Relationships between International Criminal Law and Other Branches of International Law [51] 9789004521506, 9789004521490

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William A. Schabas - 978-90-04-52150-6

© The Hague Academy of International Law, 2022 All rights reserved

ISBN 978-90-04-52149-0 Full text of the General Course published in June 2021 in the Recueil des cours, Vol. 417.

Cover photograph : Autumn Landscape, by Louisa Schabas. William A. Schabas - 978-90-04-52150-6

THE HAGUE ACADEMY OF INTERNATIONAL LAW

A collection of law lectures in pocketbook form

2022 William A. Schabas - 978-90-04-52150-6

William A. Schabas - 978-90-04-52150-6

Relationships between International Criminal Law and Other Branches of International Law

William A. Schabas - 978-90-04-52150-6

William A. Schabas - 978-90-04-52150-6

Relationships between International Criminal Law and Other Branches of International Law WILLIAM A. SCHABAS

William A. Schabas - 978-90-04-52150-6

William A. Schabas - 978-90-04-52150-6

TABLE OF CONTENTS Chapter 1.  Introduction. . . . . . . . . . . . . . . . 11 Chapter 2.  General international law. . . . . . . . . 2.1.  Sources of international criminal law. . . . . 2.1.1.  Treaty law. . . . . . . . . . . . . . . . 2.1.1.1.  Presumption of non-retroactivity. . . . . . . . . . . . . . . 2.1.1.2.  Principles of interpretation.. 2.1.2.  Customary international law. . . . . . 2.1.3.  General principles of law. . . . . . . . 2.1.4.  Peremptory norms (jus cogens). . . . . 2.2.  Jurisdiction and immunities. . . . . . . . . . 2.2.1.  Jurisdiction – territorial, personal and universal. . . . . . . . . . . . . . . . . 2.2.2. Immunities. . . . . . . . . . . . . . . . 2.3.  State responsibility. . . . . . . . . . . . . . . 2.4.  Use of force. . . . . . . . . . . . . . . . . . . Chapter 3.  International humanitarian law. . . . . . 3.1.  Defining war crimes. . . . . . . . . . . . . . 3.2. Limitations on attacks and the conduct of hostilities. . . . . . . . . . . . . . . . . . . . 3.3.  Asymmetric war crimes in non-international armed conflict. . . . . . . . . . . . . . . . . . Chapter 4.  Refugee law. . . . . . . . . 4.1.  Exclusion of war criminals. . . . 4.2.  International crimes, population refugee flows. . . . . . . . . . .

25 25 25 31 38 44 59 63 70 70 74 77 82 89 96 104 110

. . . . . . . 124 . . . . . . . 126 transfer and . . . . . . . 144

Chapter 5. Human rights law and international criminal law. . . . . . . . . . . . . . . . . . . . . 153 5.1.  The Rome Statute and Human Rights. . . . . 158 5.1.1.  Internationally recognised human rights (Arts. 21 (3) and 69 (7) ) and fundamental rights (Art. 7 (1) (h) and 7 (2) (g) ).. . . . . . . . . . . . . . . . 160 William A. Schabas - 978-90-04-52150-6

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5.1.2.  Qualifications, nomination and election of judges (Arts. 36 (3) (b) (ii) ).. 169 5.1.3.  Admissibility of evidence (Art. 69 (7) ). 171 5.2.  International crimes and human rights. . . . . 174 5.2.1.  The crime of genocide. . . . . . . . . 176 5.2.2.  Crimes against humanity. . . . . . . . 183 5.3.  Principle of legality. . . . . . . . . . . . . . . 190 5.4.  Fair trial rights. . . . . . . . . . . . . . . . . 201 5.5. Penalties. . . . . . . . . . . . . . . . . . . . . 212 5.6.  Procedural obligation. . . . . . . . . . . . . . 222 5.7.  Commissions of Inquiry. . . . . . . . . . . . 231 Chapter 6.  Conclusions. . . . . . . . . . . . . . . . 242 About the Author. . . . . . . . . . . . . . . . . . . . 249 Biographical note.. . . . . . . . . . . . . . . . . . 249 Principal publications. . . . . . . . . . . . . . . . 250

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CHAPTER 1

INTRODUCTION This course starts from the premise that international criminal law is a “branch of international law”. Moreover, it has special relationships with other “branches of international law”, in particular international human rights law, international humanitarian law and international refugee law. It is also, of course, infused with general international law, which is probably more of a trunk or a root than a branch. In Barcelona Traction, the International Court of Justice spoke of “branches of international law” 1. The Court has identified the law of treaties and that of State responsibility as “branches of international law” 2. In its advisory opinion on the Wall, the International Court of Justice referred to international human rights law and international humanitarian law as “branches of international law” 3. The European Court of Human Rights has also recognised these two “branches of international law” 4.   Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 3, para. 70. 2   Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 7, para. 47. 3   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, para. 106. Also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168, para. 216 and the Separate Opinion of Judge Simma, paras. 17, 32, 38. 4   Hassan v. United Kingdom [GC], No. 29750/09, para. 102, ECHR 2014-VI. Also Kononov v. Latvia, No. 36376/04, para. 115, 24 July 2008; ibid., Joint Dissenting Opinion of Judges Fura-Strandström, Davíd Thór Björgvinsson and Ziemele, para. 5. 1

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In 1949, as part of the preparation for the first session of the International Law Commission, the United Nations Secretariat prepared a survey that referred on several occasions to the “branches of international law” 5. There were nine general headings, but some of them had several subheadings. In total, the Secretariat identified twenty-two areas that might be considered by the Commission in its work of the codification and progressive development of international law 6. It did not refer expressly to “international criminal law”. One of the subheadings under “Jurisdiction” was “Jurisdiction with regard to Crimes committed outside National Territory”. The Secretariat devoted several paragraphs to discussing this issue, citing Lotus and some treaty developments, but nowhere contemplating the possible exercise of universal jurisdiction over genocide, crimes against humanity, war crimes and crimes against peace 7. On the “subjects of international law”, observed the Secretariat, “[i]n the sphere of duties imposed by international law the principle that the obligations of international law bind individuals directly regardless of the law of their State and of any contrary order received from their superiors was proclaimed” in the Charter of the  Survey of International Law in Relation to the Work of Codification of the International Law Commission, Preparatory Work within the Purview of Article 18, paragraph 1 of the Statute of the International Law Commission: Memorandum Submitted by the Secretary-General, A/CN.4/1/Rev.l, paras. 8, 10, 12, 15, 17, 26, 38, 50, 51, 54, 68, 70, 71, 73, 74, 83, 95, 96, 98, 104. 6   See also the list in the first report of the Commission to the General Assembly: Yearbook . . . 1949, p. 277, para. 15. 7  Survey of International Law in Relation to the Work of Codification of the International Law Commission, Preparatory Work within the Purview of Article 18, paragraph 1, of the Statute of the International Law Commission: Memorandum Submitted by the Secretary-General, A/CN.4/1/ Rev.l, paras. 61-63. 5

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International Military Tribunal 8. “On a different plane”, said the Secretariat, the Nuremberg Charter and the judgment of the Tribunal “proclaimed the criminality of offences against humanity, i.e., of such offences against the fundamental rights of man to life and liberty, even if committed in obedience to the law of the State. To that extent, in a different sphere, positive law has recognised the individual as endowed, under international law, with rights the violation of which is a criminal act” 9. Under the heading “The Individual in International Law”, the Secretariat examined four subtopics: “The Law of Nationality”, “The Treatment of Aliens”, “Extradition” and “The Right of Asylum” 10. Here, the shadows of what would subsequently be labelled “international criminal law”, “international human rights law” and “international refugee law” can be discerned. International humanitarian law, or the law of war as it was then commonly described, was nowhere to be seen. With respect to the right of asylum, the Secretariat referred to the 1937 Convention for the Creation of an International Criminal Court and the tendency to deny asylum to “traitors, ‘quislings’, and persons acting contrary to the principles of the United Nations”. The Secretariat thought it might be possible “that in a world in which the observance of human rights and fundamental freedoms has become a reality there will be no room for revolutions which purport to vindicate the rights of man or for persecutions which assault them” 11. Although the Secretariat gave the subject scant attention, international criminal law was already very much at the heart of the work of the International Law Commission. It had been specifically assigned responsibility by the General Assembly for both the codification of the   Ibid., para. 29.   Ibid., para. 30.   Ibid., paras. 85-87. 11   Ibid., para. 89. 8 9

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Nuremberg principles 12 and the preparation of a statute of an international criminal court 13. More than twenty years later, the International Law Commission asked the Secretary-General to repeat the exercise of listing the relevant branches of international law. The list of “main branches” had grown considerably, to seventeen broad categories and forty-five subcategories 14. More importantly, the focus had shifted. Among the seventeen categories were titles that had not appeared on the earlier list: “international criminal law”, “The law relating to armed conflicts” and “international law relating to individuals”, the latter category comprising four subtopics: “the law of nationality”; “extradition”; “right of asylum”; and “human rights”. The Secretary-General divided the subject of international criminal law into six subtopics: principles of international law recognised in the charter of the Nurnberg Tribunal and in the judgment of the Tribunal; the draft Code of Offences Against the Peace and Security of Mankind; Convention on the Prevention and Punishment of the Crime of Genocide; other offences of international concern; Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity; and the question of an international criminal jurisdiction. Most of the SecretaryGeneral’s commentary was focussed on the definitions of international crimes and crimes of international concern, with some additional reference to issues arising in the context of domestic prosecution such as statutory limitation and the exercise of universal jurisdiction.  Formulation of the Principles Recognised in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, A/RES/177 (II). 13  Study by the International Law Commission of the Question of an International Criminal Jurisdiction, A/RES/260 (III) B. 14  Survey of International Law: Working Paper Prepared by the Secretary-General, A/CN.4/245. 12

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Only one paragraph was directed to the international institutional dimension 15. The report noted that although the International Law Commission had undertaken preliminary work on an international criminal court in the early 1950s, the matter was in abeyance. The SecretaryGeneral observed that in 1968 the General Committee had decided that it was not opportune to include an item entitled “international criminal jurisdiction” on the agenda of the General Assembly 16. The Secretary-General’s 1971 report confirmed the emergence of three distinct branches of international law, namely human rights law, humanitarian law and international criminal law, within the mainstream of public international law. That process was to continue and indeed accelerate in subsequent decades. Moreover, developments in each of the three branches would contribute to the dynamism of the others. For example, within international human rights law there was growing attention to what has sometimes been called the horizontal dimension; that is, the obligation on the State imposed by human rights law to ensure that the rights of individuals are not violated by other individuals. That States could be held accountable for failing to investigate and prosecute gross and systematic violations of human rights was recognised by the Inter-American Court of Human Rights in a 1988 judgment 17. Other international human rights bodies followed its lead 18. It was only a short step to call for prosecution by other States on   Ibid., paras. 433-450.   Ibid., paras. 441, 450. 17   Velásquez-Rodríguez v. Honduras, Judgment (Merits), 29 July 1988, Series C, No. 4. 18   McCann and Others v. The United Kingdom, 27 September 1995, paras. 157-164, Series A, No. 324; Šilih v. Slovenia [GC], No. 71463/01, para. 159, 9 April 2009; Umetaliev et al. v. Kyrgyzstan (No. 1275/2004), Views, 30 October 2008, CCPR/C/94/D/1275/2004, para. 9.2; General Comment No. 31: The Nature of the General Legal Obligation Imposed 15 16

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the basis of universal jurisdiction or by international criminal tribunals, substituting the labels provided by international criminal law in place of the nomenclature of human rights. The International Law Commission flirted with this melding of the two branches of law when it rebranded crimes against humanity as “systematic or mass violations of human rights” in the 1991 version of the draft Code of Crimes Against the Peace and Security of Mankind 19. As for international humanitarian law, it became increasingly preoccupied with non-international armed conflicts where there was an obvious overlap with human rights law. International humanitarian law also focussed on the prosecution of war crimes, adjusting its perspective from one favouring amnesty at the end of conflicts to an increasingly rigid insistence on accountability. The first references to international criminal law as a distinct branch of public international law appear in the nineteenth century. At this early stage, the term often seems to have been used for what today would be called comparative criminal law. International criminal law was treated as a distinct topic at early sessions of the International Law Association, the focus being on the law of extradition 20. Early volumes of the Yearbook of the Institut de droit international use the terms “droit pénal international” and “droit international pénal” interchangeably, in a context where the issues involve extradition and the scope of territorial jurisdiction and not on States Parties to the Covenant, 29 March 2004, HRI/ GEN/1/Rev.8, paras. 15, 18. 19   Yearbook . . . 1991, Vol. II (Part 2), p. 103. 20   Association for the Reform and Codification of the Law of Nations, Report of the Third Annual Conference, Held at The Hague, 1-6 September 1875, London: William Clowes and Sons, 1876, p. 38; Association for the Reform and Codification of the Law of Nations, Report of the Fourth Annual Conference, Held at Bremen, 25-28 September 1876, London: William Clowes and Sons, 1880, p. 38. William A. Schabas - 978-90-04-52150-6

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the definitions of international crimes and the operation of international tribunals, matters that were not yet on the international radar screen 21. Oppenheim’s textbook, published at the beginning of the twentieth century, did not use the term “international criminal law”, although it did address the repression of piracy and issues of extradition 22. It was only at the Paris Peace Conference in 1919 that the clear outlines of the modern discipline of international criminal law began to appear. An organ of the Conference, the Commission on Responsibilities, was composed of several of the most prominent public international lawyers of the day. It worked intensively over several weeks in February and March 1919 developing proposals on the substantive content of international criminal law as well as the framework of an international criminal court 23. The pioneering work of the Commission on Responsibilities had only limited results in practice. Nevertheless, it manifested one aspect of a process that was to radically transform international law in the coming decades. By the 1940s, it was established that States could no longer resort to force as a means of settling international disputes. Already proclaimed in the 1928 KelloggBriand Pact 24, this was confirmed in the Charter of the United Nations and the criminalisation of aggressive war by the International Military Tribunal. Furthermore, the notion that the treatment by States of their own populations was beyond the reach of international law began to fracture. Two branches of law were involved  For example, Annuaire de Institut de droit international, (1882/1883) Vol. VI, p. 296; Annuaire de Institut de droit international, (1887/1888) Vol. IX, pp. 334-336. 22  Lassa Oppenheim, International Law: Peace, Vol. I, London: Longmans, 1906, pp. 330, 382-401. 23  William A. Schabas, The Trial of the Kaiser, Oxford: Oxford University Press, 2018, pp. 99-120. 24  General Treaty for Renunciation of War as an Instrument of National Policy, (1929) 94 LNTS 57. 21

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here: the emerging law of international human rights, which imposed obligations upon States that were of international concern, and international criminal law, by which individuals could be prosecuted for atrocities even when these were committed under cover of law and as a matter of State policy. The modern branch of international criminal law took recognisable form in the post-Second World War years. Following the judgment at Nuremberg and in reply to a proposal from Judge Francis Biddle, the US president Harry S. Truman proposed that the United Nations enact “a code of international criminal law” 25. The General Assembly responded positively, adopting a resolution affirming the “principles of international law” recognised by the Charter of the International Military Tribunal 26. On the same day, the Assembly also recognised that genocide was a crime “under international law” 27. Two years later it adopted the Convention on the Prevention and Punishment of the Crime of Genocide 28. By the end of the 1940s, there was a reasonably well-defined corpus of international crimes, corresponding to the categories in the Charter of the International Military Tribunal to which the grave breach provisions of the Geneva Conventions were added. The International Law Commission reprised the definitions of war crimes, crimes against peace and crimes against humanity from the Nuremberg Charter in its draft Nuremberg Principles 29, although these were never formally endorsed by the General  Department of State Bulletin, 24 November 1946, p. 954.   Affirmation of the Principles of International Law Recognised by the Charter of the International Military Tribunal, A/RES/95 (I). 27  The Crime of Genocide, A/RES/96 (I). 28  Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277. 29  Report of the International Law Commission on its Second Session (5 June-29 July 1950), A/1316, paras. 95-127. 25 26

