immunities regarding
2
made no personal contribution. the perpetration of international
crimes by enacting appropriate
Immunity legislation in their national law
(Arts 27 and 88). In practice,
Immunities flow from the idea of the ICTY indicted two sitting
State sovereignty. Traditionally, Heads of State although the
State representatives were court’s jurisdiction was only
granted immunity from foreign effectively exercised once they
jurisdiction. The purpose of had left office. The waiver of
immunity is to allow State immunity is qualified in Article
representatives to effectively 98(1) of the ICC Statute with
exercise their official functions respect to non-party States
and represent the State in
international relations. Two
types of immunity have
emerged.

2
For more information, please refer
to the Advisory Service Factsheet
entitled “Command responsibility
and failure to act”.

03/2014
 MODULE-2

ESTABLISHMENT OF MIXED COURTS

C) ESTABLISHMENT OF INTERNATIONALIZED AND MIXED COURTS

Mixed criminal tribunals, also known as hybrid courts, represent a unique

experiment in international criminal justice, designed to address egregious human
rights violations and war crimes within specific national contexts. These courts
blend elements of international and domestic law and personnel, creating a hybrid
structure intended to bridge the gap between purely international tribunals and
national judicial systems.

Mixed criminal tribunals, or hybrid courts, represent a significant innovation in

international criminal justice, addressing severe human rights violations and war
crimes within specific national contexts. These courts blend international and
domestic law and personnel, creating a hybrid structure aimed at bridging the gap
between purely international and national judicial systems. Their defining
characteristic is mixed composition, comprising international and domestic
judges, prosecutors, and staff. This combination leverages the expertise and
impartiality of international actors with the local knowledge and legitimacy of
domestic personnel. International staff bring experience in international criminal
law, ensuring adherence to global fairness standards, while domestic staff possess
crucial linguistic and cultural understanding, aiding investigations and
community engagement.

The legal framework is equally hybrid, applying a combination of international

and domestic substantive and procedural law. International law, often derived
from treaties and customary international law, provides the basis for prosecuting
core international crimes. Domestic law fills gaps, addresses local circumstances,
and grounds proceedings in the affected state's legal traditions. This fusion allows

11
the tribunals to address context-specific crimes while upholding international
justice standards.

Mixed tribunals arise from the limitations of purely international and national
systems. International tribunals can be perceived as distant, while national courts
may be weak or biased. Hybrids combine the strengths of both. They also
strengthen domestic judicial capacity. Local legal professionals gain experience
in international criminal law, contributing to long-term institutional reform.
Finally, they play a vital role in reconciliation and transitional justice, holding
perpetrators accountable and fostering a sense of justice.

Challenges include balancing international and domestic influence, ensuring staff

independence, and navigating merged legal systems. Despite these challenges,
mixed tribunals have become increasingly important, representing a pragmatic
approach to mass atrocities, combining international and domestic legal systems
to promote accountability, justice, and reconciliation. Further research is crucial
to evaluate their long-term impact and refine their design.

A) NUREMBERG TRIBUNAL

The Nuremberg Tribunal stands as a pivotal moment in the history of international

law, marking a significant step towards holding individuals accountable for war
crimes, crimes against peace, and crimes against humanity.

The Nuremberg Trials were a series of trials held after World War II to prosecute
Nazi leaders for war crimes, crimes against humanity, and conspiracy. The trials
took place in Nuremberg, Germany from 1945 to 1949.

Origins and Motivation:

Even before the end of World War II, the Allied powers (US, USSR, Great Britain,
and France) recognized the need to address the atrocities committed by the Nazi
regime. The Moscow Declaration of 1943 signalled their intent to prosecute Nazi

12
war criminals. This commitment was solidified after Germany's surrender,
culminating in the London Agreement of August 8, 1945, which established the
International Military Tribunal (IMT). This initiative was driven by a desire to
avoid the failures of post-World War I attempts at prosecution, specifically the
weak Leipzig Trials, which had undermined international justice efforts. The
experience of the failed Leipzig trials strengthened the resolve of the Allies in
1945 to prosecute Nazi war crimes themselves.

Legal Basis and Scope:

The IMT was groundbreaking in its approach. For the first time, an international
tribunal was authorized to hold individual leaders accountable for crimes under
international law, including:

• Crimes against Peace: Planning, preparing, initiating, or waging a war of

aggression, or a war in violation of international treaties, agreements, or
assurances.

• War Crimes: Violations of the laws or customs of war, including, but not
limited to, murder, ill-treatment or deportation to slave labor or for any
other purpose of the civilian population of or in occupied territory, murder
or ill-treatment of prisoners of war or persons on the seas, killing of
hostages, plunder of public or private property, wanton destruction of
cities, towns or villages, or devastation not justified by military necessity.

• Crimes against Humanity: Murder, extermination, enslavement,

deportation, and other inhumane acts committed against any civilian
population, before or during the war, or persecutions on political, racial or
religious grounds in execution of or in connection with any crime against
peace or war crimes, whether or not in violation of the domestic law of the
country where perpetrated.

13
Structure and Personnel:

The IMT comprised judges and prosecutors from each of the four Allied powers:

• Judges: Each nation appointed a primary judge and an alternate. Notable

figures included Sir Geoffrey Lawrence (Great Britain, and President of
the IMT), Francis Biddle (US), Henri Donnedieu de Vabres (France), and
Iona T. Nikitchenko (USSR).

• Prosecutors: Each nation also appointed a Chief Prosecutor. Key figures

included Robert H. Jackson (US), Sir Hartley Shawcross (Great Britain),
François de Menthon/Auguste Champetier de Ribes (France), and Roman
A. Rudenko (USSR). Jackson played a particularly influential role in
shaping the trial's procedures.

Location and Significance:

While Berlin was designated as the permanent seat of the tribunal, the trials
themselves were held in Nuremberg, Germany. The Nuremberg trials were a
landmark event, establishing crucial precedents for international criminal law and
solidifying the principle that individuals, regardless of their position, can be held
accountable for their crimes against humanity. The tribunal's legacy continues to
shape international justice efforts to this day.

B) TOKYO TRIBUNAL

The Tokyo War Crimes Tribunal, formally the International Military Tribunal for
the Far East (IMTFE), stands as a significant event in the history of international
law and the pursuit of justice following wartime atrocities. Established in the
aftermath of World War II, the IMTFE aimed to hold Japanese political and
military leaders accountable for their actions during the war, mirroring the
Nuremberg Trials in Europe. However, the Tokyo Tribunal differed in its origins,

14
composition, and specific context, offering a unique case study in international
criminal justice.

Origins and Legal Basis:

Unlike the Nuremberg IMT, which stemmed from a formal international

agreement (the London Agreement), the IMTFE was established through a
proclamation by General Douglas MacArthur, the Supreme Commander for the
Allied Powers in occupied Japan. This proclamation, issued in January 1946,
derived its authority from the Potsdam Declaration (July 1945), where the Allied
powers (China, UK, and US) declared their intent to prosecute war criminals, and
the subsequent Moscow Conference (December 1945), which outlined the
framework for the occupation of Japan. This unique genesis raises questions
about the tribunal's legitimacy and its basis in international law, particularly given
the absence of a formal treaty.

Composition and Jurisdiction:

The IMTFE's composition reflected the Allied nations involved in the Pacific
theater. Judges were appointed by MacArthur from ten nations: Australia,
Canada, China, France, India, the Netherlands, the Philippines, the Soviet Union,
the UK, and the US. This diverse composition aimed to represent the international
community's interest in justice. The tribunal's jurisdiction covered a broader
timeframe than Nuremberg, extending back to the 1931 Japanese invasion of
Manchuria, recognizing the prolonged nature of Japanese aggression. The
IMTFE, like Nuremberg, had jurisdiction over Crimes Against Peace, War
Crimes, and Crimes Against Humanity, with definitions mirroring those
established at Nuremberg. This adoption of similar legal frameworks suggests a
growing consensus on the nature of international crimes.

15
Key Features and Controversies:

• Absence of Emperor Hirohito's Prosecution: A significant point of

contention surrounds the decision not to indict Emperor Hirohito. Despite
his symbolic role and potential influence, the Allied powers opted to
preserve his position, albeit with diminished power, for the sake of political
stability in occupied Japan. This decision raises questions about the
selective application of justice and the influence of political considerations
on international legal processes.

• Focus on Military and Political Leaders: The IMTFE primarily targeted

high-ranking military and political figures, reflecting a top-down approach
to accountability. While this focused on those with the greatest
responsibility, it potentially overlooked the culpability of lower-ranking
individuals and the systemic nature of wartime atrocities.

• Long Duration and Complexities: The trial lasted over two years,
highlighting the complexities of prosecuting war crimes on such a large
scale. Gathering evidence, examining witnesses, and navigating linguistic
and cultural barriers presented significant challenges.

Legacy and Significance:

Despite its controversies, the Tokyo Tribunal, along with the Nuremberg Trials,
played a crucial role in the development of international criminal law. It
established precedents for holding individuals accountable for war crimes, crimes
against peace, and crimes against humanity, contributing to the eventual
development of international criminal courts and tribunals in the late 20th and
early 21st centuries. The IMTFE's legacy remains a subject of ongoing debate,
particularly concerning issues of selective justice, the omission of certain
individuals from prosecution, and the long-term impact on Japanese society and
its understanding of its wartime past.

16
 Summary
Chart
ESTABLISHMENT OF INTERNATIONALIZED
AND MIXED COURTS
1
Mixed (Hybrid) Criminal Tribunals – Quick Summary
Definition: Courts combining international & domestic law and personnel to try
serious crimes (e.g., war crimes, genocide).

Key Features:
& Mixed composition: international + national judges/staff

Apply both international treaties/customary law & national laws

· Enhance legitimacy and local relevance

Build domestic legal capacity

& Address weak or biased national systems

& Promote accountability & reconciliation

Examples of Mixed (Hybrid) Criminall Tribunals

Special Court for Sierra Leone (SCSL)

– Tried war crimes from civil war
– Convicted Charles Taylor (Liberia)

Extraordinary Chambers in the Courts of Cambodia (ECCC)

– Tried Khmer Rouge leaders
– Combined Cambodian and international law

Special Tribunal for Lebanon (STL)

– Investigated 2005 assassination of PM Rafic Hariri
– Applied Lebanese law with international judges

War Crimes Chamber, Bosnia and Herzegovina

– Handled post-Bosnian War crimes
– Integrated international judges, later localized
 MODULE-3

STATE JURISDICTION AND INTERNATIONAL CRIMES

A. INTERNATIONAL LAW AND THE AMBIT OF STATES CRIMINAL

JURISDICTION

CONCEPT AND SCOPE OF CRIMINAL JURISDICTION

Jurisdiction refers to the authority of a State to apply its laws to persons, property,
or events. In international law, it is categorized into:

• Legislative Jurisdiction – The power to make laws.

• Judicial Jurisdiction – The power to adjudicate cases.

• Enforcement Jurisdiction – The power to enforce laws through police or

other state mechanisms.

Criminal jurisdiction specifically deals with the prosecution and punishment of

crimes. It differs from civil jurisdiction, which governs private disputes, and
administrative jurisdiction, which applies to regulatory matters.

Basis for Exercising Criminal Jurisdiction

A State may assert its criminal jurisdiction based on the following principles:

• Territorial Principle – Crimes committed within a state’s territory fall

under its jurisdiction. The territorial principle is the most widely accepted
and fundamental basis for a State’s criminal jurisdiction. It allows a State
to prosecute crimes committed within its geographical borders, regardless
of the nationality of the perpetrator or victim. This principle ensures that
each State has the authority to maintain law and order within its territory.

Types of Territorial Jurisdiction:

17
 o Subjective Territoriality: If the crime begins within a State’s
borders, the State can claim jurisdiction even if the effects extend
beyond its borders. For example, if a person in France launches a
cyberattack on a U.S. server, France can prosecute the offender.
o Objective Territoriality (Effects Doctrine): A State can assert
jurisdiction if a crime committed outside its borders has a
significant impact within its territory. For instance, a fraud scheme
operated from another country but affecting victims within the U.S.
can lead to prosecution in U.S. courts.
Example: In the case of United States v. Aluminium Co. of America
(1945), U.S. courts exercised jurisdiction over an antitrust violation
committed outside the U.S. but affecting the American economy.

• Nationality (Active Personality) Principle – A State can prosecute its

nationals for crimes committed abroad. The nationality principle allows a
State to prosecute its own nationals for crimes they commit abroad. This
principle is based on the idea that a person carries their legal obligations
with them, regardless of where they are in the world.

This jurisdiction ensures that nationals are not able to evade justice by
committing crimes in countries with weaker legal systems. Many civil law
countries, such as France and Germany, have strong nationality-based
jurisdiction because they historically refused to extradite their own
citizens.

Example:

o The UK Sexual Offences Act (2003) allows British nationals to be

prosecuted for committing sexual offenses against children abroad,

18
 even if those acts are legal in the foreign country where they
occurred.
o In the Joyce v. DPP (1946) case, a British citizen was prosecuted
for treason committed while abroad during World War II.

• Passive Personality Principle – A State may claim jurisdiction if its

nationals are victims of a crime, even if the crime occurs abroad. This
principle allows a State to exercise jurisdiction over crimes committed
against its nationals, regardless of where the crime occurred. While
traditionally considered controversial, it has gained wider acceptance,
especially for serious crimes such as terrorism and war crimes.

This principle is particularly useful when the State where the crime
occurred is unwilling or unable to prosecute the offender. It ensures that
victims of serious crimes receive justice through their home country's legal
system.

Example:

o The Achille Lauro Hijacking (1985): Palestinian terrorists

hijacked an Italian cruise ship and killed an American citizen. The
U.S. asserted passive personality jurisdiction to prosecute those
responsible.

o The U.S. Omnibus Diplomatic Security and Antiterrorism Act

(1986) allows the U.S. to prosecute terrorists who target American
citizens abroad.

• Protective Principle – Crimes that threaten national security (such as

espionage or counterfeiting) can be prosecuted regardless of where they
occur. The protective principle grants a State jurisdiction over offenses

19
 committed outside its territory if they threaten the State’s security,
institutions, or critical interests. This principle applies even if the crime is
committed by a foreign national and has no direct impact within the
prosecuting State’s borders.

Crimes covered under this principle typically include:

­ Espionage (spying on government secrets).

­ Counterfeiting currency or official documents.

­ Attacks on embassies or diplomatic personnel.

­ Terrorist acts against national security.

Example:

o The Eichmann Case (1961): Adolf Eichmann, a key Nazi official, was
abducted from Argentina and prosecuted in Israel for crimes against the
Jewish people. Israel invoked the protective principle to justify the
prosecution.

o U.S. v. Bin Laden (2000): The U.S. used this principle to prosecute
individuals responsible for bombing U.S. embassies in Kenya and
Tanzania.

• Universal Jurisdiction – Certain crimes, like genocide or piracy, are so

grave that any State can prosecute them, even if there is no direct
connection to the crime. Universal jurisdiction allows any State to
prosecute certain grave crimes, regardless of where they were committed,
who committed them, or who the victims were. This principle applies to
crimes that are considered so heinous that they are crimes against humanity
as a whole.

20
 Crimes typically covered under universal jurisdiction include:

­ Genocide (extermination of a group based on ethnicity, nationality, or

religion).

­ War Crimes (grave breaches of the Geneva Conventions, such as

attacking civilians).

­ Crimes Against Humanity (widespread or systematic attacks on

civilians, such as apartheid or mass enslavement).

­ Torture (prohibited under the UN Convention Against Torture).

­ Piracy (historically one of the first crimes subject to universal

jurisdiction).

Example:

o The Pinochet Case (1998): Spain sought the extradition of former

Chilean dictator Augusto Pinochet from the UK for human rights
violations committed in Chile. The case was based on universal
jurisdiction for crimes against humanity.

o Nuremberg Trials (1945-46): Nazi leaders were prosecuted under

universal jurisdiction for war crimes and crimes against humanity.

o The Geneva Conventions (1949): These treaties establish universal

jurisdiction over grave breaches of international humanitarian law.

B. PRINCIPLES OF CRIMINAL JURISDICTION

1. Territorial Jurisdiction

This is the most commonly exercised jurisdiction and is divided into:

21
 • Subjective Territoriality – If a crime is initiated within a State’s borders,
that State can prosecute the offender, even if the effects of the crime occur
elsewhere.

• Objective Territoriality – If a crime is committed outside a State’s borders

but has substantial effects within the State, it can claim jurisdiction.

For example, in United States v. Aluminum Co. of America (1945), U.S. courts
asserted jurisdiction over anti-competitive practices affecting the U.S. economy,
even though the companies involved were located outside the country.

2. Nationality (Active Personality) Principle

Under this principle, a State can prosecute its own nationals for crimes committed
abroad. Many civil law countries have used this principle to avoid impunity,
particularly when they do not extradite their nationals.

Example: The UK’s Sexual Offences Act (2003) allows prosecution of British
nationals who commit sexual offenses against children overseas, regardless of the
laws of the country where the crime occurred.

3. Passive Personality Principle

This principle allows a State to prosecute offenders who commit crimes against
its citizens abroad. While initially controversial, it has gained acceptance,
especially in terrorism-related cases.

Example: The Achille Lauro Affair (1985), where a Palestinian terrorist group
hijacked an Italian cruise ship and killed an American citizen, led the U.S. to
apply passive personality jurisdiction to prosecute terrorists targeting its nationals
abroad.

4. Protective Principle

22
A State may exercise jurisdiction over acts committed abroad that threaten its
national security or vital interests. This includes:

• Espionage (e.g., In Re Urios, France, 1920 – prosecution for foreign

espionage).

• Counterfeiting national currency.

• Attacks on diplomatic missions (e.g., U.S. embassy bombings in Kenya

and Tanzania).

• The Eichmann Case (1961) – Israel invoked the protective principle to

justify abducting and prosecuting Adolf Eichmann, a key organizer of the
Holocaust.

5. Universal Jurisdiction

Universal jurisdiction allows any State to prosecute serious international crimes,

regardless of where they occur or who is involved. Crimes commonly subject to
universal jurisdiction include:

• War Crimes (grave breaches of the Geneva Conventions).

• Crimes Against Humanity (e.g., genocide).

• Piracy (recognized under customary international law).

• Torture (under the UN Convention Against Torture, 1984).

This principle was used in Spain’s extradition request for Chilean dictator
Augusto Pinochet (1998) under universal jurisdiction for crimes against
humanity.

23
 C. INTERNATIONAL RULES ON STATES’S CRIMINAL JURISDICTION OVER
INTERNATIONAL CRIMES

International courts play a crucial role in addressing crimes that cross national
boundaries. The International Criminal Court (ICC), the International Criminal
Tribunal for the Former Yugoslavia (ICTY), and the International Criminal
Tribunal for Rwanda (ICTR) have been established to prosecute the most serious
crimes.

The Rome Statute (1998) established the ICC, which operates under the principle
of complementarity—meaning national courts have primary jurisdiction unless
they fail to prosecute. The UN Security Council can also refer cases to the ICC
(e.g., Darfur genocide case, 2005).

Immunities and Limitations on Jurisdiction

One major limitation on criminal jurisdiction is the doctrine of sovereign

immunity, which protects sitting heads of State and government officials from
prosecution in foreign courts. However, this protection does not extend to:

• Crimes against humanity and war crimes, as seen in the Pinochet case
(UK, 1998), where Chile’s former dictator was arrested for human rights
abuses.

• The Nuremberg Trials (1945-46), which rejected immunity defenses for

Nazi leaders.

Enforcement Challenges in International Jurisdiction

While national courts may claim jurisdiction over international crimes,

enforcement is complex due to:

• Extradition limitations – Some States refuse to extradite their nationals.

24
 • Political factors – Governments may be reluctant to prosecute foreign
officials.

• Transboundary abductions – The Alvarez-Machain case (1992) saw

U.S. agents abduct a Mexican doctor for trial in the U.S., leading to legal
debates on extraterritorial enforcement.

To overcome these issues, States rely on mutual legal assistance treaties

(MLATs) and extradition agreements to ensure justice is served while
respecting sovereignty.

CONCLUSION

State jurisdiction in international law is complex, involving overlapping claims

based on territoriality, nationality, protection of national interests, and universal
values. While international tribunals such as the ICC provide mechanisms for
addressing crimes of global concern, national courts remain central actors in
prosecuting offenders. However, enforcement challenges, political
considerations, and jurisdictional conflicts often complicate the effective
application of criminal jurisdiction. Addressing these issues requires continued
international cooperation, treaty frameworks, and the strengthening of legal
institutions

25
 MODULE-4

LEGAL IMPEDIMENTS TO STATES’S CRIMINAL JURISDICTION AND SOLUTION

States often encounter legal barriers when trying to assert criminal jurisdiction,
especially in cases involving international crimes. These impediments arise due
to principles of sovereignty, immunity, lack of extradition agreements,
jurisdictional conflicts, and insufficient judicial cooperation. However,
international law provides mechanisms to overcome these challenges. Below are
the main legal impediments and possible solutions.