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Assembly 30. Because there was still a whiff of uncertainty about the claim that the crimes prosecuted by the International Military Tribunal were not an exercise in ex post facto justice, the drafters of the European Convention on Human Rights adopted what is known as the “Nuremberg clause”. It sheltered prosecutions for acts or omissions that, at the time they were committed, were “criminal according to the general principles of law recognised by civilised nations” 31. The core of international criminal law at the present time is relatively easy to identify. Substantively, it consists of the four “most serious crimes of concern to the international community as a whole” listed in Article 5 of the Rome Statute: genocide, crimes against humanity, war crimes and the crime of aggression. The very detailed definitions in the Rome Statute are authoritative but they are certainly not exhaustive. For example, the definition of war crimes contains a prohibition of the use of “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict”, but only to the extent that they are listed  Formulation of the Nürnberg Principles, A/RES/488 (V). For the debates in the Sixth Committee, see A/C.6/SR.232237; Draft Code of Offences Against the Peace and Security of Mankind, A/CN.4/44, paras. 16-131. 31  European Convention on Human Rights, (1953) 213 UNTS 222, Article 7 (2). See Triestino Mariniello, “The ‘Nuremberg Clause’ and Beyond: The Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence”, (2013) 82 Nordic Journal of International Law 221. The clause was derived from the 1949 draft of what would become the International Covenant on Civil and Political Rights (Draft International Covenant on Human Rights, prepared by the Drafting Committee, E/800, Annex B, pp. 15-35, at p. 22), and was based on a joint draft of Belgium and the Philippines, E/CN.4/SR.37, pp. 3-4. 30

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in an annex to the Statute 32. But no annex was included when the Statute was adopted, in 1998. A decade later, Belgium vainly attempted to complete this unfinished business, engaging in negotiations in order to develop a list of such weapons and proposing an amendment to the Statute 33. The reason the annex is not included is not because such weapons do not exist nor is it because their use is not criminal under international law. The Security Council authorised the International Criminal Tribunal for the former Yugoslavia to prosecute the “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering” 34, thereby providing compelling evidence of its status as a war crime under customary international law. The definition of crimes against humanity, which requires that they be part of an attack on a civilian population pursuant to a “State or organisational policy”, provides another example 35. A judgment of the Appeals Chamber of the International Criminal Tribunal holds that no such requirement is necessary for proof of crimes against humanity under customary international law 36. In its commentary on the draft articles on crimes against humanity, the International Law Commission noted that the definition of the crime against humanity of “enforced disappearance of persons” is narrower than that of other legal instruments, citing the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, the 1994 Inter-American Convention on Forced Disappearance of Persons and  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 (2) (b) (xx). 33  C.N.733.2009.TREATIES-8 . 34  Statute of the International Criminal Tribunal for the former Yugoslavia, S/RES/827 (1993), annex, Article 3 (a). 35  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 7 (2) (a). 36   Prosecutor Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 98. 32

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2006 International Convention for the Protection of All Persons Against Enforced Disappearance 37. International criminal law also has an important institutional dimension. The first serious proposals were part of the negotiations at the close of the First World War 38, although there is evidence that the idea was floated as early as the end of the Franco-Prussian War, in 1870 39. The legitimacy of temporary international criminal tribunals was confirmed at Nuremberg and Tokyo. Although the drafters of the Genocide Convention failed to agree on the principle of universal jurisdiction, they mandated the preparation of a statute of a permanent international criminal court 40, a project that would take fifty years to come to fruition. A new generation of temporary or ad hoc tribunals in the 1990s was central to the renaissance of international justice that culminated in the adoption of the Rome Statute. Institutionally, the principal organ today is of course the International Criminal Court. The authority of the Security Council to establish temporary or ad hoc tribunals is also well established. Its enthusiasm for such initiatives appears to have waned, but a return to the practice can never be ruled out. Reacting to the inaction of the   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, p. 47. 38  A draft statute for an international criminal court is found in the French Archives Nationales: Projet de Convention entre tous les alliés, August 1916, Série A, Paix, A-1025-3, p. 10. The Commission on Responsibilities considered several draft statutes; for example, see Memorandum Submitted by the British Delegates, 13 February 1919, USNA 181.1201/16, pp. 27-33. 39  Benjamin E. Brockman-Hawe, “Punishing Warmongers for Their Mad and Criminal Projects: Bismarck’s Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War”, (2017) 52 Tulsa Law Review 241. 40  Study by the International Law Commission of an International Criminal Jurisdiction, A/RES/260 (III) B. 37

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Security Council, other organs of the United Nations have sought ways to contribute to international justice and accountability through the creation of criminal investigative mechanisms 41. If it is relatively simple to describe the core of international criminal law, the boundaries of the branch are more difficult to discern. It has been suggested that there are other categories of international crime that belong with the four core crimes of the Rome Statute. Attempts to amend the Statute with the addition of terrorism and drug trafficking have been unsuccessful. To some this confirms that they are transnational rather than truly international crimes. To others, the mere presence of draft amendments is seen as evidence that they are not unrelated to the four core crimes. The admissibility of certain justifications and excuses remains controversial, such as the defence of duress or compulsion, rejected by the judges of the International Criminal Tribunal for the former Yugoslavia 42 but codified in the Rome Statute 43. Institutionally, the phenomenon of so-called “hybrid tribunals” blurs the distinction between national   International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, A/RES/71/248; Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar, A/HRC/RES/39/2 (establishing the Independent Investigative Mechanism for Myanmar). 42   Prosecutor v. Erdemović (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 57; Prosecutor v. Erdemović (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 25; Prosecutor v. Erdemović (IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, para. 66. 43  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 31; Prosecutor v. Ongwen (ICC02/04-01/15), Trial Judgment, 4 February 2021, paras. 25812672. 41

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and international courts. Just as national courts may prosecute international crimes, it is also possible for “internationalised” courts to confine their subject-matter jurisdiction to national legislation. The Study Group on fragmentation of the International Law Commission, chaired by Martti Koskenniemi, referred to “international criminal law” in the context of the “emergence of new and special types of law”. It described these new special types of law as “self-contained regimes”, “new types of specialised law” that “do not emerge accidentally but seek to respond to new technical and functional requirements” 44. Koskenniemi explained that “[t]he widest of special regimes – denominations such as ‘international criminal law’, ‘humanitarian law’, ‘trade law’, ‘environmental law’ and so on – emerge from the informal activity of lawyers, diplomats, pressure groups, more through shifts in legal culture and in response to practical needs of specialisation than as conscious acts of regime-creation” 45. Although the Commission’s Study Group focussed on the problem of “fragmentation”, it might well have packaged its work as the consideration of relationships between different branches of law. International criminal law sits within public international law more generally. Thus the relationship between the “special regime” that it creates and the general rules of international law requires examination. Beyond that problem, which has a hierarchical dimension, is the interaction between international criminal law and other branches or “special regimes” of international law. Here, the main candidates are international human rights law, international humanitarian law and, to a somewhat lesser extent, international refugee law. The relationship between them all is characterised not only  Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi, A/CN.4/L.682, para. 15. 45   Ibid., para. 158. 44

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by an important degree of complementarity and synergy but also some significant elements of dissonance. It is the subject matter of this course.

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CHAPTER 2

GENERAL INTERNATIONAL LAW 2.1.  Sources of international criminal law Like most branches of international law, international criminal law draws upon the three principal sources listed in Article 38 (1) of the Statute of the International Court of Justice. 2.1.1.  Treaty law Many branches of international law were codified based upon long-standing custom, international humanitarian law being a good example. This is not the case with international criminal law, which was cut from whole cloth in the form of treaties. To some extent, the definitions of international crimes drew upon the “customs of war”, but these were not formulated as offences and contemplated no penalty for breaches. Article 227 of the Treaty of Versailles, adopted on 28 June 1919, is the first relevant conventional provision. It succinctly provided for the establishment of an international tribunal to be composed of judges from five countries. Article 227 also defined the subject-matter jurisdiction with an enigmatic reference to a “supreme offence against international morality and the sanctity of treaties” 46. A year later, the Treaty of Sèvres contemplated prosecution by a criminal tribunal that might be established by the League of Nations and that was to exercise jurisdiction over those responsible for the “massacres” perpetrated on 46

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Ottoman territory during the First World War 47. This was all completely without precedent. The drafters of these texts never claimed that they were drawing upon custom. Neither provision was ever implemented; the Treaty of Sèvres was never even ratified. During the interwar years, professional bodies like the International Law Association devoted attention to the preparation of draft legal instruments in the area of international criminal law 48. In 1937 the League of Nations adopted a treaty that provided for an international criminal tribunal with jurisdiction over crimes of terrorism 49. The treaty failed to obtain the minimum number of ratifications for entry into force. The International Military Tribunal was established pursuant to a treaty adopted by the four occupying powers of Germany, negotiated in London from late June to early August 1945. The treaty was subsequently ratified by nineteen other Allied states, a fact duly noted by the judges of the Tribunal at the very beginning of the final judgment 50. The International Military Tribunal for the Far East was established by a decree of the occupying power 51. The 1948 Genocide Convention contemplated  Treaty of Sèvres, (1920) UKTS 11; (1929) 99 (3rd Series), DeMartens, Recueil général des traités, No. 12, p. 720 (French version), Article 230. 48  Historical Survey of the Question of International Criminal Jurisdiction: Memorandum Submitted by the SecretaryGeneral, A/CN.4/7/Rev.1, pp. 12-15. 49  Convention for the Creation of an International Criminal Court, in Proceedings of the International Conference on the Repression of Terrorism, Geneva, 1-16 November 1937, p. 5. See Geoffrey Marston, “Early Attempts to Suppress Terrorism: The Terrorism and International Court Conventions of 1937”, (2002) 73 British Yearbook of International Law 293. 50   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 171. 51  Charter of the International Military Tribunal for the Far East (26 April 1946), in Neil Boister and Robert Cryer (eds.), Documents on the Tokyo International Military Tribunal: 47

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the establishment of an international criminal tribunal 52. A resolution adopted by the General Assembly at the same time as the Convention itself called for work to begin on drafting the statute of such a tribunal 53. In the modern period, the International Criminal Court is of course the product of an international treaty: the Rome Statute of the International Criminal Court. The Statute itself provides for the negotiation and adoption of other treaties, namely a relationship agreement with the United Nations 54 and an agreement with the host State 55. The Final Act of the Rome Conference mandated the preparation of a convention on privileges and immunities 56. Two other international criminal tribunals are also creatures of treaty: the Special Court for Sierra Leone and the Special Tribunal for Lebanon. Treaties have also contributed to the establishment and operation of some national courts such as the Extraordinary Chambers of the Courts of Cambodia and the Kosovo Specialist Chambers. Sometimes labelled “hybrid” courts, they are in reality institutions Charter, Indictment and Judgments, Oxford: Oxford University Press, 2008, pp. 7-11, Article 6. 52  Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, Article 6. 53  Study by the International Law Commission of an International Criminal Jurisdiction, A/RES/260 (III) B. 54   Negotiated Relationship Agreement between the International Criminal Court and the United Nations, ICC-ASP/3/ Res.1, Annex, pursuant to Article 2 of the Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90. 55  Headquarters Agreement between the International Criminal Court and the Host State, ICC-ASP/5/Res.3, Annex II, pursuant to Article 3 of the Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90. 56  Agreement on the Privileges and Immunities of the International Criminal Court, (2004) 2271 UNTS 3, pursuant to Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Resolution F, A/CONF.183/13 (Vol. I), pp. 67-73. William A. Schabas - 978-90-04-52150-6

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established entirely by virtue of national law. The relevant international agreements have imposed obligations upon the governments of Cambodia 57 and Kosovo 58, but they have not done anything to remove the tribunals from the national justice system. In principle, they can be modified or even abolished by national legislation, although this might well put the States in breach of the international obligations imposed by the relevant treaties. Treaties play an important role in the definition of international crimes and in specifying the legal rules applicable to investigation and prosecution. The Genocide Convention of 1948 is the great paradigm. It not only defines the crime of genocide and “other acts” such as conspiracy and attempt; it also imposes obligations with respect to prevention and punishment. A draft instrument on crimes against humanity similar to the Convention but also reflecting the progressive development of international criminal law was adopted by the International Law Commission in 2019 59. Some specialised treaties also recognise certain acts as crimes against humanity and provide a role for international   Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003. For ratification by the United Nations General Assembly, see Khmer Rouge trials, A/RES/57/228. 58  The Agreement consists of an exchange of letters between Atifete Jahjaga, president of the Republic of Kosovo, and Baroness Catherine Ashton on behalf of the European Union, dated 14 April 2014. The Agreement was ratified by Law No. 04/L-274 on Ratification of the International Agreement between the Republic of Kosovo and the European Union on the European Union Rule of Law Mission in Kosovo, 23 April 2014. 59   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, paras. 34-45. 57

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criminal justice institutions 60. Grave breaches, which are a category of war crimes, are defined in the four Geneva Conventions and in Additional Protocol I accompanied by obligations with respect to investigation and prosecution 61. On the periphery of international criminal law are the many suppression conventions dealing with crimes of international concern, such as piracy 62, slavery and the slave trade 63, crimes against the United Nations and associated personnel and against “internationally protected persons” 64, terrorism 65, organised  International Convention for the Protection of All Persons from Enforced Disappearance, (2010) 2716 UNTS 3, Article 5; International Convention on the Suppression and Punishment of the Crime of Apartheid, (1976) 1015 UNTS 243, Article I (1). 61  Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1950) 75 UNTS 31, Article 50; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, Article 51; Convention (III) Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, Article 130; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, Article 147; Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Articles 11, 85 (3) and (4). 62  United Nations Convention on the Law of the Sea, (1994) 1833 UNTS 3, Article 100. 63  For example, Slavery Convention, (1927) 60 LNTS 254; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, (1957) 266 UNTS 3. 64  Convention on the Safety of United Nations and Associated Personnel, (1999) 2051 UNTS 363; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, (1975) 1035 UNTS 167. 65  International Convention for the Suppression of Terrorist Bombings, (2001) 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism, (2002) 60

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crime 66, hostage-taking 67, mercenaries 68, trafficking in drugs 69 and obscene materials 70, destruction of cultural objects 71, human trafficking 72, corruption 73 and theft or destruction of undersea telecommunications cables 74. The discussion would not be complete without reference to the treaties that prohibit the statutory limitation of certain international crimes, although these have not been widely ratified 75. 2178 UNTS 197; International Convention for the Suppression of Acts of Nuclear Terrorism, (2007) 2445 UNTS 89. 66  United Nations Convention Against Transnational Organised Crime, (2003) 2225 UNTS 209. 67  International Convention Against the Taking of Hostages, (1983) 1316 UNTS 205. 68   International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, (2001) 2163 UNTS 75. 69   For example, United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, (1990) 1582 UNTS 95; Single Convention on Narcotic Drugs, 1961, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961, (1975) 976 UNTS 105. 70  Protocol Amending the Agreement for the Suppression of the Circulation of Obscene Publications, (1949) 30 UNTS 3. 71   For example, Agreement for the Repression of Obscene Publications, (1920) 103 BFSP 251. 72  For example, International Convention for the Suppression of the Traffic in Women and Children, (1922) 9 LNTS 415; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, (1951) 96 UNTS 271; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, (2003) 2237 UNTS 319. 73   United Nations Convention Against Corruption, (2005) 2349 UNTS 41. 74   Convention for the Protection of Submarine Telegraph Cables, 24 Stat. 989; Treaty Series 380. 75  Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, (1970) 754 UNTS 73; European Convention on the Non Applicability of Statutory Limitation to Crimes Against Humanity and

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Treaty law is thus of certain relevance to the study of international criminal law. Many issues of treaty law arise with respect to instruments like the Rome Statute, but they are not peculiar to international criminal law and need not be considered here. A few specific issues are of particular concern. Two of them, the presumption of non-retroactivity and principles of interpretation, are examined below. 2.1.1.1.  Presumption of non-retroactivity Article 28 of the Vienna Convention on the Law Treaties states that “[u]nless a different intention appears from the treaty”, it does not bind a party “in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party” 76. The principle, which is properly understood as a rule of interpretation, is derived from customary international law 77. Retroactivity is a common feature of international criminal law treaties that establish temporary or ad hoc tribunals. The Treaty of Versailles provides for the prosecution of Germany’s former emperor for acts prior to its entry into force 78. The Treaty of Sèvres, which was adopted in 1920, contemplated prosecution for War Crimes of January 25, 1974, ETS 82. See: R. H. Miller, “The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity”, (1971) 65 American Journal of International Law 476. 76  Vienna Convention on the Law of Treaties, (1980) 1155 UNTS 331, Article 28. 77   Ambatielos case (Jurisdiction), Judgment, 1 July 1952, ICJ Reports 1952, p. 2, at p. 40; The Mavrommatis Palestine Concessions (Jurisdiction), Greece v. Great Britain, Judgment, 30 August 1924, PCIJ Reports, Series A, No. 2, pp. 33-34. See also Herbert W. Briggs, “Reflections on NonRetroactivity of Treaties”, (1968) 21 Revista Espanola de Derecho Internacional 320. 78  Treaty of Versailles, (1919) 225 Parry 188, 2 Bevans 235, Article 217.