A) AMNESTY

Amnesty, derived from the Greek word "amnestia" (meaning "forgetfulness"), refers to a legal
measure that grants immunity from prosecution to individuals accused of crimes, including
international crimes such as genocide, war crimes, and crimes against humanity. While
amnesty is often used as a tool to promote peace and national reconciliation, it presents
significant challenges to the enforcement of criminal jurisdiction at both national and
international levels. The International Criminal Court (ICC) and other legal frameworks
struggle to balance the need for justice with the political necessity of amnesty agreements in
post-conflict transitions.

Amnesty as an Impediment to Criminal Jurisdiction

Amnesty is frequently granted as part of peace negotiations to encourage warring

parties to end conflicts and transition to democracy. Countries like Argentina,
Cambodia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have
all implemented amnesty laws to facilitate political transitions. In some cases, the
United Nations has even supported such measures to restore peace, such as in
Haiti and South Africa. However, this approach raises concerns about impunity
for perpetrators of grave crimes. The core dilemma is whether prioritizing peace
through amnesty undermines long-term justice and reconciliation.

26
While amnesty laws can prevent prosecution at the national level, they often clash
with international legal obligations. Treaties such as the Geneva Conventions
(1949) and the Genocide Convention (1948) impose a duty on States to
prosecute serious international crimes, making amnesty legally questionable.
Additionally, under the Rome Statute of the ICC (1998), amnesty for crimes
against humanity, war crimes, and genocide does not exempt individuals from
international prosecution. However, the ICC’s approach remains ambiguous, with
some provisions allowing for prosecutorial discretion in cases where amnesty
serves broader justice and reconciliation goals.

Case Studies: Haiti and South Africa

• Haiti (1994): The military regime led by General Raoul Cédras agreed to
step down in exchange for amnesty and the lifting of UN economic
sanctions. The UN endorsed this agreement, prioritizing political stability
over prosecution.

• South Africa (1995): The Truth and Reconciliation Commission (TRC)

offered conditional amnesty to those who fully disclosed their apartheid-
era crimes, demonstrating a hybrid approach that combined elements of
justice with reconciliation.

Solutions To Amnesty As A Legal Impediment

o Restricting Amnesty for International Crimes

Legal frameworks should clearly prohibit amnesty for war crimes, genocide, and
crimes against humanity. This principle is reinforced by the Rome Statute, which
holds that amnesty cannot prevent prosecution at the ICC. Strengthening international
agreements would ensure uniformity in the rejection of amnesty for such crimes.
o Alternative Accountability Mechanisms
Instead of blanket amnesty, Truth and Reconciliation Commissions (TRCs) can
provide an alternative form of justice. These mechanisms, as seen in South Africa,
allow perpetrators to confess their crimes in exchange for limited amnesty while

27
 ensuring that victims receive recognition and reparations. The ICC could consider
deferring prosecution in cases where such commissions effectively establish
accountability.
o International Judicial Oversight

The UN Security Council, under Article 16 of the Rome Statute, can request the ICC
to defer investigations for peacekeeping purposes. However, this should be exercised
cautiously and in compliance with international legal obligations to prosecute grave
crimes. Judicial oversight mechanisms could be introduced to review whether amnesty
agreements genuinely serve justice and peace or merely shield perpetrators from
accountability.

B) PROHIBITION OF DOUBLE JEOPARDY

The principle of double jeopardy prevents a person from being tried or punished
twice for the same offense. This legal rule ensures fairness and protects
individuals from repeated prosecutions for the same crime. However, it can also
create a legal loophole where someone convicted or acquitted in one country may
avoid prosecution in another.

Example: If a person is acquitted of a war crime in one country, another country

may be unable to prosecute them for the same act, even if new evidence emerges.

Solution: International courts, such as the ICC, allow for exceptions to double
jeopardy in cases where the original trial was unfair, politically motivated, or
conducted to shield the accused from real accountability. In such cases,
international prosecution may still be possible. Some extradition treaties also
include provisions that allow prosecution if the original trial was incomplete or
flawed.

C) INTERNATIONAL RULES ON IMMUNITIES

28
Certain individuals, such as heads of state, diplomats, and government officials,
are granted immunity from prosecution under international law. This protection
prevents them from being arrested or tried while they are in office. However, this
can be a major obstacle in prosecuting crimes committed by high-ranking official

Example: In 2001, Belgium issued an arrest warrant for the foreign minister of
the Democratic Republic of the Congo for alleged human rights violations. The
International Court of Justice (ICJ) ruled that he had diplomatic immunity and
could not be prosecuted while in office.

Solution: While state officials enjoy immunity under normal circumstance

international law is evolving to limit immunity for serious crimes such as
genocide and crimes against humanity. The ICC and other international tribunals
do not recognize immunity for such crimes. In the case of Sudanese President
Omar al-Bashir, the ICC ruled that head-of-state immunity does not protect
individuals from prosecution for war crimes and genocide.

D) JUDICIAL COOPERATION

International crimes often involve multiple countries, making it difficult to

investigate, arrest, and prosecute offenders without cooperation between states.
Lack of extradition agreements, refusal to share evidence, and political conflicts
can hinder justice.

Example: A criminal who commits human trafficking in one country and then
flees to another may escape justice if the two countries do not have an extradition
treaty.

Solution: International cooperation is crucial to overcoming this challenge.

Agreements such as the United Nations Convention Against Transnational

29
Organized Crime encourage states to assist each other in legal matters, including
extradition, information sharing, and enforcement of judicial decisions.
Institutions like INTERPOL also help in tracking and arresting fugitives across
borders.

Conclusion

Legal impediments such as amnesty, double jeopardy, immunity, and lack of

judicial cooperation can prevent states from exercising criminal jurisdiction.
However, international law is constantly evolving to address these issues. Courts
like the ICC and international treaties play a significant role in ensuring that
serious crimes do not go unpunished, promoting justice at a global level.

30
 EXTRAAAAAAAAAAA FOR FUTUREEEE

PRINCIPLE OF CRIMINAL LIABILITY IN INTERNATIONAL CRIMINAL LAW

A) INDIVIDUAL CRIMINAL RESPONSIBILITY: HISTORICAL DEVELOPMENT

Detailed Research Ppaer

International criminal law is largely unconcerned with state responsibility,

focusing instead on the criminal responsibility of those individuals who commit
international crimes.

DEVELOPMENT OF INDIVIDUAL CRIMINAL RESPONSIBILITY

• Von Hagenbach trial

1474 precedent of Peter von Hagenbach, Governor of Breisach, in southern

Germany. In that year he was charged with ‘trampling under foot the laws of God
and man’ for acts including murder, rape, and ‘orders to his non-German
mercenaries to kill the men in the houses where they were quartered so that the
women and children would be completely at their mercy’. 4 He was tried by an
international panel of 28 judges, and after his conviction for multiple crimes,
stripped of his knighthood and executed. This singular historical example
nonetheless illustrates that an international criminal trial for atrocities was viewed
as an appropriate option well prior to the formal birth of the nation-state system
circa 1648.

The 1474 trial and execution of Peter von Hagenbach marks a pivotal moment in
the history of international law. His case represents the earliest known instance
of an international tribunal trying an individual for atrocities, laying the
foundation for modern concepts of individual criminal responsibility and
international justice.

Hagenbach, governor appointed by the Duke of Burgundy, terrorized the

population of the Duke's territories on the upper Rhine. His brutal reign, marked

31
by murder, rape, and perjury, prompted the Archduke of Austria to establish an
international tribunal composed of 28 judges from across the Holy Roman
Empire. This unprecedented court challenged the traditional notion of sovereign
immunity, asserting that even those acting under authority could be held
accountable.

Hagenbach's defense rested on the claim that he was "just following orders." He
argued that his actions, however reprehensible, were dictated by his superior, the
Duke of Burgundy. "Is it not known that soldiers owe absolute obedience to their
superiors?" he argued, a defense that would echo in later trials.

The tribunal rejected this argument, establishing the crucial principle that
individuals have a moral and legal obligation to disobey manifestly illegal orders.
This rejection of the "superior orders" defense became a cornerstone of
international criminal law, solidifying individual accountability for atrocities
regardless of rank or command.

The significance of the von Hagenbach case extends to modern international

tribunals. It served as a precedent for Nuremberg, the ICTY, the ICTR, and the
ICC. These later tribunals, while operating under more developed legal
frameworks, inherited the fundamental principle established in Hagenbach's case:
individuals are responsible for their actions, even when acting under orders.

The von Hagenbach trial represents a crucial step in the long journey towards
international justice. It challenged sovereignty and impunity, asserting individual
accountability for crimes against humanity. While legal concepts and procedures
have evolved, the core principle of individual criminal responsibility remains a
direct legacy of the von Hagenbach case, underscoring humanity's enduring
pursuit of justice and accountability.

HISTORICAL DEVELOPMENT

Early Forms of Criminal Responsibility

32
In early societies, criminal responsibility was primarily based on collective
responsibility, where entire communities or families were held liable for an
individual's actions. Justice systems initially relied on sacrificial executions,
blood feuds, and patriarchal discipline. Over time, the concept of lex talionis (law
of retaliation) emerged, as seen in Hammurabi's Code (c. 1754 BCE) and
Deuteronomic Law (7th century BCE), which introduced distinctions between
intentional and accidental offenses.

Religious and Philosophical Influence

Religious beliefs played a crucial role in shaping criminal law by transitioning

from vengeance-based justice to systems of composition and restitution. The
Roman legal tradition, particularly during the late Republic and early Empire (1st
century BCE - 2nd century CE), contributed to refining classifications of
offenses, though it did not fully establish individual criminal responsibility. The
Church's influence became significant in the medieval period, linking morality
with criminal responsibility through the concept of sin as a basis for guilt.

Medieval Period & The Church’s Role

During the medieval period, canon law deeply influenced criminal responsibility
by blending theological doctrines with legal principles. The Council of Trent
(1546-1563) played a crucial role in shaping modern notions of moral
responsibility, balancing the doctrines of Pelagianism, which emphasized free
will, and Augustinianism, which stressed original sin. Protestant reformers like
Martin Luther (1483-1546) and John Calvin (1509-1564) further contributed to
legal interpretations, though their theological perspectives continued to constrain
justice systems.

Renaissance and Enlightenment Thought

With the rise of national states and the decline of Church dominance, legal
structures became more secular. Enlightenment thinkers such as Montesquieu

33
(1689-1755), Beccaria (1738-1794), Bentham (1748-1832), and Feuerbach
(1775-1833) advocated for legal reforms that emphasized proportionality and
individual accountability. This period also saw a clearer distinction between
political and criminal responsibility, setting the foundation for modern legal
principles.

Classical International Law & State Responsibility

The development of international law further refined criminal responsibility.

Scholars such as Francisco de Vitoria (1483-1546) and Hugo Grotius (1583-
1645) introduced doctrines that emphasized the responsibility of states and rulers.
Emer de Vattel (1714-1787) reinforced the notion that sovereigns should be held
accountable for their actions. As international law evolved, the idea of absolute
sovereign immunity gave way to discussions on both state and individual
accountability.

Modern Developments in Criminal Responsibility

In contemporary international law, the focus has shifted toward individual

responsibility, particularly in cases of war crimes and crimes against humanity.
The concept of universal jurisdiction emerged, ensuring that individuals could be
held accountable for specific crimes regardless of nationality. The establishment
of international tribunals, such as the Nuremberg Trials (1945-1946) and the
International Criminal Court (ICC, established in 2002), solidified the role of
individual criminal responsibility within the framework of international law.

Conclusion

The historical development of individual criminal responsibility reflects a shift

from collective retribution to structured legal frameworks. Today, international
law emphasizes individual accountability, proportional justice, and enforcement
mechanisms that seek to uphold the principles of justice on a global scale.

34
 MODULE-5

The International Criminal Court

• Establishment of the Court

The International Criminal Court (ICC) was officially established by the Rome Statute
adopted on 17 July 1998 during a diplomatic conference in Rome, Italy. This historic treaty
laid down the foundational framework for the ICC, marking a significant milestone in
international law and justice.

The establishment of the ICC was driven by the need for a permanent institution to prosecute
individuals accused of committing the most serious crimes that concern the global community
as a whole. These crimes are genocide, crimes against humanity, war crimes, and the crime
of aggression.

Historical Context:

• The idea for such a court arose after the atrocities of World War II. Trials like the
Nuremberg Trials (for Nazi war criminals) and Tokyo Trials (for Japanese war
criminals) demonstrated the need for a permanent international mechanism to hold
individuals accountable for heinous crimes.

• Over the following decades, especially after the Rwandan Genocide (1994) and
Yugoslav Wars (1990s), the necessity of a permanent court was clear. The United
Nations had already set up ad hoc tribunals for these situations, but they were not
permanent institutions. This led to the creation of the ICC to address international
criminal accountability on a global scale.

The Rome Statute entered into force on 1 July 2002, officially creating the Court. 120
countries became the founding members, and over time, more states joined. Today, more than
120 states are States Parties to the Rome Statute.

Key Objective: The primary objective of the ICC is to end impunity for the perpetrators of
the most serious crimes and to prevent such crimes from happening again in the future.

35
• Structure and administration of the Court

The ICC is a highly structured institution, divided into four main organs, each with specific
roles and responsibilities:

1. The Presidency:

o Composition: The Presidency consists of three judges: the President and two
Vice-Presidents, who are elected by the 18 judges of the Court for a maximum
of two three-year terms.

o Role: The Presidency is responsible for overseeing the administration of the

Court, with the exception of the Office of the Prosecutor. It represents the Court
externally and manages the judicial functions. It also handles tasks such as
ensuring the enforcement of sentences and overseeing the overall functioning
of the Court.

2. The Chambers:

o The ICC has three divisions of judges to handle different stages of legal
proceedings:

▪ Pre-Trial Chambers: Handle matters before the trial begins, including

issuing warrants, summonses, and confirming charges.

▪ Trial Chambers: Oversee the actual trial proceedings, ensuring fairness

and legality, and passing judgment.

▪ Appeals Chamber: Handles appeals and reviews decisions made by the

Trial and Pre-Trial Chambers.

o The Judges are elected based on their qualifications in criminal law,

international law, and human rights. They must be impartial and have
experience relevant to the Court's work.

3. The Office of the Prosecutor (OTP):

o Independence: The OTP is an independent office of the Court, responsible for

investigating and prosecuting individuals accused of the crimes listed in the
Rome Statute.

36
 o Structure: The OTP is divided into three divisions:

▪ Investigation Division: Responsible for gathering evidence and

conducting investigations into alleged crimes.

▪ Prosecution Division: Conducts the trials, presenting evidence in the

Court.

▪ Jurisdiction, Complementarity, and Cooperation Division: Assesses

whether cases fall within the Court’s jurisdiction and works with states
to obtain cooperation.

o The Prosecutor is responsible for initiating investigations, bringing charges, and

prosecuting cases before the Court.

4. The Registry:

o Role: Provides essential administrative and operational support to the

Chambers, Office of the Prosecutor, and Defence. The Registry is tasked with
ensuring fairness, impartiality, and the smooth running of the Court’s
operations.

o Functions: Includes managing legal assistance, witness protection, logistical

support, public information, and outreach.

• Relationship with the United Nations

While the ICC is an independent institution, its relationship with the United Nations (UN)
is defined through a cooperative framework:

• UN Security Council Referrals: The UN Security Council can refer situations to the
ICC under Chapter VII of the UN Charter, especially when international peace and
security are threatened by crimes like genocide, war crimes, and crimes against
humanity.

• UN-ICC Cooperation Agreement: The ICC and the UN signed an agreement in 2004
that outlines the operational cooperation between the two bodies. This includes
logistical support, information sharing, and coordinating the prosecution of
international criminals.

37
 • The UN Security Council has the power to make referrals regardless of whether the
concerned state is a party to the Rome Statute. The ICC, however, operates
independently and is not bound by political decisions made by the UN.

• The Presidency, Chambers, Office of the Prosecutor, Assembly of State

Parties

• The Presidency is responsible for ensuring the administration of justice and overseeing
the functioning of the judicial bodies.

• The Chambers handle judicial functions such as confirming charges, conducting trials,
and handling appeals.

• The Office of the Prosecutor investigates and prosecutes individuals accused of

committing crimes under the ICC's jurisdiction.

• Assembly of States Parties: This body consists of representatives from all the
countries that have ratified the Rome Statute. It provides oversight, sets the Court’s
policies, approves the budget, and reviews the Court’s activities on an annual basis.

38
 MODULE-6

The International Criminal Court

• Jurisdiction of the Court

Jurisdiction refers to the Court’s authority to hear and decide cases. The ICC has jurisdiction
over the most serious international crimes, as defined in the Rome Statute. The Court’s
jurisdiction is temporal, territorial, and personal.

• Crimes under Jurisdiction:

o Genocide: Intentional actions to destroy, in whole or in part, a national, ethnical,

racial, or religious group. Genocide includes acts such as mass killing, causing
bodily or mental harm, and forced transfers of children.

o Crimes Against Humanity: Widespread or systematic attacks on civilians,

including murder, enslavement, torture, rape, and enforced disappearance.

o War Crimes: Serious breaches of the Geneva Conventions and violations of

laws and customs of war, which occur during both international and non-
international armed conflicts. These crimes include murder, taking hostages,
attacking civilians, using child soldiers, and committing sexual violence.

o Crime of Aggression: The use of armed force by a State against the sovereignty,
territorial integrity, or political independence of another State. The crime of
aggression was formally activated on 17 July 2018, following the amendment
to the Rome Statute.

• Temporal Jurisdiction: The ICC can only prosecute crimes that have occurred after
the Rome Statute entered into force on 1 July 2002. However, states may accept
jurisdiction retroactively for crimes committed before this date.

• Territorial Jurisdiction: The ICC has jurisdiction over crimes committed in the
territory of a State Party (a country that has ratified the Rome Statute), or by the
nationals of a State Party, even if the crimes were committed abroad.

• Personal Jurisdiction: The Court can prosecute individuals, not states or groups. The
ICC prosecutes individuals who bear the greatest responsibility for these crimes,

39
 regardless of their position, including heads of state, government officials, or military
leaders.

• Referrals: The ICC can be called to investigate a situation if:

o The UN Security Council refers a situation to the Court under Chapter VII of
the UN Charter.

o A State Party refers a case (if the alleged crimes took place in the territory of
that country or were committed by one of its nationals).

o States not parties to the Rome Statute may also voluntarily accept the
jurisdiction of the ICC in specific cases.

• Complementarity, admissibility

The principle of complementarity is one of the fundamental aspects of the ICC's

jurisdiction. It ensures that the ICC is a court of last resort, intervening only when national
courts are unable or unwilling to prosecute the perpetrators of the most serious international
crimes.

• Complementarity: This principle means that the ICC is designed to complement

national judicial systems. If a country is willing and able to investigate and prosecute a
crime, the ICC will not intervene.

o National courts retain primary responsibility for trying cases.

o If a state fails to investigate or prosecute, or if the investigation is politically

motivated to shield a person from justice, the ICC may step in.

• Admissibility: This refers to the criteria under which the ICC may accept or reject a
case:

o The ICC may only exercise its jurisdiction over a case if it is deemed admissible
according to the Rome Statute.

o Factors affecting admissibility include:

▪ Whether the case is being investigated or prosecuted by a national

system.

40
 ▪ Whether the case involves the most serious crimes of international
concern.

▪ The genuineness of the national investigation and the willingness of

national courts to prosecute.

• Investigation

Investigations are initiated by the Office of the Prosecutor (OTP), which operates
independently from the Court's judicial organs. Investigations can be initiated through:

• State Party Referrals: Any state party to the Rome Statute may refer a situation to the
ICC Prosecutor.

• Security Council Referrals: The UN Security Council can refer a situation to the ICC
under its authority, particularly when crimes threaten international peace and security.

• Prosecutor’s Own Initiative: The Prosecutor may initiate an investigation if reliable

information is received regarding alleged crimes.

• Investigation Process:

o The OTP conducts independent, impartial, and thorough investigations into

the allegations. The investigation focuses on collecting evidence from multiple
sources and is carried out with respect for the rights of suspects, victims, and
witnesses.

o Investigations can involve questioning witnesses, examining evidence,

securing documents, and conducting forensic analysis.

• Pre-Trial Chamber: After the investigation, the Prosecutor must present the evidence
to the Pre-Trial Chamber (composed of three judges). The judges decide whether there
is sufficient evidence to confirm the charges and move the case to trial.

• Pretrial, Trial

Pre-Trial:

• Confirmation of Charges: The Pre-Trial Chamber reviews the evidence presented by

the Prosecutor and determines whether the case should proceed to trial.

41
• The accused has the right to challenge the charges and evidence at this stage. The Pre-
Trial Chamber may either confirm the charges, dismiss the case, or require further
investigation.

Trial:

• If the charges are confirmed, the case proceeds to the Trial Chamber.

• The Trial Chamber is composed of three judges who conduct a fair and impartial
trial. The Prosecution presents evidence to prove the guilt of the accused beyond
reasonable doubt, and the Defence has the opportunity to present counter-evidence.

• The Trial Chamber has the responsibility of ensuring the protection of victims and
witnesses while maintaining due process for the accused.