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“massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on 1 August 1914” 79. The London Agreement established the International Military Tribunal for prosecution of “the major war criminals of the European Axis” 80. The temporal jurisdiction of the Statute of the Special Court for Sierra Leone began in November 1996, more than five years before the treaty was adopted and entered into force 81. The Statute of the Special Tribunal for Lebanon, agreed by Lebanon and the United Nations in 2006, provided for jurisdiction over crimes committed “between 1 October 2004 and 12 December 2005” 82. Permanent international criminal tribunals, on the other hand, confine themselves to prospective application. The Rome Statute makes quite explicit an absolute prohibition of the prosecution of crimes perpetrated prior to its entry into force, on 1 July 2002 83. A provision in the Elements of Crimes of the Rome Statute clarifies any ambiguity about retroactive effects with respect to the crime against humanity of enforced disappearance 84. Similarly, the so-called Malabo Protocol, which governs the jurisdiction of the African Court over international crimes, limits its jurisdiction to crimes committed  Treaty of Sèvres, (1920) UKTS 11; (1929) 99 (3rd Series), DeMartens, Recueil général des traités, No. 12, p. 720 (French version), Article 230. 80  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Article 1. 81  Statute of the Special Court for Sierra Leone, Freetown, 16 January 2002, Article 1 (1). 82  Statute of the Special Tribunal for Lebanon, S/RES/1757 (2007), Attachment, Article 1. 83  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 11, 24. 84  Elements of Crimes, ICC-ASP/1/3 and Corr.1, part II.B, fn. 24. 79

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after the entry into force of the treaty 85. The 1937 treaty on an international criminal court, which was created in reaction to a notorious assassination, did not have any provision limiting its temporal jurisdiction 86. Probably the presumption of non-retroactivity of treaties would have applied had the court ever been established. Of the principal universal treaties that define core international crimes and provide for their suppression, only the Convention on Enforced Disappearance expressly addresses the issue of temporal scope. Article 35 (1) of the Convention deals with the competence of the Committee on Enforced Disappearance, specifying that it is limited “solely in respect of enforced disappearances which commenced after the entry into force of this Convention”. Paragraph 2 of Article 35 deals with the situation of States that become parties after the Convention has entered into force: “If a State becomes a party to this Convention after its entry into force, the obligations of that State vis-à-vis the Committee shall relate only to enforced disappearances which commenced after the entry into  Statute of the African Court of Justice and Human Rights, Article 45 (e) (1), as amended by Protocol to Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Malabo, 27 June 2014, Article 14. See Gerhard Werle and Moritz Vormbaum (eds.), The African Criminal Court: A Commentary on the Malabo Protocol, Dordrecht: Springer, 2017. 86  Convention for the Creation of an International Criminal Court, in Proceedings of the International Conference on the Repression of Terrorism, Geneva, 1-16 November 1937, p. 5. See J. G. Starke, “The Convention for the Creation of an International Criminal Court”, (1938) 19 British Yearbook of International Law 216; Ben Saul, “The Legal Response of the League of Nations to Terrorism”, (2006) 4 Journal of International Criminal Justice 78; Geoffrey Marston, “Early Attempts to Suppress Terrorism: The Terrorism and International Criminal Court Conventions of 1937”, (2002) 73 British Yearbook of International Law 293. 85

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force of this Convention for the State concerned.” 87 In its report to the Committee on Enforced Disappearances, Spain explained that following its ratification of the International Convention for the Protection of All Persons from Enforced Disappearance, “certain organisations – associations and non-governmental organisations (NGOs) which may or may not have consultative status – have raised the issue of its applicability to enforced disappearances alleged to have taken place during the civil war and under the Franco regime and the need to abrogate or declare inapplicable the Amnesty Act (No. 46/1977) of 15 October”. Spain invoked Article 35 (1) of the Convention 88. Strictly speaking, Article 35 of the Convention applies only to the temporal jurisdiction of the Convention and not to the treaty as a whole. The Committee on Enforced Disappearances has adopted a somewhat engimatic “statement” on the ratione temporis issue that points to the relevance of ‘information related to the past . . . as a means to understand fully the challenges of the present” 89. The international conventions dealing with genocide, slavery, apartheid and torture have no provision specifying whether or not they apply retroac International Convention for the Protection of All Persons from Enforced Disappearance, (2010) 2716 UNTS 3. 88   Reports of States Parties Pursuant to Article 29, paragraph 1, of the Convention due in 2012, Spain, CED/C/ESP/1, paras. 3-4. 89  Statement on the ratione temporis element in the review of reports submitted by States Parties under the International Convention for the protection of all persons from enforced disappearance, Report of the Committee on Enforced Disappearances, Fifth session (4-15 November 2013), Sixth session (17-28 March 2014), A/69/56, Annex V, pp. 3132, para. 3. See also Report of the Committee on Enforced Disappearances, Eleventh session (3-14 October 2016), Twelfth session (6-17 March 2017), A/72/56, para. 29, in which the Committee ‘reiterated’ its Statement. 87

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tively 90. For each category, there would be little quarrel with the contention that the underlying act was an international crime prior to the adoption of the treaty. Significant debate about the retroactive application of the treaty only appears to have arisen with respect to genocide. The preamble to the Genocide Convention recognises “that at all periods of history genocide has inflicted great losses on humanity”. In the Bosnia v. Serbia case, when the respondent insisted that the Convention could not apply to acts prior to its entry into force, the International Court of Justice confined itself to “the observation that the Genocide Convention – and in particular Article IX – does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis” 91. The Court appeared to justify any retroactive effects of the Convention with reference to the object and purpose of the Convention, invoking its 1951 advisory opinion in this respect 92. It made a similar pronouncement in its 2008 ruling on admissibility in the Croatia v. Serbia case 93. But in February 2015, in its final judgment in the case of Croatia v. Serbia, the Court  International Convention on the Suppression and Punishment of the Crime of Apartheid, (1976) 1015 UNTS 243; Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, (1984) 1465 UNTS 85; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, (1957) 266 UNTS 3. 91   Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, ICJ Reports 1996, p. 595, para. 34. 92   Ibid., citing Reservations to the Convention on Genocide, ICJ Reports 1951, p. 15, at p. 23. 93   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, ICJ Reports 2008, p. 412, para. 123. Also, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, ICJ Reports 1996 (II), p. 617, para. 34.

90

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stated definitively that “the substantive provisions of the Convention do not impose upon a State obligations in relation to acts said to have occurred before that State became bound by the Convention” 94. The Court pointed to the presumption against retroactivity in Article 28 of the Vienna Convention on the Law of Treaties. It acknowledged that the presumption was rebuttable, providing examples of international criminal law treaties with retroactive or retrospective effect, such as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. On the other hand, it pointed to references in the travaux préparatoires of the Genocide Convention where a few States suggested it was “intended to apply to acts taking place in the future and not to be applicable to those which had occurred during the Second World War or at other times in the past” 95. The issue of the retroactive application of the Convention is of course quite separate from that of the use of the term “genocide” to describe acts prior to 1948. That is confirmed by General Assembly Resolution 96 (I), adopted on 11 December 1946, whose import is to recognise genocide as a crime under international law 96. In that resolution the General Assembly “[a]ffirms that genocide is a crime under international law”. The use of the present tense confirms that it was a crime prior to the adoption of the resolution. Thus genocide was an international crime at least two years prior to the adoption of the Convention in 1948. Eichmann was prosecuted for the crime of genocide, although it was relabelled “crimes against the Jewish people” under Israel’s implementing legislation,   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3, para. 100. 95   Ibid., para. 97. 96  The Crime of Genocide, A/RES/96 (I). 94

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which began in 1941 97. While it is unlikely that there will ever be criminal prosecutions of individuals for genocide perpetrated prior to 1941, an inevitable consequence of human longevity, that does not mean that genocide was not previously a crime. On the other hand, unless one adopts a purely natural law perspective, it is difficult to claim that genocide was always a crime under international law. The very concept of crimes against international law does not emerge until late in the long nineteenth century. The question of the retroactive application of the Genocide Convention is also not to be confused with the principle of legality, nullum crimen sine lege. It is well established that crimes under international law were punishable before they had been codified in treaty law or other positive law instruments. This issue is addressed in detail in the section of this course on the relationship between international criminal law and international human rights law, see Chapter 5. What about mechanisms that apply international criminal law created by United Nations bodies acting pursuant to the Charter of the United Nations, which entered into force in 1945? Like the Committee on Enforced Disappearances, the Working Group on Enforced or Involuntary Disappearance has also been confronted with Spanish cases relating to the civil war of 1936-1939. The Working Group takes its mandate from resolutions of the Commission on Human Rights and the Human Rights Council and thereby derives its authority from the Charter of the United Nations 98. In decisions adopted a few decades ago, the Working Group declined to consider disappearances that occurred prior 97 98

  Attorney-General (Israel) v. Eichmann, (1968) 36 ILR 5 (DC), para. 244.   Enforced or Involuntary Disappearances, A/HRC/RES/ 45/3. William A. Schabas - 978-90-04-52150-6

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to the creation of the United Nations in 1945 99. More recently, it issued a general comment, in which it invoked Article 28 of the Vienna Convention on the Law of Treaties, concluding that “when a State is recognized as responsible for having committed an enforced disappearance that began before the entry into force of the relevant legal instrument and which continued after its entry into force, the State should be held responsible for all violations that result from the enforced disappearance, and not only for violations that occurred after the entry into force of the instrument” 100. 2.1.1.2.  Principles of interpretation Three articles of the Vienna Convention on the Law of Treaties deal with principles of interpretation 101. They are widely recognised as expressing general rules of international law that are applicable to treaties adopted prior to the entry into force of the Vienna Convention and even with respect to the more than eighty States that are not parties to it 102. Judges at the International Criminal  Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2003/70, para. 247. 100  General Comment on Enforced Disappearance as a Continuous Crime of the Working Group on Enforced or Involuntary Disappearances, A/HRC/16/48, para. 39. 101  Vienna Convention on the Law of Treaties, (1980) 1155 UNTS 331, Articles 31-33. 102   Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Judgment, 4 February 2021, para. 75; Immunities and Criminal Proceedings (Equatorial Guinea v. France), 11 December 2020, para. 61; Jadhav (India v. Pakistan), Judgment, ICJ Reports 2019 (II), pp. 437-438, para. 71; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004 (I), p. 48, para. 83; Golder v. the United Kingdom, 21 February 1975, para. 29, Series A, No. 18; ibid., Separate Opinion of Judge Zekia; Ringeisen v. Austria, 16 July 1971, Separate Opinion of Judge Verdross, Series A, No. 13. 99

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Court have regularly referred to the Vienna Convention provisions in the interpretation of provisions of the Rome Statute 103. The Rome Statute has its own special rule on interpretation: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.” 104 The test is familiar to criminal justice in most domestic systems and was applied in post-Second World War prosecutions for crimes against humanity and war crimes 105. An early ruling of a Trial Chamber of the International Criminal Tribunal for the former   Situation in Afghanistan (ICC-02/17), Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza to the Majority’s decision dismissing as inadmissible the victims’ appeals against the decision rejecting the authorisation of an investigation into the situation in Afghanistan, 9 March 2020, para. 14; Situation in Afghanistan (ICC-02/17), Dissenting Opinion to the majority’s oral ruling of 5 December 2019 denying victims’ standing to appeal, 5 December 2019, paras. 14, 18; Situation in Bangladesh/Myanmar (ICC-01/19), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 55; Prosecutor v. Bemba (ICC-01/05), Concurring Separate Opinion of Judge Eboe-Osuji, 14 June 2018, paras. 111-112; Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Sentence Pursuant to Article 76 of the Statute, 22 March 2017, para. 40. 104  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 22 (2). 105   United States v. Alstötter et al. (“The Justice case”), Opinion and Judgment, 3-4 December 1947, (1949) 3 TWC 954, at p. 982; United States v. von Weizsaecker et al. (“The Ministries case”), Dissenting Opinion of Judge Powers, (1949) 14 TWC 871, p. 878. For discussion of the principle and its application in international criminal justice, see Joseph Powderly, Judges and the Making of International Law, Leiden: Brill, Nijhoff, 2020, pp. 526-539. 103

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Yugoslavia described the canon of strict construction of penal statutes as “a general rule which has stood the test of time” 106. The text of Article 22 of the Rome Statute affirms that this rule of interpretation applies only to the definitions of crimes 107. Some judges have suggested a broader application of the principle of strict construction, applying it to “any legal provision restrictive of the rights of a defendant” 108, to determination of sentence 109, and to “substantive criminal law provisions” such as Article 28 on superior responsibility 110 and “the definition of criminal responsibility” 111. The rule of strict construction is repeated in the Elements of Crimes with respect to crimes against humanity: “Since Article 7 pertains to international criminal law, its provisions, consistent with Article 22, must be strictly construed, taking into account that crimes against humanity as defined in Article 7   Prosecutor v. Delalić et al. (IT-96-21-T), Judgment, 14 November 1998, para. 408.   Prosecutor v. Bemba et al. (ICC-01/05-01/13) Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido Against the Decision of Trial Chamber VII entitled “Judgment Pursuant to Article 74 of the Statute”, 8 March 2018, para. 1385. 108   Prosecutor v. Bashir (ICC-02/05-01/09), Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, 6 May 2019, para. 38. 109   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Separate Opinion of Judge Raul C. Pangalangan, 22 March 2017, para. 12. 110   Prosecutor v. Bemba (ICC-01/05-01/08), Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, 8 June 2018, paras. 46, 56 111   Prosecutor v. Ngudjolo (ICC-01/04-02/12), Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, para. 18, fn. 28. Cited with approval in Prosecutor v. Bashir (ICC-02/05-01/09), Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, 6 May 2019, para. 38, fn. 40.