42
 MODULE-7

The International Criminal Court

• Appeal

An appeal is a process by which parties in a case can challenge a decision made by the Trial
or Pre-Trial Chamber.

• Appeals Chamber: The Appeals Chamber is responsible for reviewing appeals against
decisions on jurisdiction, charges, and trial judgments.

• Grounds for Appeal: The Prosecution, Defence, or victims can appeal a decision on
the following grounds:

o Procedural errors: If there was an error in the legal process, such as violations
of due process or mishandling of evidence.

o Error of fact: If there is a claim that the Trial Chamber misinterpreted or

misunderstood the facts of the case.

o Error of law: If the Chamber misapplied or misinterpreted the law during the
trial or pre-trial phases.

o Disproportionality of sentence: If the imposed sentence is not proportionate

to the severity of the crime committed.

• Outcomes of Appeal:

o The Appeals Chamber can either uphold, reverse, or amend the original
decision.

o It may also order a new trial before a different Trial Chamber if the case has
significant procedural or legal flaws.

• Punishment
*D
The ICC does not impose the death penalty, as it is prohibited by the Rome Statute. The
punishments imposed by the ICC are designed to hold perpetrators accountable while
promoting justice for victims.

43
 • Imprisonment: Convicted individuals may be sentenced to imprisonment for a term
not exceeding 30 years. In cases of extreme severity, a life sentence may be imposed.

• Fines and Forfeiture: In addition to imprisonment, the Court can impose financial
penalties, including the forfeiture of property or assets derived from the crimes.

• Restitution: In some cases, the Trial Chamber may order the convicted person to make
reparations for victims, including monetary compensation or restoration of
property.

• Enforcement of punishment

The enforcement of ICC sentences is carried out by States Parties, as the ICC itself does not
have its own police force or prisons.

• Enforcement of Prison Sentences: After a conviction, the ICC will transfer the
convicted person to a State Party that has agreed to house ICC detainees. The
conditions of imprisonment must comply with international human rights standards.

o The ICC will designate the State for the enforcement of sentences based on their
willingness and capacity to uphold ICC standards for prisoner treatment.

• Reparations and Victim Compensation: In cases where the convicted person does not
have the resources to provide reparations, the Trust Fund for Victims established by
the Rome Statute may provide financial assistance to victims.

o Reparations may include monetary compensation, restitution, rehabilitation, or

symbolic measures (e.g., public apologies or memorials).

44
MODULE-8

Modes of Criminal liability

• Perpetration

Definition:
Perpetration refers to direct involvement in committing a criminal act. A perpetrator is
someone who physically carries out the crime or causes it to occur. In international criminal
law, the concept of perpetration is crucial because it sets the foundation for holding individuals
criminally liable for their actions.

Key Points:

• Actus Reus (Physical Act) and Mens Rea (Mental State) are required.

• Perpetrators are those who carry out the full act of the crime, such as pulling the
trigger, ordering an attack, or directly engaging in violent acts.

• In some cases, a perpetrator might use another person (a subordinate or agent) to carry
out the act, which still counts as direct perpetration.

Types of Perpetration:

• Direct Perpetration: The individual directly engages in the commission of the crime
(e.g., a soldier killing civilians).

• Indirect Perpetration: The individual uses another person (often someone in a

subordinate role) to commit the crime, but is still responsible for the crime.

Example in International Law:

• If a high-ranking officer orders a subordinate to carry out an execution, the officer can
be considered the perpetrator, even though they did not carry out the physical act
themselves.

45
• Co perpetration

Definition:
Co-perpetration involves two or more individuals who jointly participate in the commission of
a crime. All co-perpetrators share joint responsibility for the crime, even if one individual did
not personally perform every element of the crime.

Key Points:

• Joint Intent: Co-perpetrators must share the intent to commit the crime. This means
they collaborate and act with a common criminal purpose.

• Equal Liability: All co-perpetrators are equally responsible, even if they played
different roles in the commission of the crime.

• Division of Roles: Co-perpetrators might divide tasks (e.g., one person provides the
weapon, while the other carries out the attack), but the common goal is the commission
of the criminal act.

Example in International Law:

• In cases of genocide or crimes against humanity, individuals acting in a joint criminal

enterprise (JCE) can be held equally responsible for acts committed by others in
furtherance of the enterprise.

• Joint Criminal Enterprise

Definition:
Joint Criminal Enterprise (JCE) is a doctrine that allows individuals to be held criminally liable
for crimes they did not directly commit but were part of a joint effort. This principle applies
when individuals work together to commit a crime, and any crime that results from their shared
plan or actions makes each individual responsible for the full scope of the crime.

Key Points:

• Type of JCE: There are generally three types of JCE:

1. Basic JCE: All participants have a shared intent, and they commit the crime
together.

46
 2. Extended JCE: The group commits the intended crime, but further crimes
(such as murder) are committed by one or more participants, which are
foreseeable under the enterprise.

3. Co-perpetration under JCE: Individuals in a joint enterprise act together with

the common purpose of committing crimes, such as mass killings in a war or
genocide.

• Individual Liability: Even if an individual did not directly commit all elements of the
crime, they can still be held responsible for crimes that were foreseeable and part of
the shared plan.

Example in International Law:

• In cases like the Bosnian War Crimes trials, individuals involved in joint military
operations, who participated in a criminal enterprise like the targeting of civilians, can
be held responsible for all crimes committed within the scope of the conspiracy.

Cases

➢ Hadamar Trial: During World War II, the Nazi regime carried out mass executions in
concentration camps. The perpetrators were held responsible not only for individual
acts of killing but also for being part of a larger criminal enterprise designed to
exterminate certain populations.
➢ Alfons Klein: A case related to the direct involvement of high-ranking officials in
organizing the genocide, demonstrating co-perpetration in a national crime.
➢ R v. Powell: This case established that co-perpetrators could be equally liable for
criminal acts, even if one person did not physically carry out the crime.
➢ Essen Lynching Case: A case involving a group of individuals who were jointly
responsible for executing a civilian, illustrating the principle of co-perpetration.
➢ Martie: Examined the idea of intent and joint criminal responsibility in the commission
of mass murder in a war context.
➢ Lubanga Pre-Trial: Related to the use of child soldiers, demonstrating indirect
perpetration through ordering others to commit crimes.
➢ Gacumbitsi Case: Focused on joint enterprise where individuals conspired to carry out
genocidal acts, showing the JCE doctrine in action.

47
➢ Lukic and Lukic: A case showing command responsibility and co-perpetration for war
crimes.
➢ Katanga and Chui: Examined command responsibility and co-perpetration in the
context of war crimes in the Democratic Republic of Congo.

48
 MODULE-9

Modes of Criminal liability

• Aiding and abetting

Definition:
Aiding and abetting involve assisting or encouraging someone else to commit a crime. Unlike
perpetration, aiding and abetting does not require directly committing the crime but rather
contributing in some way to the crime’s commission.

Key Points:

• Aider: One who provides support to the principal perpetrator (e.g., supplying tools,
money, or information).

• Abettor: One who encourages or instigates the crime, even if they are not present at
the crime scene.

• Legal Responsibility: Those who aid or abet a crime are equally liable as the
perpetrator, as long as their contribution was essential for the crime.

Example in International Law:

• Individuals who assist in genocide, such as those who provide weapons or funds, can
be held responsible as aiding and abetting.

• Ordering

Definition:
Ordering refers to directing someone else to commit a crime. This mode of liability is
particularly relevant for commanders or those in authority who give orders that lead to crimes,
even if they don’t personally carry out the act.

Key Points:

• Command Responsibility: Those in a position of authority, such as military or political

leaders, who order subordinates to commit crimes are criminally liable.

• Accountability: An individual who orders a subordinate to commit an act can be held

criminally responsible, even if the order was not executed personally.

49
Example in International Law:

• Genocide and war crimes often involve commanders who order their troops to carry
out attacks on civilians or prisoners, making the commanders liable for the atrocities.

• Instigating

Definition:
Instigating involves urging, prompting, or inciting another person to commit a crime. Unlike
ordering, instigating does not require direct influence or command but focuses on the individual
who encourages the crime.

Key Points:

• Instigation: An individual may not physically carry out the crime but can be held liable
for provoking or instigating the crime.

• Mental State: The instigator must intentionally encourage the crime to be held liable.

Example in International Law:

• Incitement to genocide, such as speeches or actions urging violence against a

particular group, can lead to liability for instigating genocide.

• Inchoate Crimes

Definition:
Inchoate crimes refer to crimes that are started but not completed. They include attempts,
conspiracy, and solicitation. These crimes may be punished even if the intended criminal act
is not fully realized.

Key Points:

• Attempt: If someone attempts to commit a crime but does not complete it, they can still
be prosecuted.

• Conspiracy: When two or more people plan to commit a crime, even if they don’t
follow through, they can be prosecuted for conspiring.

• Solicitation: The act of urging or requesting someone to commit a crime can lead to
liability, even if the crime is not carried out.

50
Example in International Law:

• In cases like terrorism or conspiracy to commit war crimes, even if the crime does
not come to fruition, the accused may still face serious criminal charges.

Cases

➢ Furundzija Case: The case established principles of aiding and abetting in war
crimes. The defendant was held responsible for facilitating and aiding in the torture of
prisoners.
➢ Dutch Case of van Anraat: Involved aiding and abetting in war crimes by providing
chemicals used for chemical warfare.
➢ Mpambara Case: Addressed instigation and aiding in genocidal acts.
➢ The Synagogue Case: Discussed ordering and instigating in the context of mass
violence.
➢ Pig-cart Parade Case: Focused on instigation and how individuals can be held liable
for encouraging illegal acts.

51
 MODULE-10

Exclusion of Criminal liability

Exclusion of criminal liability refers to certain legal defenses or justifications that may
prevent an individual from being held criminally responsible for their actions. These
defenses do not deny the criminal act, but they argue that the act was either justified under
certain circumstances or that the person was incapacitated due to a specific condition or
situation.

These defenses are divided into two categories:

1. Justifications

2. Excuses

Additionally, the defense of superior orders is considered a separate but related issue.

• Justifications

A justification defense argues that an act, even though it meets the legal definition of a crime,
is legally permissible under certain circumstances. In other words, the act is seen as necessary
or rightful in specific situations, even if it violates the law.

Key Types of Justifications:

1. Self-Defense (or Defense of Others):

o Definition: Self-defense is a legal justification for using force to protect oneself

from imminent harm or attack. This defense also applies to the protection of
others (e.g., defending a family member or bystander).

o Requirements: The following conditions must typically be met for self-

defense:

▪ Imminent threat: The threat must be immediate and present, not

speculative or future.

▪ Proportionality: The response must be proportionate to the threat.

Deadly force is only justifiable if the threat of harm is severe or life-
threatening.

52
 ▪ Reasonable belief: The defendant must reasonably believe that they are
in danger.

o Example in International Law: If a soldier in a conflict zone is attacked by an

enemy combatant, they may be justified in using force to defend themselves.

2. State of Necessity:

• Definition: This defense is used when a person commits a crime to avoid a greater harm
or evil. It asserts that the crime was necessary to prevent a more significant harm, and
thus, the criminal act is excused.

• Example: A person may steal food in a situation of dire starvation to preserve their life.

• Limitations: The harm avoided must be greater than the harm caused by committing
the crime.

3. Duress:

• Definition: Duress refers to situations where an individual commits a crime under the
threat of imminent death or serious harm. The person is coerced into committing the
crime due to the force or threats of another individual.
hathwal
i
• Requirements: For duress to be a valid defense:

o Imminence: The threat must be immediate and unavoidable.

o Proportionality: The crime committed must be proportional to the harm

threatened.

• Example: A person who is coerced into helping someone escape capture at gunpoint
may be able to use the duress defense if they genuinely feared for their life.

4. Consent:

• Definition: In some cases, a defendant may claim that the victim consented to the act,
making it legally permissible. This defense is often applicable in sports or medical
procedures where harm is inherently involved and consent is given beforehand.

• Example: In a combat situation, soldiers may legally engage in certain actions (such
as using force) if they have the consent of their superior officers or because the opposing
party is an armed combatant in a war.

53
• Excuses

An excuse defense acknowledges that the defendant committed the crime, but argues that they
should not be held criminally responsible due to their mental state or circumstances that
impeded their ability to act in accordance with the law. These defenses often focus on
involuntary actions or the mental state of the defendant.

Key Types of Excuses:

1. Insanity (Mental Incapacity):

o Definition: If an individual is unable to understand the nature of their actions

due to a severe mental disorder, they may be excused from criminal liability.
This defense is based on the insanity or mental illness of the accused.

o Legal Test: The M'Naghten Rule and the Durham Rule are commonly used
tests to determine insanity. The M'Naghten Rule focuses on whether the accused
knew the nature of the act or could distinguish right from wrong at the time of
committing the crime.

o Example: A person who, due to a severe mental disorder, commits a violent act
but does not understand the nature or wrongfulness of the act may be found not
guilty by reason of insanity.

2. Intoxication:

o Voluntary Intoxication: This defense is limited and typically does not

completely excuse criminal responsibility. However, if a person commits a
crime under voluntary intoxication, it might negate the mens rea (mental state)
required for certain crimes.

o Involuntary Intoxication: If a person is unknowingly drugged or poisoned and

commits a crime as a result, they may be excused based on their lack of control
over their actions.

o Example: A person who unknowingly consumes a drug and commits a crime

while under its effects may use involuntary intoxication as a defense.

3. Mistake of Fact:

54
 o Definition: This defense is based on the argument that the defendant committed
the crime due to a misunderstanding or mistake about a fact that negates the
criminal intent.

o Example: A person who unknowingly takes someone else’s bag, believing it to

be their own, may argue that they did not have the criminal intent (mens rea) to
steal.

4. Minority (Age):

o Definition: Minors (those below a certain age threshold, often 18) may be
excused from criminal liability, as they may lack the full capacity to understand
the consequences of their actions.

o Example: A 15-year-old who commits a crime may be treated differently from

an adult in terms of liability and punishment, depending on the laws of the
jurisdiction.

• Superior Orders

The defense of superior orders refers to individuals who claim they were simply following
orders given by a superior officer, thus seeking to avoid criminal liability. This defense is
typically seen in military or other hierarchical organizations, particularly in the context of war
crimes.

Key Points on Superior Orders:

1. Nuremberg Trials and Precedents:

o The Nuremberg Trials (post-WWII trials of Nazi war criminals) established

that the defense of "just following orders" is not valid when the orders are
manifestly unlawful. This principle applies to war crimes and crimes against
humanity.

o Principle: Individuals are not absolved of responsibility simply because they

acted on the orders of a superior. If the orders involve the commission of
atrocities, they are considered illegal, and the person carrying them out is still
liable.

2. Limitations:

55
 o The defense is only valid if the orders were not manifestly illegal and were
considered reasonable. For example, if a soldier is ordered to commit an
unlawful act (such as genocide), they cannot claim they were following orders
if the act is obviously criminal.

o Even under military law, commanders can be held criminally responsible for
their subordinates' actions, especially if they fail to prevent or punish illegal
acts.

3. International Court Cases:

o The International Criminal Court (ICC) has consistently rejected the defense
of superior orders in cases of war crimes and genocide. For instance, the case
of Furundžija (ICTY) showed that individuals who were complicit in crimes
under superior orders are still criminally liable.

Cases

1. Kordić and Čerkez Case

Court : International Criminal Tribunal for the former Yugoslavia (ICTY)

Charges War crimes, crimes against humanity

Year: 2001 (Initial trial), 2004 (Appeal)

Summary:
Dario Kordić, a political leader, and Mario Čerkez, a military commander, were involved in
war crimes during the Bosnian War. They were charged with war crimes and crimes against
humanity related to the 1993 Ahmići massacre, where 116 Bosnian Muslim civilians were
killed. Kordić was convicted of war crimes and sentenced to 25 years in prison, later reduced
to 10 years on appeal. Čerkez was acquitted of some charges but found guilty on others,
receiving a 7-year sentence.

The case highlighted command responsibility, and the court emphasized that individuals at
the highest levels of authority, even if not directly involved in killings, can still be held
accountable.

56
2. Popović Case

Court: ICTY
Charges: Genocide, war crimes, crimes against humanity
Year: 2007 (Initial trial), 2010 (Appeal)

Summary:
This case focused on Vidoje Popović, a high-ranking officer in the Bosnian Serb Army. He
was involved in the Srebrenica massacre in 1995, where around 8,000 Bosnian Muslims
were executed. Popović was convicted of genocide and sentenced to life imprisonment by the
ICTY. The case reaffirmed the legal standard for genocide, and Popović's conviction was
upheld on appeal.

3. Erdemović Case

Court: ICTY
Charges: War crimes, crimes against humanity
Year: 1996 (Initial trial), 1997 (Appeal)

Summary:
Dario Erdemović was a Bosnian Croat soldier who participated in the Srebrenica massacre
but was among the lower-ranking soldiers who carried out the killings. He was convicted of
war crimes and sentenced to 5 years in prison, which was later extended to 10 years.
Erdemović's case became significant in legal discussions around superior orders and
individual responsibility, showing that individuals can be held accountable even for atrocities
committed under duress.

4. Llandovery Castle Case

Court: Military Tribunal

Charges: War crimes
Year: 1917 (Trial)

Summary:
The Llandovery Castle was a hospital ship sunk by a German submarine in World War I. It
was clearly marked as a hospital vessel under the Geneva Conventions, which should have

57
protected it from attack. The case involved the German Navy officers who ordered the attack.
The tribunal held them responsible for war crimes for violating international laws of war.
This case is a significant early example of holding military commanders accountable for
attacks on protected civilian targets during conflict.

5. Wintgen Case

Court: German Military Tribunal

Charges: War crimes
Year: 1949 (Trial)

Summary:
In this post-WWII case, Wintgen, a German officer, was charged with war crimes for
participating in mass executions of civilians during the German occupation of France. The
tribunal convicted him for executing civilians, which violated the Geneva Conventions
regarding the treatment of non-combatants during wartime. Wintgen was sentenced to death.

This case was important for reinforcing the responsibility of military officers for unlawful
actions taken under their command, even if the orders were not formally documented.

6. Schwarz Case

Court: German Military Tribunal

Charges: War crimes
Year: 1949 (Trial)

Summary:
Schwarz was a German officer found guilty of war crimes for ordering the execution of
prisoners of war and civilians in occupied territories. This case exemplified war crimes
relating to the treatment of POWs and non-combatants during wartime. Schwarz was
sentenced to death for his role in organizing the unlawful killings.

7. Stenger and Crusius Case

58
Court: German Military Tribunal
Charges: War crimes
Year: 1947-48 (Trial)

Summary:
Stenger and Crusius were German officers involved in the execution of prisoners of war
during World War II. The tribunal convicted them for their role in the mass execution of
civilians and POWs, violating the Geneva Conventions. They were sentenced to death for
their actions, which underscored the importance of individual accountability for wartime
atrocities.

8. Gerbsch Case

Court: Military Tribunal

Charges: War crimes
Year: 1948 (Trial)

Summary:
The Gerbsch case dealt with a German officer who was responsible for executing civilians
during the Nazi occupation of France. He was held accountable for the violation of
international law during wartime, specifically the prohibition on killing non-combatants.
Gerbsch was convicted of war crimes and sentenced to death.

9. Prosecutor v. Dominic Ongwen

Court: International Criminal Court (ICC)

Charges: War crimes, crimes against humanity
Year: 2021 (Trial)

Summary:
Dominic Ongwen, a former commander in the Lord's Resistance Army (LRA), was charged
with war crimes and crimes against humanity for his role in the abduction of children,
sexual enslavement, and murder. Ongwen’s case is notable for his dual role as both victim
and perpetrator. He was abducted by the LRA at a young age and forced to become a soldier,
but later became a commander who committed atrocities.

59
 • In 2021, he was convicted of 61 counts of war crimes and crimes against humanity,
including rape, sexual slavery, and forced labor. He was sentenced to 25 years in
prison.

The Ongwen case raises important issues regarding forced participation in crimes and the
balance between personal responsibility and the impact of coercion during conflict.

60
MODULE-11

International Crimes I: Genocide

• Definition

1. Definition of Genocide

Genocide is defined under Article II of the Convention on the Prevention and Punishment
of the Crime of Genocide (1948). It refers to acts committed with the specific intent to
destroy, in whole or in part, a national, ethnical, racial, or religious group. Genocide is one
of the most serious international crimes due to its devastating impact on entire communities.

• Key Elements:

o Intent: The act must be committed with the specific intent (dolus specialis) to
destroy a group. This distinguishes genocide from other types of mass violence.

o Targeted Groups: The crime targets national, ethnical, racial, or religious

groups. Other factors, such as political or economic status, are not considered
under the definition of genocide.

o Acts: These include killings, causing serious harm, and imposing conditions
intended to destroy the group physically or culturally.

2. The 1948 Convention on Genocide

• Purpose: The 1948 Genocide Convention was adopted by the UN General Assembly
in response to the horrors of World War II and the Holocaust. It codified genocide as
a punishable crime under international law.