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are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognised by the principal legal systems of the world.” 112 The principle of strict construction set out in Article 22 (2) of the Rome Statute has been described by one judge as an “override” of “the conventional methods of treaty interpretation, as defined in the Vienna Convention on the Law of Treaties, particularly the teleological method” 113. But opinions are divided, and another member of the International Criminal Court has been dismissive of the significance of Article 22 (2), proposing an interpretation of crimes against humanity “that is more fit for purpose, in light of the context, object and purpose of the Rome Statute. That, after all, is the cardinal principle of treaty interpretation as codified under Article 31 of the Vienna Convention on the Law of Treaties” 114. Judge Eboe-Osuji explained further that “[t] he rule of treaty interpretation codified in Article 31 of the Vienna Convention amply justifies the purposive or teleological interpretation in appropriate cases, in order to avoid miscarriage of injustice [sic]” 115. He went on to consider principles of interpretation included in the Vienna Convention as well as some that are not, such as the rule against a statutory interpretation that would lead to an absurd result 116. He argued for a “broad and  Elements of Crimes, ICC-ASP/1/3 and Corr.1, part II.B, Crimes Against Humanity, Introduction, para. 1. 113   Prosecutor v. Ngudjolo (ICC-01/04-02/12), Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, para. 18. 114   Prosecutor v. Ruto et al. (ICC-01/09-01/11), Decision on Defence Applications for Judgments of Acquittal (Reasons of Judge Eboe-Osuji), 5 April 2016, para. 303. 115   Ibid., para. 305. 116   Ibid., paras. 308-314. 112

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liberal construction to maximise protection of beneficiaries” 117. There is no similar provision in the statutes of other international and internationalised tribunals, despite the example set in the Rome Statute. Judge Van den Wyngaert suggested that “[b]y including this principle in Part III of the Statute, the drafters wanted to make sure that the Court could not engage in the kind of ‘judicial creativity’ of which other jurisdictions may at times have been suspected” 118. When the Rome Statute was adopted in July 1998, the ad hoc tribunals had issued relatively few decisions. However, rulings on such issues as the defence of duress and the issuance of orders to States to produce documents despite their claims that this threatened their national security provoked some adjustments of the final text 119. Moreover, the expansive interpretation of the definitions of crimes in the Statute of the International Criminal Tribunal for the former Yugoslavia, in Tadić 120, may very well have provoked concerns about activist judges. The Rome Statute endorsed the views of the Appeals Chamber on the scope of crimes against   Ibid., para. 328.   Prosecutor v. Ngudjolo (ICC-01/04-02/12), Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, para. 19. Cited with approval in Prosecutor v. Bashir (ICC-02/05-01/09), Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, 6 May 2019, para. 38, fn. 40. 119  Article 31 (1) (d) on the defence of duress in effect overruled Prosecutor v. Erdemović (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997; Article 72 on national security information was a reaction to Prosecutor v. Blaškić (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997. 120   Prosecutor v. Tadić (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. 117 118

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humanity and war crimes but in adopting Article 22 (2) it seemed to be saying “don’t let this happen again”. The jurisprudence of the ad hoc tribunals has, generally, accorded little significance to the principle of strict construction 121. The statutes of the ad hoc tribunals are annexes to Security Council resolutions. However, judgments have held them to be analogous to treaties, with the consequence being the application of the principles of interpretation in the Vienna Convention 122. Although it did not cite the Vienna Convention, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia said that “[t]he first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur” 123. The 1994 Yearbook of the International Criminal Tribunal for the former Yugoslavia observed that “[i]n drafting the rules, the judges of the Tribunal tried . . . to strike a balance between the strictly   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 73. See also Prosecutor v. Erdemović (IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 49; Prosecutor v. Kayishema et al. (ICTR95-1-T), Judgment, 21 May 1999, para. 103; Prosecutor v. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 319; Prosecutor v. Rutaganda (ICTR-96-3), Judgment, 6 December 1999, para. 51; Prosecutor v. Musema (ICTR96-13), Judgment, 27 January 2000, para. 155. 122   Prosecutor v. Kanyabashi (ICTR-96-15-A), Dissenting Opinion of Judge Shahabuddeen, 3 June 1999, p. 21; Kanyabashi (ICTR-96-15-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 15; Prosecutor v. Nsengiyumva (ICTR-96-12-A), Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para. 14; Prosecutor v. Tadić (IT-94-1-T), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 18. 123   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 282. 121

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constructionist and the teleological approaches in the interpretation of its Statute” 124. Writing about the rule of strict construction, Judge Shahabuddeen of the International Criminal Tribunal for the former Yugoslavia said the rule of strict construction might only become applicable where there was doubt about the construction of a specific provision. He thought this “an unlikely proposition” 125. Arguably, some of the broad interpretations of the definitions of crimes in the statutes of the ad hoc tribunals, such as the “interpretative expansion of one of the elements of the notion of genocide” 126, the enlargement of “laws or customs of war” so as to encompass crimes committed in non-international armed conflict 127 and the invention of the “joint criminal enterprise” theory of liability 128, would be impermissible were Article 22 (2) of the Rome Statute and the rule that it enshrines to be applied. 2.1.2.  Customary international law Customary law is an important source of international criminal law, frequently invoked by international criminal tribunals as well as by national courts. For some   Yearbook of the International Criminal Tribunal for the Former Yugoslavia 1994, The Hague: United Nations Publications, 1994, para. 53. 125   Prosecutor v. Hadžihasanović (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Separate Opinion of Judge Shahabuddeen, 16 July 2003, para. 1.2. 126  The words are those of the Darfur Commission (Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, S/2005/60, para. 501), with reference to Prosecutor v. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998. 127   Prosecutor v. Tadić (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 137. 128   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 193. 124

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branches of international law, customary law precedes codification. However, that has not been the case with respect to international criminal law. There is no evidence that those who first conceived of international criminal justice institutions, at the Paris Peace Conference in 1919 and, later, at the London Conference in 1945, gave consideration to customary law or actually thought they were codifying it. In the preface to the published proceedings of the London Conference, Robert Jackson referred to customary law when he criticised the Soviet position: “While the Soviet authorities accept the reality and binding force of international law in general, they do not submit themselves to the general mass of customary law deduced from the practice of western states.” 129 Writing to President Truman before the Conference began, Jackson seemed unconcerned with custom. “I am not disturbed by the lack of precedent for the inquiry we propose to conduct”, he wrote, explaining that “every custom has its origin in some single act” and that “we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law” 130. The head of the UN War Crimes Commission, Lord Wright 131, wrote that “[i]nternational Law is a product of natural law, that is, it has grown and developed from the workings of the moral impulses and needs of mankind by a sort of instinctive growth, as well as by edicts or decrees or authoritative pronouncements.  “Preface”, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington, DC: US Government Printing Office, 1949, pp. v-xii, at p. vi. 130  “Report to the President by Mr. Justice Jackson, June 6, 1945”, in ibid., pp. 42-54, at pp. 51-52. 131  Robert Alderson Wright, “Introductory chapter”, in History of the United Nations War Crimes Commission and the Development of the Laws of War, London: His Majesty’s Stationary Office, 1948, pp. 1-23, at p. 8. 129

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In this it resembles all customary law”. These statements manifest some rather formal acknowledgement of “customary law” but they also reveal a complete misunderstanding of the concept. One area where there was some evidence of “custom” at the time of the London Conference was the war crimes category, where “laws and customs of war” had been recognised and codified for many decades. The Charter of the International Military Tribunal provided for the prosecution of “war crimes” that were defined as “violations of the laws and customs of war”. A brief enumeration of war crimes was provided, prefaced with the words “[s]uch violations shall include, but not be limited to . . .” 132. But there was no treaty to specify what those unenumerated crimes might be, and nothing to indicate the appropriate penalty. As for the procedural and evidentiary rules to be adopted, a British proposal that the Charter of the Tribunal contemplate the admissibility of “evidentiary materials and all such other evidence as is customarily received by international or military tribunals” was not taken up 133. At Nuremberg, the issue of custom arose when the defendants challenged the legality of the charge of crimes against peace. The judgment dismissed the objection not by contending that the waging of aggressive war was a crime under customary law, for which there could not be much compelling evidence, but by instead replying that “the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Article 6 (b). 133  “Amendments Proposed by the United Kingdom, 28 June 1945”, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington, DC: US Government Printing Office, 1949, pp. 86-88, at p. 88; “Minutes of Conference Session of 29 June 1945”, in ibid., pp. 97-118, at p. 101. 132

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unjust if his wrong were allowed to go unpunished” 134. The judgment explained that “international law is not the product of an international legislature, and that such international agreements as the [Kellogg-Briand] Pact have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world” 135. There were references in some of the other postSecond World War national proceedings to customary international law with respect to certain war crimes, such as the killing of prisoners of war 136. The reported cases suggest that judges at the time viewed “customary” law as something akin to the common law applied in English courts. In the Justice case, for example, the American Military Tribunal spoke of “the substantive rules of common international law” 137. Customary international law was regularly invoked in judgments of the ad hoc tribunals for the former Yugoslavia and Rwanda. The Secretary-General’s commentary to the draft statute for the International Criminal Tribunal for the former Yugoslavia stated that the subject-matter jurisdiction provisions were limited to offences that were “beyond any doubt part of customary law so that the problem of adherence of some but not   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 219. 135   Ibid., p. 221. 136   United Kingdom v. Amberger et al. (“Drierwalde case”), (1947) 1 LRTWC 81 (British Military Tribunal), at pp. 86; United States v. Masuda et al. (“Jaluit Atoll case”), (1947) 1 LRTWC 71 (US Military Commission), at p. 80. 137   United States v. Alstötter et al., Opinion and Judgment, 3-4 December 1947, (1951) 3 TWC 954, at p. 970. 134

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all States to specific conventions does not arise” 138. Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia was derived from the provision on the laws and customs of war in the Charter of the International Military Tribunal. Unlike the Nuremberg judges, who had made no real attempt to analyse the notion of “customs of war”, judges of the Yugoslavia Tribunal treated the reference to “customs” as an invitation to identify uncodified war crimes. The Appeals Chamber set out the “Tadić conditions” whereby it was necessary to show not only that a prohibition was customary in nature but that it was also recognised as entailing individual criminal responsibility 139. Applying these criteria, judges found that Article 3 included the war crime of “terrorising civilians”, for example 140. But one judge of the Appeals Chamber noted that no such crime was included in the Rome Statute: “If indeed this crime was beyond doubt part of customary international law, in 1998 (!) states would undoubtedly have included it in the relevant provisions of the Statute or in their domestic legislation implementing the Statute” 141. Sometimes judges have seemed to equate customary international law with judicial pronouncements in the decisions of national courts and tribunals following the Second World War. In developing its approach to liability for participation in a joint criminal enterprise, the Appeals Chamber of the International Criminal  Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704 (1993), para. 34. 139   Prosecutor v. Tadić (IT-94-1-AR72), Separate Declaration of Judge J. Deschênes on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 94. 140   Prosecutor v. Galić (IT-98-29-T), Judgment and Opinion, 5 December 2003, para. 132. 141   Prosecutor v. Galić (IT-98-29-A), Separate and Partially Dissenting Opinion of Judge Schomburg, 30 November 2006, para. 20 (internal references omitted). 138

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Tribunal for the former Yugoslavia purportedly turned to customary law for inspiration, although arguably it was in fact interpreting and applying the text in its Statute governing participation in crimes. The Appeals Chamber said that custom could be discerned “chiefly [from] case law” 142. It proceeded to analyse the judgments of British, Canadian, American and Italian national courts, most of them military tribunals, concluding that “the notion of common design as a form of accomplice liability is firmly established in customary international law” 143. Such references were apparently premised on the assumption that there was something “international” about such prosecutions. Yet the courts of the victors had prosecuted enemy prisoners for violations of the laws and customs of war long before there was any notion of international criminal law. When the Prosecutor relied upon post-Second World War jurisprudence as evidence of customary international law, some judges initially raised their eyebrows about the “questionable international character of such tribunals” 144, although at the London Conference Robert Jackson made the point that an international tribunal was hardly necessary for the prosecution of violations of the laws and customs of war. “We have evidence as to nearly every one of these prisoners that we have that they violated the laws and customs of land warfare against American soldiers, and therefore we can put them on trial before an American military tribunal within a month for ordering the slaughter of American prisoners of war”, he said. “We don’t need an international tribunal for that” 145.   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 194.   Ibid., paras. 195-220. 144   Prosecutor v. Erdemović (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, paras. 52-55. 145  “Minutes of Conference Session of July 23, 1945”, in Report of Robert H. Jackson, United States Representative to the 142 143

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Commentators have noted the nebulous methodology employed by the international criminal tribunals in the identification of custom. As Hitomi Takemura has observed, “it is extremely difficult to verify the exact method for identifying rules of customary international law or the distinctive features of the application of the two-element approach” 146. A degree of disregard for the two-element approach was formally promoted by human rights law scholars in the 1980s 147, and their approach appears to have migrated to the field of international criminal law as it revived during the 1990s 148. In his report to the International Law Commission on the identification of customary international law, Special Rapporteur Michael Wood gave examples where the International Criminal Tribunal for the former Yugoslavia showed “willingness to recognise that a rule of customary international law has emerged even where the two elements (in particular State practice) were not firmly established” 149. Wood rejected the suggestion that “customary international criminal law” was in some way different from customary international law in general International Conference on Military Trials, Washington, DC: US Government Printing Office, 1949, pp. 328-347, at p. 331. 146   Hitomi Takemura, “Inconvenient Truths about the Identification of Customary International Law in International Criminal Law”, (2019) 62 Japanese Yearbook of International Law 312, at p. 316. 147  Oscar Schachter, “International Law in Theory and Practice: General Course in Public International Law”, (1982) 178-V Recueil des cours 21; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford: Oxford University Press, 1989. 148   Yudan Tan, “The Identification of Customary Rules in International Criminal Law”, (2018) 34 Utrecht Journal of International and European Law 92, at p. 99. 149   First Report on Formation and Evidence of Customary International Law by Michael Wood, Special Rapporteur, A/CN.4/663, para. 70. William A. Schabas - 978-90-04-52150-6

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in terms of the elements necessary to establish custom. He invoked “the unity of international law”, saying “it is neither helpful nor in accordance with principle, for the purposes of the present topic, to break the law up into separate specialist fields” 150. In this context, he cited a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia that stated “principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law” 151. Wood made similar observations about the case law of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers of the Courts of Cambodia and the Special Tribunal for Lebanon 152. Wood found some cases where international criminal tribunals acknowledged the two-element requirement, citing authorities like the Continental Shelf cases of the International Court of Justice. But upon inspection of the decisions, the holdings were generally quite perfunctory and the analysis rather superficial. For example, in Hadžihasanović, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia addressed whether the doctrine of command  Formation and Evidence of Customary International Law, Note by Michael Wood, Special Rapporteur, A/CN.4/653, para. 22. 151   First Report on Formation and Evidence of Customary International Law by Michael Wood, Special Rapporteur, A/CN.4/663, para. 70, citing Prosecutor v. Kupreškic (IT-95-16-T), Judgment, 14 January 2000, para. 527. 152   Ibid., paras. 71-76. 150

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responsibility as a mode of liability was recognised in customary international law with respect to non-international armed conflict. Wood noted that the Appeals Chamber acknowledged the need to establish both elements, State practice and opinio juris. In reality, however, it premised its ruling not on establishing evidence of both elements but on the deduction that “where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle”. According to the Appeals Chamber, “[i]t is difficult to see why the concept would not equally apply to breaches of the same prohibitions when committed in the course of an internal armed conflict” 153. The Rome Statute, complemented by the Elements of Crimes and the Rules of Procedure and Evidence, provides a highly detailed codification by comparison with all of the temporary or ad hoc tribunals. This probably explains why, coupled with the jurisdictional prohibition on prosecution of crimes perpetrated before its entry into force, there is relatively infrequent reference to customary law at the International Criminal Court 154. Article 21 (1) (b) of the Rome Statute requires the Court to apply “where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”. The war crimes provision refers   Prosecutor v. Hadžihasanović et al. (IT-01-47-AR72), Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, paras. 12-13. 154  Larissa van den Herik, “The Decline of Customary International Law as a Source of International Criminal Law”, in Curtis A. Bradley (ed.), Custom’s Future: International Law in a Changing World, Cambridge: Cambridge University Press, 2016, pp. 230-252. 153

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to “the established framework of international law” 155. Undoubtedly these formulations encompass customary international law 156. According to the Appeals Chamber, principles drawn from customary law may be invoked so as to add to the elements of a particular war crime 157. Judges of the International Criminal Court have also referred to customary international law for guidance in interpreting provisions of the Statute 158, given that “this would have been the legal framework that the drafters had in mind when they were negotiating the relevant provisions” 159. The Appeals Chamber held that Article 27 (2) of the Rome Statute “reflects the status of customary international law” to the extent that it excludes head of State immunity before international criminal tribunals 160. In support it relied upon the provision in the Charter of the International Military Tribunal that deals with the defence of official capacity, the General  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 (2) (b), 8 (2) (e). 156   Prosecutor v. Bemba (ICC-01/05-01/08), Judgment Pursuant to Article 74 of the Statute, 21 March 2016, para. 71. Also Margaret deGuzman, “Article 21”, in Otto Triffterer and Kai Ambos (eds.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 4th ed., Munich: C. H. Beck / Baden-Baden: Nomos / Oxford: Hart, 2021, pp. 1128-1147, at pp. 1137-1140. 157   Prosecutor v. Ntaganda (ICC-01/04-02/06), Judgment on the appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, 15 June 2017, paras. 53-55. 158   Prosecutor v. Bashir (ICC-02/05-01/09), Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, para. 98. 159   Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 55. 160   Prosecutor v. Bashir (ICC-02/05-01/09), Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, para. 98.

155

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Assembly resolution confirming the Nuremberg principles and texts in the Statutes of the ad hoc tribunals modelled on these texts 161. The Chamber blurred a significant distinction: Article 27 (1), not Article 27 (2), is comparable to the provisions that it cited. It did not explain why the Rome Statute contains two paragraphs whereas the earlier instruments had only one. If paragraph Article 27 (2) is to be given any autonomous meaning, it seems it must be understood as overriding an existing norm of international law that prevents the exercise of jurisdiction by treaty-based international criminal courts over the heads of State of a non-party State. Assessing whether Article 12 (2) of the Rome Statute governing the territorial jurisdiction of the Court applies to cross-border offences, a Pre-Trial Chamber of the International Criminal Court pointed to widespread State practice in the form of applicable domestic legislation. As for opinio juris, the Chamber said it was “safe to assume” the relevant States considered that their legislation was consistent with international law. The Pre-Trial Chamber concluded that “under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory” 162. Although it would be imprecise to describe the Rome Statute as a codification of customary international law, it nevertheless constitutes an extremely important consensus reached by the vast majority of States about definitions of crimes as well as such matters as principles of criminal liability, procedure, fundamental rights of the 161 162

  Ibid., paras. 103-109.   Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 58. William A. Schabas - 978-90-04-52150-6

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accused and appropriate penalties. No serious discussion of custom can disregard the Rome Statute. However, other international criminal tribunals have taken an ambivalent attitude to the Rome Statute as an indicator of custom, invoking it when this seemed to confirm their own views and disregarding it when it did not. In an important ruling issued after the adoption of the Rome Statute but before it entered into force, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia spoke of its “significant legal value”, explaining that “[t]he Statute was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the Sixth Committee of the United Nations General Assembly. This shows that that text is supported by a great number of States and may be taken to express the legal position i.e. opinio iuris of those States” 163. The Tribunal was making the very reasonable observation that the provisions of the Rome Statute could be viewed as useful evidence of custom. But subsequently the Tribunal highlighted some differences between the Rome Statute provisions and the law it was applying. It contended that the Court was fundamentally statutory in nature, confined to the limits put on its jurisdiction by States, whereas the International Criminal Tribunal had greater freedom to apply customary international law. For example, Article 7 (2) (a) of the Rome Statute defines the contextual element of crimes against humanity, specifying that the attack on a civilian population must be pursuant to a “State or organisational policy”. The Tribunal’s Appeals Chamber took the view that there is no requirement of a State or other policy with respect to crimes against humanity 164. Rather cavalierly, and 163 164

  Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 223.   Prosecutor v. Kunarac et al. (IT-96-23 and IT-96-23/1-A), Judgment, 12 June 2002, fn. 114. William A. Schabas - 978-90-04-52150-6

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without even acknowledging Article 7 (2) (a) of the Rome Statute, the Appeals Chamber of the Yugoslavia Tribunal said “[t]here was nothing . . . in customary law international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes”. In a lengthy footnote, it provided references from other international criminal law sources to support the holding, although, on closer examination, they do not actually bolster its conclusions 165. When it rejected the Rome Statute policy requirement for crimes against humanity, the Appeals Chamber referred to one of its earlier rulings where a similar issue arose with respect to genocide. The Jelisić saga began with a strange obiter dictum of a Trial Chamber of the Yugoslavia Tribunal that claimed genocide could be committed by a single individual, acting alone 166. Suffice it to say that there has never been a conviction of an  For example, the Appeals Chamber decision refers to the 1954 draft of the Code of Offences Against the Peace and Security of Mankind, adopted by the International Law Commission. The Commission had voted to eliminate the nexus with armed conflict (A/CN.4/SR.267, para. 59) but then realised that it needed some contextual element to distinguish crimes against humanity from ordinary crimes. It adopted the following: “Inhuman acts such as murder, extermination, enslavement, deportation or persecution, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities”. Draft Code of Offences Against the Peace and Security of Mankind, in Yearbook . . . 1954, Vol. II, p. 150 (emphasis added). Obviously, the Commission incorporated the State policy nexus rather than eliminate it, contrary to the implication of the Appeals Chamber. There are also references to decisions like that of the International Military Tribunal where State policy was so central to the evidence that the issue was in fact never really considered. 166   Prosecutor v. Jelisić (IT-95-10-T), Judgment, 14 December 1999, para. 100. 165

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individual for committing the crime of genocide acting alone. It raises speculation about interpretation of crimes to a level of absurdity, rather like questioning whether the International Criminal court can exercise jurisdiction ratione personae over extraterrestrial beings. The Preparatory Commission of the International Criminal Court, then in the course of finalising the Elements of Crimes, promptly reacted to the Trial Chamber’s creativity by introducing a new element for the crime of genocide: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” But the Appeals Chamber upheld the Trial Chamber without commenting on what amounted to a policy element introduced by the International Criminal Court’s Preparatory Commission in the Elements of Crimes 167. Subsequently, the Appeals Chamber of the Yugoslavia Tribunal described the Elements of Crimes as “not binding rules, but only means of interpretation”, and said that a requirement that genocidal conduct be part of a widespread or systematic attack is “not mandated by customary international law” 168. On the other hand, judges of the International Criminal Court have upheld the “manifest pattern” requirement of the Elements as being consistent with the definition of the crime in Article 6 of the Rome Statute 169. The debate about whether evidence of a policy is a requirement of both genocide and crimes against humanity as a matter of customary law remains unre  Prosecutor v. Jelisić (IT-95-10-A), Judgment, 5 July 2001, para. 48.   Prosecutor v. Krstić (IT-98-33-A), Judgment, 19 April 2004, para. 224; Prosecutor v. Popović et al. (IT-05-88-A), Judgment, 30 January 2015, para. 436. 169   Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, paras. 132133. 167 168

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solved. Judges at the International Criminal Tribunal for the former Yugoslavia reject this whereas those at the International Criminal Court, applying the Rome Statute and the Elements of Crimes, have upheld it. Technically, in the case of genocide the argument might well be framed as one of authoritative interpretation rather than customary international law. Be that as it may, surely the text of the Rome Statute and the Elements of Crimes provide strong evidence of customary law. Professor Claus Kreβ has argued that the contextual contribution to the Elements of Crimes should be viewed as evidence of the opinio juris of States and therefore a compelling factor in the interpretation of the definition of genocide 170. With the closing of the Yugoslavia Tribunal, it might be thought that this is now a theoretical dispute between the two institutions. But whether or not there is a policy requirement with respect to genocide and crimes against humanity is a question that may also arise in the context of domestic prosecutions and in determinations of refugee status as well as in inter-State litigation. Some domestic legislation incorporating international crimes refers explicitly to customary international law. For example, Canadian law provides for the prosecution of genocide, crimes against humanity and war crimes “according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations” 171. Legislation enacted by Kosovo’s parliament in respect to the Kosovo Specialist Chambers provides for jurisdiction over crimes against   Claus Kreβ, “The ICC’s First Encounter with the Crime of Genocide, The Case Against Al Bashir”, in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford: Oxford University Press, 2016, pp. 669-704, at pp. 676-679. 171  Canada, Crimes Against Humanity and War Crimes Act, S.C. 2000, ch. 24, ss. 4 (3), 6 (3). 170

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humanity and war crimes under customary international law, although the statute specifies what these terms mean using definitions modelled on provisions of the Rome Statute 172. 2.1.3.  General principles of law General principles of law is the third of the principal sources of international law set out in Article 38 (1) of the Statute of the International Court of Justice. The Special Rapporteur of the International Law Commission on general principles of law has said that they are of particular importance in “certain specialised fields”, of which international criminal law is one 173. Another member of the Commission, Charles Jalloh, has said that “general principles derived from national legal systems around the world were playing a crucial role in the development of international criminal law” 174. The post-Second World War tribunals invoked what was called “the municipal law of civilised nations” 175. Within international criminal law, the most explicit reference on this is probably the reference in the SecretaryGeneral’s report to the Security Council on the draft statute of the Yugoslavia Tribunal. Explaining that many important details of the law had not been specifically addressed in the proposed text, the Secretary-General said that the Tribunal would “have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law   Kosovo, Law No. 05/L-053 on Special Chambers and Specialist Prosecutor’s Office, Articles 3 (2) (d), 12, 13, 14. 173  A/CN.4/SR.3489, p. 12. 174  A/CN.4/SR.3491, p. 5. 175   United States v. List et al. (“Hostage case”), Opinion and Judgment of Military Tribunal V, 19 February 1948, (1950) 11 TWC 1229, pp. 1235-1236. 172

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recognised by all nations” 176. In an early case, judges of the Appeals Chamber referred to the Secretary-General’s report and the relevant provision of the Statute of the International Court of Justice after failing to identify an applicable rule on the admissibility of a defence of duress in the post-Second World War precedents. They undertook “a survey of those jurisdictions whose jurisprudence is, as a practical matter, accessible to us in an effort to discern a general trend, policy or principle” 177. The International Law Commission relied upon “general principles” in preparing the draft Code of Crimes Against the Peace and Security of Mankind, describing “a number of important general principles concerning individual criminal responsibility” 178 and general principles with respect to punishment 179. Article 14 of the draft Code said that general principles of law would guide courts in determining the admissibility of defences and of mitigating circumstances 180. The Rome Statute provision on applicable law appears to echo the formulation in Article 38 (1) of the Statute of the International Court of Justice, declaring that the International Criminal Court may apply “general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute  Report of the Secretary-General Pursuant to para. (2) of Security Council Resolution 808 (1993), S/25704 (1993), para. 58. 177   Prosecutor v. Erdemović (IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para. 57. 178  Report of the International Law Commission on the Work of its Forty-Eighth Session (6 May-26 July 1996), A/51/10, p. 19; also pp. 20-23, 26. 179   Ibid., p. 23. 180   Ibid., pp. 39, 42. 176

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and with international law and internationally recognised norms and standards”. These words are prefaced with the phrase “[f]ailing that”, confirming that “general principles” are in reality only “auxiliary” 181, “a subsidiary source of law” 182, to be applied as a supplement to the Statute, Elements of Crimes and Rules of Procedure and Evidence, as well as to “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”. The Special Rapporteur on general principles of law of the International Law Commission has described the reference in the Rome Statute as unique in the sense that it was designed to take into account “the special character and considerations of international criminal law” 183. The Rome Statute says that “general principles” are to be derived from “national laws of legal systems of the world”, whereas the Statute of the International Court of Justice uses an archaic reference to “civilised nations”, repeating the words first proposed in 1920 for the Statute of the Permanent Court of International Justice. In modern practice, the two phrases are synonymous. The main difference between the texts would appear to be the exclusive focus of the Rome Statute on principles drawn from national law, whereas the reference in the Statute of the International Court of Justice may also include principles of international law. The methodology in identifying “general principles” is sometimes rather opaque, perhaps because they appear so obvious as to require no effort at justification. The   Prosecutor v. Gbagbo et al. (ICC-02/11-01/15), Dissenting Opinion to the Chamber’s Oral Decision of 15 January 201, 15 January 2019, para. 14. 182   Prosecutor v. Muthuara et al. (ICC-01/09-02/11 OA 4), Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”, 1 May 2012, para. 11. 183   First Report on General Principles of Law by Marcelo Vázquez-Bermúdez, Special Rapporteur, A/CN.4/732, para. 120. 181

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Appeals Chamber of the International Criminal Court said that “those who will be affected by a decision must be provided with an opportunity to present their views and to be heard (audi alteram partem)” was a general principle without citing any authority whatsoever 184. In a separate opinion, Judge Kovács said the maxim ex injuria jus non oritur was “an undisputed general principle of law”, but without any reference 185. Judge Eboe-Osuji said that “the tendency of general principles of law is in the direction of” permitting amendment of an indictment at any stage in the proceedings 186. International criminal law has always operated against a background of rich practice at the national level. Judges of the international criminal tribunals bring with them the baggage of their experience with their national systems and, only more exceptionally, an ecumenical appreciation of other systems with different traditions. Frequently the influence of the “general principles” is not explicit. Yet the attitudes of international judges to procedural questions and the appreciation of evidence is often coloured by their legal origins. This phenomenon seems to be the rationale for Article 36 (8) (a) (i) of the Rome Statute which requires States parties, in the selection of judges, to “take into account the need, within the membership of the Court, for . . . representation of the principal legal systems of the world”. Answering a defence challenge that objected to the exclusively “civil law” profile of a Pre-Trial Chamber, the Presidency noted   Prosecutor v. Yekatom et al. (ICC-01/14-01/18 OA), Judgment on Mr Yekatom’s appeal against Trial Chamber V’s “Decision on the Yekatom Defence’s Admissibility Challenge”, 9 October 2020, ICC-01/14-01/18-678-Conf, 11 February 2021, para. 46. 185   Situation in the State of Palestine (ICC-01/18), Judge Péter Kovács’ Partly Dissenting Opinion, 5 February 2021, para. 281. 186   Prosecutor v. Bemba (ICC-01/05-01/08), Concurring Separate Opinion of Judge Eboe-Osuji, 14 June 2018, para. 99. 184

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that although “the common law system is, undoubtedly, amongst the principal legal systems of the world”, the Statute’s requirement of diversity applied to the election of judges and not the profile of specific chambers 187. The Presidency of the Court says that in establishing the three divisions of the Court, from which the Chambers are drawn, it endeavours to ensure that the major legal systems are represented in each division 188. One judge has referred to “the principal legal systems of the world that exert the most influence on the development of legal norms and processes that apply at the ICC”, identifying these as civil law and common law 189. It is a classification based almost entirely upon procedural and evidentiary issues rather than substantive law. Many “general principles”, especially those with Latin names suggesting they are derived from Roman law, appear to be shared by both systems and probably others as well. 2.1.4.  Peremptory norms (jus cogens) Peremptory norms are sometimes described as a “subset” of customary international law 190 or as a “higher   Prosecutor v. Katanga et al. (ICC-01/04-01/07), Decision Concerning the Request of Mr Germain Katanga of 14 November 2008 for Re-composition of the Bench of Trial Chamber II, 21 November 2008, paras. 8-9. 188  Decision Assigning Judges to Divisions, ICC-Pres-01-15, 13 March 2015. 189   Prosecutor v. Kenyatta et al. (ICC-01/09-02/11), Dissenting Opinion of Judge Eboe-Osuji, 26 November 2013, paras. 45, 188. 190   Nevsun Resources Ltd. v. Araya, 2020 SCC 5, para. 83; Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (1992), p. 715. See also John Tasioulas, “Custom, Jus Cogens, and Human Rights”, in Curtis A. Bradley (ed.), Custom’s Future: International Law in a Changing World, New York: Cambridge University Press, 2016, pp. 95-116, at p. 107.