• Key Provisions:

o Article II: Defines genocide, including acts like killing, causing serious bodily
or mental harm, inflicting conditions for destruction, and preventing births.

o Obligations for States: States parties to the convention are required to prevent
and punish genocide. This includes legislative action to ensure national courts
can prosecute genocide, and obligations to cooperate in the extradition of
suspected perpetrators.

61
3. The Specific Intent (Dolus Specialis) Required for Genocide

The crime of genocide is distinguished by its specific intent (dolus specialis). The perpetrator
must have the intent to destroy the group as such, either in whole or in part. This intent goes
beyond general criminal intent; it requires a specific goal of group destruction.

• Key Points:

o Partial Destruction: Genocide does not require the destruction of an entire

group, but merely a substantial portion of it.

o Causation of Harm: The harmful acts must be committed with the aim to
annihilate the group through killing, mental harm, or other destructive
measures.

o The intent to destroy must be proven through actions, but the court can also rely
on circumstantial evidence (e.g., speeches, plans, and directives).

4. Acts Constituting Genocide

The following acts are classified as genocide under Article II of the Genocide Convention:

• Killing members of the group: Physical killing or murder of members of the targeted
group.

• Causing serious bodily or mental harm: This can include torture, sexual violence,
mutilation, and acts intended to cause severe psychological trauma to the victims.

• Inflicting living conditions meant to destroy the group: For example, forced
starvation, deportations, or denial of access to medical care.

• Preventing births within the group: Acts like forced sterilizations or other measures
intended to prevent the group from reproducing.

• Forcibly transferring children: This refers to the abduction and relocation of children
from one group to another to eradicate the group’s cultural, social, and ethnic continuity.

62
5. Incitement to Commit Genocide

Incitement refers to urging, encouraging, or instigating others to commit genocide, even if the
crime has not yet occurred. Article III of the Genocide Convention criminalizes direct and
public incitement to commit genocide.

• Key Points:

o Incitement can occur through speech, propaganda, or media, aiming to incite

hatred and violence.

o The Akayesu case (ICTR) was the first international case where incitement
was prosecuted under the definition of genocide. The case highlighted the role
of hate speech in fueling genocidal violence.

Key Cases:

• Akayesu case (ICTR-96-4-T): This was a landmark case as it was the first trial to
convict someone of incitement to commit genocide, establishing the principle that
hate speech can be a precursor to genocide.

• Krstic case (ICTY-98-33-T): The court ruled that Srebrenica massacre was a case of
genocide and incitement to genocide was proven.

• Jelisic case (ICTY-95-10-T): Known as "Serb Adolf," Jelisic was convicted for his role
in inciting genocide and participating in the execution of civilians.

Cases

1. Akayesu Case (ICTR-96-4-T)

Tribunal: International Criminal Tribunal for Rwanda (ICTR)
Judgment Date: 2 September 1998
Key Contributions:
• First-ever conviction for genocide by an international tribunal.
• Also the first case where rape and sexual violence were recognized as acts of
genocide and crimes against humanity.

63
Facts:
Jean-Paul Akayesu was the mayor of Taba commune during the 1994 Rwandan genocide.
He oversaw and facilitated mass killings, rape, and torture of Tutsi civilians.
Legal Findings:
• The court held that rape and sexual violence constituted acts of genocide when
committed with the intent to destroy the Tutsi group.
• Established that genocidal intent can be inferred from the pattern of conduct.
• Affirmed the responsibility of political leaders in inciting and failing to prevent
atrocities.

2. Rutaganda Case (ICTR-96-3)

Tribunal: ICTR
Judgment Date: 6 December 1999
Key Contributions:
• Convicted for genocide and crimes against humanity, focusing on incitement and
participation in massacres.
Facts:
Georges Rutaganda was a businessman and vice-president of the Interahamwe militia. He
supplied weapons and encouraged attacks against Tutsis.
Legal Findings:
• Confirmed that distribution of weapons and incitement to violence constituted
participation in genocide.
• Held that the existence of a genocidal plan is not required, but that the individual
must have the intent to destroy the group.
• Important for defining aiding and abetting in the context of international crimes.

3. Krstić Case (IT-98-33-T)

Tribunal: ICTY
Judgment Date: 2 August 2001
Key Contributions:
• First conviction for genocide by the ICTY.
• Related to the Srebrenica massacre (July 1995), where over 8,000 Bosniak men and
boys were killed.

64
Facts:
Radislav Krstić was a commander of the Drina Corps of the Bosnian Serb Army.
Legal Findings:
• The court found that the mass killing aimed to eliminate the Bosniak population of
Srebrenica and amounted to genocide.
• The decision expanded the interpretation of "genocidal intent" by linking the
destruction of a part of a group to the intent to destroy the whole.
• Affirmed the doctrine of command responsibility and joint criminal enterprise.

4. Bosnia and Herzegovina v. Serbia and Montenegro (ICJ 2007)

Tribunal: International Court of Justice (ICJ)
Judgment Date: 26 February 2007
Key Contributions:
• Landmark case on state responsibility for genocide under the Genocide Convention.
Facts:
Bosnia accused Serbia of committing genocide during the 1992–1995 Bosnian War,
particularly in relation to the Srebrenica massacre.
Legal Findings:
• The ICJ held that genocide occurred at Srebrenica but that Serbia was not directly
responsible.
• However, Serbia was found to have failed to prevent genocide and failed to punish
perpetrators (like Ratko Mladić).
• Clarified the standard of "effective control" over militias for state responsibility.
• Set important jurisprudence on the obligations under the Genocide Convention,
including prevention and punishment.

5. Jelisic Case (ICTY-95-10)

Tribunal: ICTY
Judgment Date: 14 December 1999
Key Contributions:
• Addressed the difficulty in proving genocidal intent.
• Convicted for crimes against humanity and war crimes, but acquitted of genocide.

65
Facts:
Goran Jelisic, a Bosnian Serb, referred to himself as the "Serb Adolf" and killed numerous
detainees in Brcko.
Legal Findings:
• The court accepted that he committed acts constituting genocide but acquitted him on
that charge because specific intent to destroy a group was not proven beyond a
reasonable doubt.
• Highlights the high threshold of proof required for genocidal intent under
international law.

6. Kayishema and Ruzindana Case (ICTR-95-1)

Tribunal: ICTR
Judgment Date: 21 May 1999
Key Contributions:
• Among the earliest cases to define and apply the elements of genocide and complicity
in genocide.
Facts:
Clement Kayishema (prefect) and Obed Ruzindana (businessman) orchestrated and directly
participated in massacres of Tutsis in Kibuye province.
Legal Findings:
• Both were found guilty of genocide and crimes against humanity.
• The court emphasized that massacres in churches and hospitals could constitute
genocide when directed at a targeted group.
• Established that both political and civilian actors could be held criminally liable.

- -

- -

-
- -

-
- -
-
-

-
-

-
66 -
 MODULE-12

International Crimes II: Crimes against Humanity

Initial Conceptualization in the Nuremberg Tribunal Charter

Crimes against humanity were formally introduced in international criminal law through
Article 6(c) of the Nuremberg Charter in 1945. This provision described such crimes as
including -
murder, extermination, enslavement, deportation, and other inhumane acts
committed against civilian populations, before or during war. A key legal development at
-

Nuremberg was the rejection of state immunity and the emphasis on individual criminal

-
responsibility, establishing that individuals—including heads of state—could be held
accountable under international law.
-
ICTY and ICTR Statutes

The statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) significantly expanded the jurisprudence
on crimes against humanity. The ICTY Statute, established in 1993, defined crimes against
humanity to include acts such as persecution, extermination, rape, torture, and deportation
when committed in an armed conflict, whether international or non-international, and directed
against civilians. The ICTR Statute, established in 1994, similarly defined crimes against
humanity with emphasis on acts committed during the Rwandan genocide. It clarified that such
crimes need not be committed during armed conflict, marking a shift in understanding.
Landmark cases such as Prosecutor v. Akayesu highlighted the legal recognition of sexual
violence, including rape, as a crime against humanity.

Crimes Against Humanity in the ICC Statute

Article 7 of the Rome Statute of the International Criminal Court provides a comprehensive
codification of crimes against humanity. It enumerates eleven specific acts—including murder,
extermination, enslavement, deportation, imprisonment, torture, sexual violence, enforced
disappearance, apartheid, and persecution—which must be committed as part of a widespread
or systematic attack directed against any civilian population, pursuant to a state or
organizational policy. This contextual element distinguishes crimes against humanity from
ordinary crimes and reflects the seriousness with which international law treats such offenses.

Elements of Crimes Against Humanity

67
The “Elements of Crimes” document supplements the Rome Statute by setting out the specific
legal elements that must be proven for each crime against humanity. These include the conduct
(such as killing or rape), the contextual requirement (part of a widespread or systematic attack
against civilians), and the mental element (knowledge of the attack and the perpetrator's intent
to contribute to it). This structured approach aids in consistent judicial interpretation across
ICC cases and aligns closely with precedents established by the ICTY and ICTR.

68
 MODULE-13

International Crimes III: War Crimes

The Nexus Between War Crimes and Armed Conflict

A foundational requirement in classifying an act as a war crime is the necessity to demonstrate

a clear link between the offence and the existence of an armed conflict. This requirement is
rooted in the principle that such acts would not amount to war crimes unless committed in the
context of, and associated with, armed hostilities. The legal framework makes a distinction
between international and non-international armed conflicts, a categorization that significantly
influences the applicable law and judicial interpretation.

Classification of Armed Conflict

International armed conflicts (IACs) occur between two or more states, and include situations
of military occupation. Non-international armed conflicts (NIACs), by contrast, take place
within a single state and involve protracted violence between governmental forces and
organized armed groups or between such groups themselves. The distinction is critical, as the
range and scope of war crimes differ based on the nature of the conflict. For example, the
Geneva Conventions and their Additional Protocols apply more comprehensively to IACs,
while Common Article 3 and Additional Protocol II govern NIACs.

War Crimes in Non-International Armed Conflicts

The Rome Statute under Article 8(2)(c) and 8(2)(e) addresses war crimes committed in NIACs.
These include murder, mutilation, torture, cruel treatment, outrages upon personal dignity,
taking of hostages, and directing attacks against civilians. The statute provides a legal basis to
prosecute crimes in situations where previously international law offered limited redress,
especially when states invoked sovereignty to resist external scrutiny.

Case Law: Key Jurisprudence

The Hostages Case (List et al.) emphasized that the taking of hostages and reprisals against
civilians violated the laws and customs of war. The Tadić Case, a landmark decision of the
ICTY, expanded the reach of international criminal law to non-international conflicts, asserting
that grave breaches of customary international law applied irrespective of the type of conflict.