187

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form of customary international law” 191. The better view is to regard them as a distinct source of international law. The draft Conclusions adopted by the International Law Commission in 2019 explain that “[c]ustomary international law is the most common basis for peremptory norms of general international law (jus cogens)”, but that they may also be derived from “[t]reaty provisions and general principles of law” 192. The Vienna Convention on the Law of Treaties defines a peremptory norm of general international law (jus cogens) as being “accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” 193. According to the International Law Commission, jus cogens norms “reflect and protect fundamental values of the international community” 194. The International Law Commission traced the origins of such “fundamental values of the international community” to the advisory opinion of the International Court of Justice on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide with its references to “moral law” and “the conscience of mankind” 195. The Court had taken those formulations from the preamble to the 1946 General Assembly resolution declaring the punishment of the crime of genocide to be “a matter of   Kazemi Estate v. Iran, [2014] 3 SCR 176, para. 151.   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, p. 158. 193  Vienna Convention on the Law of Treaties, (1980) 1155 UNTS 31, Article 53. Also Report of the International Law Commission, Seventy-First Session (29 April-7 June and 8 July-9 August 2019), A/74/10, p. 142. 194   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, p. 150. 195   Ibid., p. 151. 191 192

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international concern” 196. Although jus cogens norms may be associated with various areas of public international law, they are of particular importance in the area of international criminal law. Case law of the international criminal tribunals has undoubtedly contributed to the identification of jus cogens norms. For example, the International Criminal Tribunal for the former Yugoslavia provided one of the first judicial pronouncements on the prohibition of torture as a jus cogens norm 197. A Trial Chamber of the Tribunal stated that “most norms of international humanitarian law” including “those prohibiting war crimes . . . are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overriding character” 198. In 2019 the International Law Commission proposed an exemplary list of jus cogens norms, most of which are very much at the heart of international criminal law as well as the other cognate branches of law that are examined in this course: the prohibitions of aggression, genocide and crimes against humanity, basic rules of international humanitarian law, the prohibitions of racial discrimination and apartheid, slavery and torture 199. The Special Rapporteur of the International Law Commission  The Crime of Genocide, A/RES/96(I). The reference to “moral law” was not in the original draft of the resolution, whose author is thought to have been Raphaël Lemkin: Draft Resolution Relating to the Crime of Genocide, Proposed by the Delegations of Cuba, India and Panama, A/BUR/50. 197   Prosecutor v. Furundžija (IT-95-17/1-T), Judgment, 10 December 1998, paras. 144, 153-157. The only predecessor appears to be a separate opinion of the Inter-American Court of Human Rights: Blake v. Guatemala, Merits, 24 January 1998, Series C, No. 36, Separate Opinion of Judge Cançado Trindade, paras. 15, 25. 198   Prosecutor v. Kupreškić (IT-95-16-T), Judgment, 14 January 2000, para. 520. 199   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, p. 203. The only change to the list proposed 196

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on jus cogens did not find many examples for the application of jus cogens in the area of individual criminal responsibility. He discussed the obligation to prosecute, including the enactment of international crimes within domestic legislation, but acknowledged that any State practice was the consequence of a treaty or customary obligation and identified no special significance to jus cogens 200. A notion resembling jus cogens, although it was not given that label at the time, can be found in the case law of the American military tribunals that sat in the great Nuremberg courtroom. In the Krupp trial, the defendants invoked an agreement between Germany and the Vichy government to justify the use of French prisoners of war in the armaments industry. The American Military Tribunal said such an agreement “was manifestly contra bonus mores and hence void”, and that it was “void under the law of nations” 201. This was jus cogens in its treaty-law dimension, the form in which it is presented in the Vienna Convention on the Law of Treaties. Over time, jus cogens has lost its focus on direct conflicts with other norms of international law. Thus, the consequence of identifying the prohibition of genocide or crimes against humanity as jus cogens is not about invalidating treaties that authorise these acts – there are few examples in modern times – but rather challenging whether its absolute status has the effect of excluding ordinary exceptions, restrictions and limitations. The debate is about such secondary effects respecting norms of jus cogens such as the exercise of jurisdiction, access to justice despite State by the Special Rapporteur was the addition of “racial discrimination”. 200  Third Report on Peremptory Norms of General International Law (jus cogens) by Dire Tladi, Special Rapporteur, A/CN.4/714, paras. 115-120. 201   United States of America v. Krupp et al., Judgment, (1950) 9 TWC 1327, at p. 1395. William A. Schabas - 978-90-04-52150-6

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immunities 202, the obligation to investigate and prosecute 203, statutory limitation 204, amnesty 205 and refoulement to a State where there is a risk of torture 206. John Dugard, writing as an ad hoc judge of the International Court of Justice, has explained that jus cogens norms “are a blend of principle and policy”. According to Professor Dugard, they affirm the high principles of international law, which recognise the most important rights of the international order – such as the right to be free from aggression, genocide, torture and slavery and the right to self-determination; while, on the other hand, they give legal form to the most fundamental policies or goals of the international community – the prohibitions on aggression, genocide, torture and slavery and the advancement of self-determination . . . The fact that   Al-Adsani v. the United Kingdom [GC], No. 35753/97, paras. 61-67, ECHR 2001-XI; Lee M. Caplan, “State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory”, (2003) 97 American Journal of International Law 741. 203  Antonio A. Cançado Trindade, “Enforced Disappearances of Persons as a Violation of jus cogens: The Contribution of the Inter-American Court of Human Rights”, (2012) 81 Nordic Journal of International Law 507. 204   Mocanu et al. v. Romania [GC], Nos. 10865/09, 45888/07 and 32431/08, ECHR 2014-V, Concurring Opinion of Judge Pinto de Albuquerque, joined by Judge Vučinić, para. 5. 205   Marguš v. Croatia, No. 4455/10, para. 74, 13 November 2012; Marguš v. Croatia [GC], No. 4455/10, para. 130, 27 May 2014. 206  Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of Non-Refoulement: Opinion”, in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge: Cambridge University Press, 2003, pp. 87-177; Rights and Guarantees of Children in the Context of Migration and/ or in need of International Protection, Advisory Opinion, OC-21/14, 19 August 2014, para. 227. 202

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norms of jus cogens advance both principle and policy means that they must inevitably play a dominant role in the process of judicial choice 207. An example of this might be found in a recent decision of the Appeals Chamber of the International Criminal Court concerning Jordan’s appeal from a finding of noncompliance for its failure to apprehend the president of Sudan. The Appeals Chamber said the obligation of cooperation related to crimes with “the character and force of jus cogens”, the consequence being that “the duty to cooperate under articles 86 et seq. of the Statute must be interpreted in light of Article 27 (2) of the Statute” 208. Surely this is nothing more than a rhetorical usage of the concept. Either there is an obligation under the Rome Statute or there is not. Obligations under the Statute exist because States have ratified the treaty, not because Articles 6, 7, 8 and 8 bis define crimes that are viewed as jus cogens. In a lengthy separate opinion in the same judgment, four judges of the Appeals Chamber bolstered the jus cogens argument with an extraordinary criticism of the reasoning of the International Court of Justice, reminiscent of the notorious critique of Nicaragua by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadić. In effect, in Jurisdictional Immunities of States, the International Court of Justice had rejected the argument that State immunity was inapplicable to claims relating to the jus cogens prohibition of the laws of armed conflict, such   Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p. 6, Separate Opinion of Judge ad hoc Dugard, para. 10. 208   Prosecutor v. Bashir (ICC-02/05-01/09), Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, para. 123. 207

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as the prohibition of murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour. It reasoned that rules of State immunity, being procedural in nature, do not relate to whether or not the impugned conduct is unlawful and that consequently a conflict with jus cogens norms does not arise 209. A decade earlier, the Grand Chamber of the European Court of Human Rights had adopted a similar position 210. The four judges of the International Criminal Court effectively rejected the reasoning of the International Court of Justice, although their argument was presented as one of distinguishing between an inter-State context and one involving an international tribunal. The separate opinion of the four Appeals Chamber judges endorsed the dissenting opinion of Judge Antonio Cançado Trindade in Jurisdictional Immunities 211. They also gave their blessing to the views of Lord Millet in the Pinochet case 212, although without mentioning that his separate opinion on immunity had been effectively overruled by the International Court of Justice a few years later in the Arrest Warrant case 213.   Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, ICJ Reports 2010, p. 310, para. 93. 210   Al-Adsani v. the United Kingdom [GC], No. 35763/97, § 61, ECHR 2001-XI. 211   Prosecutor v. Bashir (ICC-02/05-01/09), Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, 6 May 2019, paras. 211-218. 212   R. v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [2000] 1 AC 147, per Lord Millet. 213   Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3, para. 61. 209

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2.2.  Jurisdiction and immunities 2.2.1.  Jurisdiction – territorial, personal and universal To the question of whether a State could exercise jurisdiction over foreigners for acts committed outside its territory, Oppenheim said: “No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up under the Law of Nations . . .” 214. Calvo was of the same opinion: “C’est un principe général de droit que les crimes ont toujours un caractère local et sont régis exclusivement par la loi pénal du pays où ils ont été commis et non par celle de l’endroit où ses conséquences peuvent s’étendre” 215. Pirates were the exception, of course, but that was because, according to Oppenheim, “[a] pirate and his vessel lose ipso facto by an act of piracy their national character and the protection of their flag State” 216. Repression of piracy is confined to acts “outside the jurisdiction of any State” 217 and does not therefore, by definition, encroach upon sovereignty. The early publicists of international law had no notion of universal jurisdiction as we understand it today, at least as a matter of customary law. About a century ago, treaties began to provide for prosecution of certain offences on the basis of universal jurisdiction. For example, the 1923 International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications specified that offenders “be amenable” to prosecution by the State where “any of the constitutive elements of the offence, was committed”. Furthermore, “[t]hey shall also  Lassa Oppenheim, International Law, Peace, Vol. I, London: Longmans, 1906, p. 197. 215  Charles Calvo, Le Droit International: Théorie et Pratique, Vol. II, Paris: Guillaumin et al., 1888, p. 426. 216   Ibid., p. 330. 217  United Nations Convention on the Law of the Sea, (1994) 1833 UNTS 3, Article 100. 214

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be amenable, when the laws of the country shall permit it, to the Courts of the Contracting Party whose nationals they are, if they are found in its territories, even if the constitutive elements of the offence were committed outside such territories” 218. The preamble to the draft resolution on genocide submitted to the General Assembly in November 1946 stated that “[w]hereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern” 219. Lemkin had argued the point in his book Axis Rule in Occupied Europe 220. However, the reference did not survive the negotiations and the resolution adopted in December was silent on the subject of universal jurisdiction. Proposals for recognition of universal jurisdiction returned during the drafting of the Genocide Convention but without any progress on this subject. During the debate in the Sixth Committee, the American delegate said that “at that stage of development of international law, it was dangerous to extend the jurisdiction of national courts to include the punishment of offences committed on the territory of other States”, a view with which the Soviet representative agreed. An amendment whereby the Convention would recognise universal jurisdiction was rejected by a vote  International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, (1924) 27 LNTS 214, Article 2. 219   Draft Resolution Relating to the Crime of Genocide, Proposed by the Delegations of Cuba, India and Panama, A/BUR/50, PP 3. 220  Raphaël Lemkin, Axis Rule in Occupied Europe, Washington, DC: Carnegie Endowment, 1944, pp. 93-94. 218

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of 29 to 6, with 10 abstentions 221. Eichmann referred to these debates to support his claim that the Israeli courts were without jurisdiction to prosecute him for crimes perpetrated in Germany and Central and Eastern Europe. The District Court of Jerusalem dismissed the argument, explaining that universal jurisdiction had been recognised since the time of Grotius, and that universal jurisdiction could be derived “from the basic nature of the crime of genocide as a crime of the utmost gravity under international law” 222. Universal jurisdiction over international crimes is recognised by treaties, but these can only be applicable to States parties. The Geneva Conventions are ratified by virtually every State, making the acceptance of universal jurisdiction over grave breaches, committed in international armed conflict, beyond controversy. Several other treaties recognise universal jurisdiction, but they 223 do not enjoy such widespread participation  . For example, the International Convention for the Protection of All Persons from Enforced Disappearance had only sixty-three States parties as of 31 December 2020. The International Court of Justice has never made a definitive pronouncement on the issue of universal jurisdiction over international crimes based upon customary international law rather than a treaty. An opportunity to clarify the situation was aborted when the Democratic Republic of the Congo withdrew its claim against Belgium based upon an unlawful extension of jurisdiction over the crime of inciting genocide. Individual opinions addressed the issue, but this only indicated that there was no consensus.  Sixth Committee, Summary Record of the One Hundredth Meeting, 11 November 1948, Official Records of the General Assembly, 1948, p. 406. 222   Attorney-General (Israel) v. Eichmann, (1968) 36 ILR 5 (DC), at p. 39. 223   See the list in the Second Report on Crimes Against Humanity by Sean D. Murphy, Special Rapporteur, A/CN.4/690, para. 112. 221

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In the most conservative of them, President Gilbert Guillaume wrote that “international law knows only one true case of universal jurisdiction: piracy” 224. State practice confirms a lack of general agreement on the scope of universal jurisdiction. Tanzania, acting on behalf of the Group of African States in the General Assembly, said that while “[m]any African States have expressed approval of the principle of universal jurisdiction on a treaty basis, and existing practice shows that many States establish a jurisdictional link with the commission and punishment of such crimes as genocide, crimes against humanity and war crimes . . . the scope and applicability of the principle of universal jurisdiction outside the context of such treaties and outside such jurisdictional links is unclear and remains yet to be settled or determined” 225. Tanzania voiced the concern of African States about the “ad hoc and arbitrary application” of universal jurisdiction 226. In a 2017 report to the Secretary-General, the United Kingdom said universal jurisdiction had been established “only for a small number of specific crimes, including the most serious international crimes, such as grave breaches of the Geneva Conventions, and crimes such as piracy where there was a significant risk that, if not subject to universal jurisdiction, perpetrators would fall outside the jurisdiction of any State. There was a lack of international consensus on whether a small number of other crimes could be subject to universal jurisdiction” 227. These cautious views need to be juxtaposed with the claim of the International Committee of the Red Cross that 117 States   Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3, Separate Opinion of President Guillaume, para. 12. 225   Scope and Application of the Principle of Universal Jurisdiction, A/63/237/Rev.1, Annex I, para. 2. 226   Ibid., para. 5. 227  A/C.6/72/SR.14, para. 2. Also A/C.6/70/SR.12, para. 89; A/C.6/66/SR.13, para. 24.

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have established some form of universal jurisdiction over serious violations of international humanitarian law, and it says that the number continues to increase 228. The great recent example of prosecution under universal jurisdiction is the trial of Hissène Habré in Senegal 229. It was based upon provisions of the Convention Against Torture. Habré was the former head of State of Chad which could have no objection to Senegal’s exercise of jurisdiction as it had been a party to the Torture Convention since 1995 230. While providing great encouragement to States about the feasibility of prosecution under universal jurisdiction, it does not clarify the legal disputes that exist when only customary law applies. 2.2.2. Immunities The subject of immunities has received enormous attention from international lawyers, although the significance of the issue may be exaggerated. Sometimes, it seems to be presented as one of the dire threats to justice and an unconscionable source of impunity. In reality, only a few individuals have been involved. The paradigm is the attempt to prosecute Kaiser Wilhelm II following the First World War. The fallen German emperor had fled to the Netherlands which, at the time, was a bastion of impunity. Recent decisions have pointed to this as a manifestation of an emerging customary norm denying immunity to heads of State for international crimes. In reality, however, if it is a precedent at all,  The Scope and Application of the Principle of Universal Jurisdiction, A/73/123, para. 35.  Sharon Weill, Kim Thuy Seelinger and Kerstin Bree Carlson (eds.), The President on Trial: Prosecuting Hissène Habré, Oxford: Oxford University Press, 2020; Aminata Touré, La justice sénégalaise et les crimes internationaux aux Tchad: 1982-1990, Dakar: Harmattan, 2021. 230  C.N.195.1995.TREATIES-4.

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it is for the irrelevance of official capacity to the issue of criminal liability. Official capacity is rejected as a defence in the Charter of the International Military Tribunal 231, and in modern-day instruments 232. Head of State immunity is often confused with the defence of official capacity although the two paragraphs in Article 27 of the Rome Statute underscore the significance of the distinction. Article 227 of the Treaty of Versailles recognised the vulnerability of Kaiser Wilhelm to prosecution but it cannot be a precedent on the issue of immunity. Germany ratified the Treaty of Versailles. It agreed to the prosecution of its former emperor. The same might be said of the next effort, this one more successful, to prosecute a former head of State. Admiral Dönitz briefly served as Hitler’s successor until the Third Reich collapsed. He was prosecuted at Nuremberg, but never raised any objection on the ground of immunity. If the State of nationality does not object, the immunity argument evaporates. In the modern period, there have been several examples to prosecute former heads of State or government by the ad hoc tribunals: Jean Kambanda by the International Criminal Tribunal for Rwanda 233, Slobodan Milošević by the International Criminal Tribunal for the former Yugoslavia 234 and Charles Taylor by the Special Court  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Article 7. 232  Statute of the International Criminal Tribunal for the former Yugoslavia, S/RES/827 (1993), Annex, Article 7 (2); Statute of the International Criminal Tribunal for Rwanda, S/RES/ 955 (1994), Annex, Article 6 (2); Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 27 (1). 233   Prosecutor v. Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998. 234   Prosecutor v. Milošević et al. (IT-99-37-PT), Decision on Preliminary Motions, 8 November 2001, paras. 26-34. 231

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for Sierra Leone 235. To the extent that the immunity issue arose, the answer was that the Courts were empowered by the Security Council where issues of one State exercising sovereignty over another were irrelevant. There was no objection from any of the three States concerned. The problem only really presented itself with the International Criminal Court when it sought to prosecute the president of Sudan, given that it was not a party to the Rome Statute. Some decisions by Pre-Trial Chambers of the Court took the view that the Security Council had implicitly waived Bashir’s immunity when it triggered the jurisdiction of the Court 236. The problem was not only the lack of any evidence to suggest such an implication but also the strictly defined limits on the Security Council’s role within the Rome Statute itself. Ultimately, the Appeals Chamber ruled that there was no immunity for a head of State before an international criminal tribunal as a matter of customary international law, a decision that treated Article 27 (2) as a codification of custom rather than as an exception to general international law 237. The ruling would appear to make any head of State liable for prosecution by the Court, regardless of whether the State is a party or not, for crimes committed on the territory of a State party. In 1999 the highest court in the United Kingdom ruled that a former head of State had no immunity before the country’s national justice system 238. Augusto Pinochet, the former dictator of Chile, had been arrested under   Prosecutor v. Taylor (SCSL-2003-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, paras. 43-53. 236   Prosecutor v. Bashir (ICC-02/05-01/09), Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, 9 April 2014, para. 29. 237   Prosecutor v. Bashir (ICC-02/05-01/09), Judgment in the Jordan Referral re Al Bashir Appeal, 6 May 2019. 238   R. v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and 235

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an extradition warrant issued by Spain. But when a similar issue arose at the International Court of Justice, the principle whereby the courts of one country cannot exercise jurisdiction over the head of State of another country, even when no longer in power, was affirmed 239. The argument that such immunity did not apply in the case of international crimes, described as jus cogens, was advanced in a dissenting opinion 240. 2.3.  State responsibility Criminal law is quintessentially concerned with individual responsibility, where the principal penalty is the deprivation of liberty for a fixed period of time. In the words of the International Military Tribunal, “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced” 241. Nevertheless, international criminal law may also be applied to the conduct of organisations, corporations and even States. The Genocide Convention imposes obligations of prevention but also of repression, for example by requiring that States parties to the Convention “enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide” 242. The International Court of Justice has Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17. 239   Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3, para. 58. 240   Ibid., Dissenting Opinion of Judge Van den Wyngaert, para. 28. 241   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 223. 242  Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, Article 5. William A. Schabas - 978-90-04-52150-6

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confirmed that a State may also be found not only to be in breach of specific obligations set out in the Genocide Convention but also to have committed the crime. InterState litigation about responsibility for genocide has been undertaken before the International Court of Justice on the basis of the compromissory clause in Article IX of the 1948 Convention. In ruling on the admissibility of the Bosnia v. Serbia case, the Court said that the reference in Article IX to “the responsibility of a State for genocide or for any of the other acts enumerated in Article III” did not exclude any form of State responsibility 243. There have been several applications filed under Article IX of the Convention, although the Court has yet to hold a State responsible for perpetrating the crime. When individuals are prosecuted for genocide, by national or international tribunals, the familiar concepts of criminal law developed over the centuries will be applied. A finding that a State has committed genocide involves transposing concepts that were developed with respect to the criminal responsibility of individuals. For example, genocide is described as a crime of specific or special intent, or dolus specialis. This is a distinction that might appear in national law with the juxtaposition of involuntary homicide or manslaughter with intentional homicide or murder. When a State expresses its intent to exterminate a racial or ethnic group, through legislation and statements of various kinds, the situation is quite analogous to that of the individual who openly acknowledges his or her purpose. But rarely do either States or individuals make such admissions. In domestic prosecutions, convictions for specific intent crimes based upon only circumstantial evidence are uncommon. Absent direct proof of the intent, doubts about culpability may 243

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be raised by the existence of alternative explanations. So it is with State responsibility for genocide. According to the International Court of Justice, “in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question” 244. Under ordinary criminal law, individuals many only be convicted if there is proof to a high standard. The terminology varies from one national system to another. But it is invariably much higher than standards of proof applied in cases where criminal guilt and its consequences are not at stake. The Rome Statute requires that a conviction be based upon proof “beyond reasonable doubt” 245. A similar approach is required in the area of State responsibility. Ordinarily, judgments will apply a balance of probabilities or preponderance of evidence standard. But, according to the International Court of Justice, “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive” 246, providing “a high level of certainty appropriate to the seriousness of the allegation” 247. The Czech jurist Bohuslav Ečer was a pioneer of international criminal law 248. He served on the United Nations War   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3, para. 148 245  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 66 (3). 246   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3, para. 209, citing Corfu Channel (United Kingdom v. Albania), Judgment, ICJ Reports 1949, p. 4, at p. 17. 247   Ibid., para. 210. 248  Kerstin von Lingen, “Legal Flows: Contributions of Exiled Lawyers to the Concept of ‘Crimes Against Humanity’ During the Second World War”, (2018) 17 Modern Intellectual History 507. 244

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Crimes Commission. After the war, he was named ad hoc judge in the Corfu Channel case. His dissenting opinion is one of the most substantial discussions about evidence in the case law of the International Court of Justice. Ečer described the mining of the Corfu Channel as an “abominable international crime” 249. He spoke of “a presumption in favour of every State, corresponding very nearly to the presumption in favour of the innocence of every individual in municipal law” 250. Citing a range of comparative law authorities in criminal justice, he said extreme caution should be observed where conclusions are based upon presumptions or inferences. The International Law Commission endorsed the notion of “serious breaches of obligations under peremptory norms of general international law” in place of the controversial concept of “State crimes”. Two of the draft articles on State responsibility are devoted to such “serious breaches”. The distinctive feature of the category is its application to “obligations to the international community as a whole”, also known as erga omnes obligations, and for which “all States can be held to have a legal interest in their protection” 251. According to the International Court of Justice, obligations erga omnes “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination” 252. Besides the crime of genocide, the International Law Commission has also identified the prohibition of torture and the “basic rules of international humanitarian law applicable in   Corfu Channel (United Kingdom v. Albania), ICJ Reports 1949, p. 4, Dissenting Opinion of Judge Ečer, p. 115. 250   Ibid., p. 119. 251   Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 3, para. 33. 252   Ibid., para. 34. 249

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armed conflict” as falling within this category 253. The International Law Commission defined a breach as being “serious” if it involves “a gross or systematic failure by the responsible State to fulfil the obligation” 254. Two particular consequences were associated with a serious breach. The first was an obligation on States to “cooperate to bring to an end through lawful means any serious breach”. The second was an obligation not to recognise as lawful a situation created by a serious breach nor to render aid or assistance in maintaining that situation 255. International law also imposes obligations on the “international community” with respect to international crimes. This results from a General Assembly resolution, adopted by consensus on the sixtieth anniversary of the adoption of the Charter of the United Nations. Accordingly, under the heading of the “responsibility to protect”, the international community is required “to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. Moreover, “should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. The resolution makes it clear that such action must be taken through the United Nations and in accordance with the Charter, thereby ruling out unilateral intervention in the name of preventing international crimes 256.  Report of the International Law Commission on the Work of its Fifty-Third Session (23 April-1 June and 2 July10 August 2001), A/56/10, para. 77, Article 40, para. 5. 254   Ibid., Article 40 (2). 255   Ibid., Article 41. 256   2005 World Summit Outcome, A/RES/60/1, para. 139; Responsibility to Protect: Lessons Learned for Prevention, A/73/898-S/2019/463; Fifteenth Anniversary of the Responibility to Protect Populations from Genocide, War Crimes, 253

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2.4.  Use of force There are two important dimensions to the international law dealing with the use of force, one on the level of State responsibility and the other on that of individual criminal responsibility. The emergence of the prohibition on the use of force can be charted with reference to developments in both of these areas. Until the outbreak of the First World War, publicists generally treated the use of force as an appropriate means of settling interState disputes. The adoption of the Kellogg-Briand Pact in 1928 is often signalled as the turning point 257. Actually, the development of the prohibition of the use of force can be traced to the debates within the Commission on Responsibilities in February and March 1919, as international lawyers struggled with the idea of holding Germany and its emperor responsible for starting the First World War. The Commission decided that however desirable such a prohibition, and criminalisation, might be, respect for the principle of legality ruled out imposing individual liability on Kaiser Wilhelm for what would today be called the crime of aggression 258. International law crystallised following the defeat of Nazi Germany. At the San Francisco Conference on 26 June 1945 delegates endorsed a provision in the Charter of the United Nations prohibiting the threat or use of force against the territorial integrity or political independence of any state 259. Several weeks later, on 8 August 1945, Ethnic Cleansing and Crimes Against Humanity, as Enshrined in the 2005 World Summit Outcome, A/HRC/ RES/44/14. 257  Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World, New York: Simon and Shuster, 2017. 258  Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties, reprinted in (1920) 14 American Journal of International Law 95, at p. 120. 259  Charter of the United Nations, Article 2 (4). William A. Schabas - 978-90-04-52150-6

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the London Conference confirmed the international criminality of “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” 260. The following year, judges of the International Military Tribunal said that “[t]o initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole” 261. Nevertheless, the crime of aggression soon proved to be the snag that would impede future developments in international criminal law. In 1954 the General Assembly instructed the International Law Commission to suspend its work on international criminal law pending an agreement on the definition of aggression 262. A Special Committee charged with addressing the issue did not complete its work for two decades 263. Its definition, adopted at the 1974 session of the General Assembly, affirmed that “[a] war of aggression is a crime against international peace. Aggression gives rise to international responsibility” 264. The General Assembly did not, however, immediately proceed to authorise the International Law Commission  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Article 6 (a). 261   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 186. 262  Draft Code of Offences Against the Peace and Security of Mankind, A/RES/897 (IX); Question of Defining Aggression, A/RES/895 (IX). 263   Report of the Special Committee on the Question of Defining Aggression, 11 March-12 April 1974, A/9619. 264   Definition of Aggression, A/RES/3314 (XXX), Annex, Article 5 (2). 260

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to resume its work in the area of international criminal law on the two main projects, a draft Code of Crimes Against the Peace and Security of Mankind and the question of an international criminal jurisdiction. Only in 1981 did the General Assembly instruct the Commission to return to the draft Code and pick up where it had left off in 1954 265. In 1990, without precise instructions from the General Assembly, the Special Rapporteur on the Code produced a supplementary report on the statute of an international criminal court 266. Only weeks after the International Law Commission had completed its session that year, there was a call to establish an international criminal tribunal. It came from an unlikely source. British prime minister Margaret Thatcher and United States president George Bush, both evoking the precedent of the Nuremberg trials, broached the idea of an international tribunal to deal with the Iraqi invasion of Kuwait, one that might address such crimes as aggression and hostage-taking 267. There are reports that the idea originated in the United States  Draft Code of Offences Against the Peace and Security of Mankind, A/RES/36/106.  Eighth Report on the Draft Code of Crimes Against the Peace and Security of Mankind by Doudou Thiam, Special Rapporteur, A/CN.4/430/Add.l; Report of the International Law Commission on the Work of its Forty-Second Session (1 May-20 July 1990), A/45/10, paras. 93-157. 267  For Thatcher, see her television interview of 1 September 1990: (1990) 61 British Yearbook of International Law 602; Marc Weller, “When Saddam is brought to court . . .”, The Times, 3 September 1990. For Bush, see: US Department of State Dispatch, 22 October 1990, Vol. I (8), p. 205; US Department of State Dispatch, 12 November 1990, Vol. I (11), p. 260. See also Louis Rene Beres, “Iraqi Crimes and International Law: The Imperative to Punish”, (1993) 21 Denver Journal of International Law & Policy 335; Louis Rene Beres, “Toward Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and Jurisdictional Choices”, (1991) 22 California Western International Law Journal 127. 265 266