69
In the Blaškić Case, the ICTY reinforced the doctrine of command responsibility, holding
senior officers accountable for failing to prevent or punish war crimes committed by their
subordinates.

War Crimes under the ICC Statute

Article 8 of the Rome Statute enumerates a wide array of acts categorized as war crimes. These
include willful killing, torture, extensive destruction of property, unlawful deportation,
intentional attacks against civilians or humanitarian personnel, use of prohibited weapons, and
recruitment of child soldiers. The Elements of Crimes document provides detailed actus reus
and mens rea requirements for each crime, ensuring precise legal application in prosecutions.

Cases:

1. United States v. Wilhelm List and Others (The Hostages Case)

Tribunal: U.S. Military Tribunal, Nuremberg (part of the Subsequent Nuremberg Proceedings)
Judgment Date: 19 February 1948

Background and Facts

This case involved German military officers, including Wilhelm List, who served in occupied
Yugoslavia and Greece during World War II. The accused were charged with crimes against
humanity and war crimes, particularly for taking and executing hostages and conducting
reprisals against civilians in retaliation for partisan attacks.

Legal Significance

• The tribunal held that reprisals against civilians and hostages are limited under
international law, even in wartime.

• The doctrine of command responsibility was emphasized: commanders can be held

liable for crimes committed by subordinates if they knew or should have known and
failed to act.

• Importantly, the tribunal acknowledged that not all reprisals are illegal, but they must
be proportionate and directed at lawful targets — civilians are protected under the
laws of war.

Key Legal Principles

70
 • Criminal responsibility of military leaders for failing to prevent or punish war
crimes.

• Illegal reprisals and hostage-taking violate customary international humanitarian law.

• Introduced early elements of what later became formalized in Article 8 of the Rome
Statute (war crimes).

2. Prosecutor v. Duško Tadić (ICTY-94-1)

Tribunal: International Criminal Tribunal for the former Yugoslavia (ICTY)

Judgment Date: Trial Chamber (1997), Appeals Judgment (1999)

Background and Facts

Duško Tadić, a Bosnian Serb, was charged with crimes committed in the Prijedor region of
Bosnia and Herzegovina during the early 1990s. He was accused of crimes against humanity,
violations of the laws or customs of war, and grave breaches of the Geneva Conventions.

Legal Significance

• This was the first case decided by the ICTY, setting numerous precedents.

• The Appeals Chamber ruled that serious violations of international humanitarian

law can occur in both international and non-international armed conflicts,
rejecting the traditional state-centric focus.

• Defined and applied the concept of individual criminal responsibility under

international law.

• The tribunal held that internal armed conflicts are not exempt from war crimes
prosecution, applying customary international law norms across conflict types.

Key Legal Principles

• Established individual accountability in non-international armed conflicts.

• Articulated the “overall control test” to determine whether an armed group can be
considered under the control of a state for the purpose of classifying a conflict.

71
 • Helped shape the legal framework of NIAC war crimes under Article 8(2)(c) and (e)
of the Rome Statute.

3. Prosecutor v. Tihomir Blaškić (ICTY-95-14)

Tribunal: ICTY
Judgment Date: 3 March 2000 (Trial Chamber), Appeal in 2004

Background and Facts

Tihomir Blaškić was a general in the Croatian Defence Council (HVO), the official military
force of the Croatian Republic of Herzeg-Bosnia. He was charged with war crimes and crimes
against humanity in central Bosnia, especially in the Lašva Valley, including the Ahmići
massacre where over 100 Bosnian Muslim civilians were killed.

Legal Significance

• One of the earliest ICTY judgments dealing extensively with command responsibility.

• The Trial Chamber convicted Blaškić, finding that he failed to prevent or punish
crimes committed by his subordinates.

• On appeal, many convictions were reversed due to insufficient evidence of effective

control, but the case remains a landmark in the articulation of command
responsibility.

Key Legal Principles

• Defined the threshold for command responsibility under international criminal law.

• Emphasized that superiors must exercise effective control over perpetrators to be held
-
liable.

• Also considered joint criminal enterprise (JCE) as a mode of liability, but the appeal
court applied a narrower interpretation.

72
 MODULE-14

International Crimes IV: The Crime of Aggression and other crimes

The Crime of Aggression in the Nuremberg Charter

The Nuremberg Tribunal introduced the concept of "crimes against peace," which later evolved
into the modern understanding of aggression. It was defined as the planning, initiation, or
execution of a war of aggression in violation of international treaties or assurances. This
constituted a shift from state-centric accountability to individual criminal liability for unlawful
uses of force.

Aggression under the Rome Statute

The definition of aggression was formalized in Article 8 bis of the Rome Statute following the
Kampala Amendments in 2010. It defines aggression as the use of armed force by a state against
the sovereignty, territorial integrity, or political independence of another state in violation of
the UN Charter. The crime applies only to individuals in leadership positions, i.e., those with
the capacity to control or direct the political or military action of a state. A key requirement is
that the act must constitute a manifest violation of the UN Charter, thereby setting a high
threshold for prosecution.

Jurisdictional Challenges and Enforcement

* Di D
The exercise of jurisdiction over aggression is subject to additional conditions, such as a
Security Council referral or Pre-Trial Chamber determination, making enforcement
particularly complex. Despite its inclusion, the crime remains underutilized due to political
sensitivities and jurisdictional limitations.

Torture as an International Crime

Torture is both a war crime and a crime against humanity under the ICC framework. It is also
criminalized under the 1984 Convention Against Torture. It refers to the intentional infliction
of severe pain or suffering, for purposes such as punishment, coercion, or discrimination.
Torture is recognized as a jus cogens norm, meaning it is universally prohibited and cannot be
derogated under any circumstances. As such, states may exercise universal jurisdiction to
prosecute acts of torture committed anywhere in the world.

73
 MODULE-15

International Crimes

Terrorism: Legal Challenges and International Definitions

Terrorism, despite its prominence in international legal and political discourse, lacks a
universally agreed-upon legal definition under international law. This definitional challenge
stems from political disputes, particularly concerning national liberation movements and state
vs. non-state violence. Nevertheless, multiple UN General Assembly and Security Council
resolutions, as well as sectoral conventions, attempt to outline its legal contours.

The 1994 UN General Assembly Declaration on Measures to Eliminate International

Terrorism defines terrorism as criminal acts intended to provoke a state of terror in the public
or coerce a government for political purposes, declaring such acts unjustifiable under any
circumstances. Similarly, UNSC Resolution 1566 (2004) describes terrorism as criminal acts
committed with intent to cause death or serious injury to civilians or compel governments
through fear.

UNODC’s educational materials recognize this definitional uncertainty and explain that,
although there is no comprehensive treaty, there is broad consensus on a customary core:
(1) criminal acts (e.g., murder, kidnapping), (2) with intent to intimidate or coerce, (3)
involving a transnational element.

Despite the definitional gaps, over 19 universal treaties address specific terrorist acts (e.g.,
hijacking, hostage-taking, bombings, financing of terrorism), forming the backbone of
international counter-terrorism law. These instruments often employ the principle of aut
dedere aut judicare (extradite or prosecute) and impose obligations such as criminalization,
prosecution, and cooperation.

Terrorism and Human Rights

The OHCHR Fact Sheet emphasizes that terrorism poses a direct threat to core human rights,
especially the rights to life, liberty, and security. Terrorist acts are recognized as threats to
peace, rule of law, and democratic societies. At the same time, counter-terrorism measures
themselves can infringe upon human rights — for example, through arbitrary detention, torture,
or suppression of free speech.

74
The United Nations Global Counter-Terrorism Strategy and human rights bodies urge that
counter-terrorism must always comply with international human rights law, refugee law,
and international humanitarian law. Key human rights affected by counter-terrorism
measures include:

• Right to life and protection from torture

• Due process and fair trial guarantees

• Privacy, freedom of expression, and non-discrimination

• Protection of victims and prevention of collective punishment

Thus, while states have a duty to protect against terrorism, they must also uphold the principle
of legality, necessity, and proportionality in their responses.

Terrorism under International Criminal Law

Terrorism is not explicitly included as a separate crime in the Rome Statute of the
International Criminal Court (ICC). However, certain terrorist acts — such as deliberate
attacks on civilians, hostage-taking, or systematic violence — may qualify as war crimes
(Article 8) or crimes against humanity (Article 7), if committed as part of a widespread or
systematic attack on civilians.

Some ad hoc tribunals (e.g., ICTY in the Galić case) have convicted individuals for terrorizing
civilian populations under war crimes provisions. The Special Tribunal for Lebanon
controversially suggested that a customary international crime of terrorism may exist, but this
view is not universally accepted.

Terrorism and Refugee Law

International refugee law prohibits granting protection to individuals who have committed acts
of terrorism. Under Article 1F of the 1951 Refugee Convention, persons suspected of war
crimes, crimes against humanity, or serious non-political crimes (such as terrorism) can be
excluded from refugee status. States must also uphold the principle of non-refoulement,
ensuring that suspects are not returned to countries where they face torture or persecution.

Transnational Crimes: Nature and Legal Framework

Transnational crimes are defined by their cross-border nature and their impact on multiple
jurisdictions. They differ from core international crimes (genocide, war crimes, etc.) in that

75
they may not arise from state policy or armed conflict, but they undermine international
peace and security.

Examples include:

• Human trafficking ~
• Migrant smuggling T

• Drug trafficking -

• Money laundering T

• Cybercrime1

• Environmental crime -

• Arms trafficking
z
The UN Convention Against Transnational Organized Crime (Palermo Convention) and
-
its protocols provide the primary legal framework for tackling such crimes. The Convention
-

emphasizes international cooperation, mutual legal assistance, and the criminalization of

-
participation in organized criminal groups.
-

While transnational crimes are generally prosecuted under domestic law, international
-
instruments and agencies like UNODC facilitate coordination, extradition, and best practices.
These crimes are increasingly relevant to hybrid tribunals and universal jurisdiction,
-
especially where they intersect with terrorism or human rights violations.
-

76
X
they may not arise from state policy or armed conflict, but they undermine international
peace and security.

Examples include:

• Human trafficking

• Migrant smuggling

• Drug trafficking

• Money laundering

• Cybercrime

• Environmental crime

• Arms trafficking

The UN Convention Against Transnational Organized Crime (Palermo Convention) and

its protocols provide the primary legal framework for tackling such crimes. The Convention
emphasizes international cooperation, mutual legal assistance, and the criminalization of
participation in organized criminal groups.

While transnational crimes are generally prosecuted under domestic law, international
instruments and agencies like UNODC facilitate coordination, extradition, and best practices.
These crimes are increasingly relevant to hybrid tribunals and universal jurisdiction,
especially where they intersect with terrorism or human rights violations.

76