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Department of the Army 268. Pentagon lawyers prepared a report documenting crimes allegedly committed by the Iraqi president for a possible trial. The matter was “quietly dropped after the American-led coalition won the Persian Gulf war without capturing Mr. Hussein” 269. As consideration of the question proceeded within the International Law Commission, attention focussed on an issue that had not existed at Nuremberg but that would prove to be quite central to the establishment of an international criminal court with jurisdiction over the crime of aggression: the relationship with the Security Council, mandated by Article 39 of the Charter of the United Nations with determining the existence of an act of aggression and adopting measures to address it 270. The crime of aggression was not included in the statutes of the ad hoc tribunals established by the Security Council in 1993 and 1994. The final report to the General Assembly by the International Law Commission on the proposed permanent court recommended that its subject-matter jurisdiction consist of four international crimes, including aggression, although it noted that “[t] he position of aggression as a crime is different, not least because of the special responsibilities of the Security Council under Chapter VII of the Charter of the United Nations” 271. The Commission’s report said it would seem “retrogressive to exclude responsibility of aggression (in particular, acts directly associated with the waging of a war of aggression) 50 years after Nürnberg. On the  Marc Weller, “When Saddam is brought to court . . .”, The Times, 3 September 1990. 269  Elaine Sciolino, “US Names Figures it Wants Charged with War Crimes”, New York Times, 17 December 1992, p. 1 270   Report of the International Law Commission on the Work of its Forty-Third Session (29 April-19 July 1991), A/46/10, paras. 153-165; Report of the International Law Commission on the Work of its Forty-Fourth Session (4 May-24 July 1992), A/47/10, paras. 81-87. 271   Yearbook . . . 1994, Vol. II (Part 2), p. 38. 268

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other hand the difficulties of definition and application, combined with the Council’s special responsibilities under Chapter VII of the Charter, mean that special provision should be made to ensure that prosecutions are brought for aggression only if the Council first determines that the State in question has committed aggression in circumstances involving the crime of aggression which is the subject of the charge” 272. The deference to the Security Council proposed by the International Law Commission proved controversial. Part of the attraction of the international criminal court project for many States was that it provided an opportunity to encroach upon areas that had hitherto been reserved to the Security Council. Leaving the Council with the final authority to rule on whether or not a crime had taken place was not only incompatible with independent and impartial justice; it would also ensure that the permanent members could immunise themselves and their close friends from prosecution for aggression by invoking their veto. At the Rome Conference, agreement could not be reached on how to address the crime of aggression. It was recognised as one of the four crimes within the jurisdiction of the Court but, unlike the other categories, there was no definition. Instead, a placeholder was inserted in the final text, Article 5 (2), postponing exercise of jurisdiction by the Court over the crime of aggression until a provision was adopted “defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime”. The unfinished business of the Rome Conference on the crime of aggression was largely completed at the Kampala Review Conference in 2010. An amendment was accepted without much difficulty defining the crime using a definition inspired by the 1974 General Assembly 272

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resolution. The real problem concerned the relationship with the Security Council. It was only resolved in a dramatic session late in the evening of the final day of the Review Conference. Rather than leave the Security Council with a monopoly on prosecution, the amendments allowed the Prosecutor to proceed proprio motu subject only to obtaining judicial authorisation from the Pre-Trial Division of the Court 273. Following the adoption of the amendments, France said it had decided not to oppose the consensus but nevertheless claimed that the provision “restricts the role of the United Nations Security Council and contravenes the Charter of the United Nations under the terms of which the Security Council alone shall determine the existence of an act of aggression” 274. After the amendments entered into force, the Assembly of States Parties authorised the Court to exercise jurisdiction as of 17 July 2018. It also specified that the amendments only apply to acts of aggression perpetrated by States that have ratified the amendments 275. As of 31 December 2020, only forty States had accepted the aggression amendments. There had been one ratification in 2020, two in 2019 and two in 2018. In practice, therefore, the prospect of any prosecution for the crime of aggression still very largely remains under the control of the Security Council, which  The Crime of Aggression, RC/Res.6.   Statements by States Parties in Explanation of Position after the Adoption of Resolution RC/Res.6 on the Crime of Aggression, RC/11, pp. 122-124, at p. 123. 275   Activation of the Jurisdiction of the Court over the Crime of Aggression, ICC-ASP/16/Res.5, para. 1. See Jennifer Trahan, “From Kampala to New York: The Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression”, (2018) 18 International Criminal Law Review 197; Noah Weisbord, The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats, Princeton, Princeton University Press, 2019, pp. 169-173. 273 274

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may trigger the Court’s jurisdiction pursuant to Article 13 (b) with respect to States that are not parties to the amendments or to the Rome Statute. The previous section, on State responsibility, briefly examined the doctrine of the “responsibility to protect”, by which duty is imposed upon the “international community” to prevent genocide, crimes against humanity, war crimes and ethnic cleansing. The relevant General Assembly resolution uses language that appears to rule out intervention not authorised in accordance with the Charter of the United Nations. This was a disappointment for some, who noted that it placed a fatal limitation on international action if it was opposed by a permanent member of the Security Council. The debate returned, but in a slightly different form, at the Kampala Review Conference on the Rome Statute. The United States, which had only just resumed participation as an observer in the Assembly of States Parties after boycotting the institution for several years, expressed concerns that the use of force in pursuit of the responsibility to protect might fall within the ambit of the crime of aggression. The draft definition specified that only acts of aggression that constituted a “manifest” violation of the Charter of the United Nations could qualify as crimes of aggression. The American delegation proposed the adoption of an “understanding” by which so-called “humanitarian intervention” would be judged in light of its professed purposes, even if it did not have Security Council authorisation. Its text was rejected in favour of one that reaffirmed the significance of the Charter of the United Nations 276. In this way, a debate within the branch of international criminal law contributed to the progressive development of general international law on the jus ad bellum. 276

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CHAPTER 3

INTERNATIONAL HUMANITARIAN LAW International humanitarian law is a branch of international law with an intimate relationship to international criminal law. The Charter of the International Military Tribunal referred to the “laws and customs of war”, which is the formulation employed in the Hague Conventions of 1899 and 1907. In its first years, the International Law Commission appears to have favoured the term “laws of war” 277. It seems that references to “international humanitarian law” only began to appear during the 1950s, their use encouraged by the International Committee of the Red Cross 278. In the seminal Tadić jurisdictional decision, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia wrote of “the more recent and comprehensive notion of ‘international humanitarian law’, which has emerged as a result of the influence of human rights doctrines on the law of armed conflict” 279. If the term “international humanitarian law” is relatively new, the system it describes has ancient   Yearbook . . . 1949, paras. 64-79.   The term “droit international humanitaire” was used in Article 4 (f) of the Statutes of the International Committee of the Red Cross, adopted in 1952. The Commentaries on the Geneva Conventions, published during the 1950s, refer to “humanitarian law”. They do not employ the term “international humanitarian law”, whose widespread use dates only from the 1970s. The two additional protocols of 1977 were drafted by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. 279   Prosecutor v. Tadić (IT-94-6-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 87. 277 278

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origins. Codification of customary international law began in the mid-nineteenth century. To that extent, international humanitarian law is quite different from the other branches of international law considered in this course. The titles of the Hague Conventions, adopted in 1899 and 1908, refer to the “customs of war” as well as to “the laws”. Furthermore, they acknowledge the continued application of existing rules and principles that are not included in the treaty texts. These “principles of the law of nations” are to be found in “the usages established among civilised peoples”, “the laws of humanity, and the dictates of the public conscience” 280. The full name of the ad hoc tribunal for the former Yugoslavia describes it as being for the purpose of “the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law”. This is an expansive understanding of the notion of humanitarian law, given that two of the four categories in the subject-matter jurisdiction of the Tribunal, crimes against humanity and genocide, are crimes that may be committed in time of peace. The definition of crimes against humanity in the Statute imposed a limitation that they be “committed in armed conflict” but there was nothing similar for genocide. The 1948 Convention begins by proclaiming that genocide may be committed “in time of peace or in time of war” 281. Moreover, as the International Court of Justice said in the Croatia v. Serbia case, “the Convention and international humanitarian law are two distinct bodies of rules, pursuing different aims” 282. When it identified the Yugoslavia Tribunal  Convention (II) with Respect to the Laws and Customs of War on Land, 32 Stat. 1803, Treaty Series 403, PP 9; Convention (IV) Respecting the Laws and Customs of War by Land, [1910] UKTS 9, PP 8. 281  Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, Article 1. 282   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015,William p. 3, para. 153. - 978-90-04-52150-6 A. Schabas 280

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as an instrument for the enforcement of “international humanitarian law” including the crime of genocide, the Security Council certainly did not contribute to legal clarity. The confused use of the term was to continue. The Statute of the ad hoc tribunal for Rwanda made a similar reference to international humanitarian law, yet its temporal jurisdiction was described as the calendar year 1994 during which there was armed conflict for only about three months. For the rest of 1994, there would seem to be no space for the application of international humanitarian law, although there might be for crimes against humanity and genocide committed in time of peace. The third of the ad hoc tribunals, the Special Court for Sierra Leone, also spoke of “serious violations of international humanitarian law” in Article 1 of its Statute. Yet it seems that it clearly had jurisdiction over crimes against humanity perpetrated in time of peace as well. In all three cases, the use of the term “international humanitarian law” is overly broad, although serving to underscore a close relationship between international criminal law and international humanitarian law. It might even be said that all of the temporary international criminal tribunals, beginning with Nuremberg, have viewed international criminal justice as essentially a mechanism for the implementation of the law of armed conflict. Very commonly, mechanisms for the enforcement of international criminal law are described as “war crimes tribunals”. Such formulations are technically inaccurate but nevertheless very effective descriptions of their activities. Only a pedant would quarrel with a colloquial reference to “war crimes” in circumstances where the requirements for an armed conflict may not be met. The Rome Statute leaves no ambiguity about the international criminal prosecution of situations where there is no armed conflict. It only uses the term “international humanitarian law” in the provision on qualifications of judges. It defines a category of candidate for

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election to the bench with “established competence in relevant areas of international law such as international humanitarian law and the law of human rights” 283. The definitional provisions of war crimes refer to “laws and customs applicable in international armed conflict” 284 and “international law of armed conflict” 285, thereby requiring some reference to this extraneous source in order to apply the provisions accurately. In the Elements of Crimes, a footnote to the text on transferring a civilian population into an occupied territory states: “The term ‘transfer’ needs to be interpreted in accordance with the relevant provisions of international humanitarian law”. There is also a statement in the General Introduction to the Elements of Crimes: “The requirement of ‘unlawfulness’ found in the Statute or in other parts of international law, in particular international humanitarian law, is generally not specified in the elements of crimes” 286. The most important reference appears in Article 21 (2), which describes as a subsidiary source of applicable law “the established principles of the international law of armed conflict”. Confirming the charges in Lubanga, Pre-Trial Chamber I of the International Criminal Court invoked Article 21 (1) (b), noting that the term “international armed conflict” used in Article 8 (2) (b) was not defined by the Statute. It referred to common Article 2 of the Geneva Conventions as well as to the authoritative Commentary produced by the International Committee of the Red Cross 287. The Pre-Trial Chamber  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 36 (3) (b) (ii). 284   Ibid., Article 8 (2) (b) and (e). 285   Ibid., Article 8 (2) (b) (iii), (b) (xx), (e) (iii). 286  Elements of Crimes, ICC-ASP/1/3 and Corr.1, part II.B, General Introduction, para. 6. 287   Prosecutor v. Lubanga (ICC-01/04-01/06), Decision on the Confirmation of the Charges, 29 January 2007, paras. 208209. Also: Prosecutor v. Bemba (ICC-01/05-01/08), Decision Pursuant to Article 61 (7) (a) and (b) of the Rome

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also looked to the 1907 Hague Convention as an authority for the definition of occupied territory 288. In Katanga, Pre-Trial Chamber I turned to Additional Protocol I to the Geneva Conventions for guidance as to the interpretation of the provisions of Article 8 (2) (b) 289. It also referred to common Article 3 and various other provisions of the Geneva Conventions 290. Pre-Trial Chamber looked to the Hague Convention and the Geneva Conventions in its examination of the nature of the war crime of pillaging 291. It considered the Geneva Conventions and the Additional 292 Protocols when discussing civilian status  , and in circumscribing the notion of non-international armed conflict 293. Although it did not cite Article 21 (2) (b), a Trial Chamber of the International Criminal Court referred to “the rights reflected in international humanitarian law for the purpose of interpreting the provision on the crime against humanity of persecution 294. The customary law study of the International Committee of the Red Cross 295 has been cited by a Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras. 220-222; Prosecutor v. Mbarushimana (ICC-01/04-01/10), Decision on the Confirmation of Charges, 16 December 2011, para. 100. 288   Prosecutor v. Lubanga (ICC-01/04-01/06), Decision on the Confirmation of the Charges, 29 January 2007, para. 213. 289   Prosecutor v. Katanga et al. (ICC-01/04-01/07), Decision on the Confirmation of Charges, 30 September 2008, paras. 266, 276, 312–313. 290   Ibid., paras. 276, 287–291, 293, 314, 357. 291   Prosecutor v. Bemba (ICC-01/05-01/08), Decision Pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 317, fn. 389. 292   Ibid., para. 78, fn. 101. 293   Ibid., paras. 227–288. 294   Prosecutor v. Ntaganda (ICC-01/04-02/06), Judgment, 8 July 2019, para. 991. 295  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, Cambridge: Cambridge University Press, 2005. William A. Schabas - 978-90-04-52150-6

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Pre-Trial Chamber of the International Criminal Court as authority for rules that distinguish civilian objects from military objectives in non-international armed conflict 296. It was also invoked in a discussion of attacks that are otherwise lawful but disproportionate in terms of the disproportionate consequences 297. In a dissenting opinion, Judge Song referred to the customary law study to support the principle “that people who become members of an armed force (combatants) generally lose the protection that civilians enjoy in times of war” 298. In none of these rulings is reference made to Article 21 (1) (b), although it is clearly the relevant authority in the Statute 299. In Part 3, labelled “General Principles of Criminal Law”, the Rome Statute contains a fairly detailed codification of defences, drawn largely from comparative criminal law. It leaves open the possibility of additional defences “where such a ground is derived from appli  Prosecutor v. Abu Garda (ICC-02/05-02/09), Decision on the Confirmation of Charges, para. 8, February 2010, para. 88. Also, para. 79, fn. 111. 297   Prosecutor v. Mbarushimana (ICC-01/04-01/10), Decision on the Confirmation of Charges, 16 December 2011, para. 142 298   Prosecutor v. Lubanga (ICC-01/04-01/06), Partly Dissenting Opinion of Judge Sang Hyun-Song, 1 December 2014, para. 6. See also the reference to the study in the Majority Opinion: Prosecutor v. Lubanga (ICC-01/04-01/06), Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction, 1 December 2014, para. 277, fn. 526. 299  For the sake of completeness, there are a few other references to the study in case law of the International Criminal Court: Prosecutor v. Ntaganda (ICC-01/04-02/06 OA5), Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s challenge to the Jurisdiction of the Court in respect of Counts 6 and 9”, 15 June 2017, para. 64; Prosecutor v. Bemba (ICC-01/05-01/08), Judgment Pursuant to Article 74 of the Statute, 21 March 2016, paras. 152, fn. 342, 155, fn. 353, 172, fn. 387. 296

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cable law as set forth in Article 21” 300. This has been understood as an implied reference to justifications that may arise in the law of armed conflict such as reprisal and military necessity. Reprisal against prisoners of war was prohibited by the 1929 Geneva Convention 301. In the final days of the Second World War, Hitler considered denouncing the Convention so as to conduct reprisals against Allied prisoners for the bombing raids on German cities 302. The Geneva Conventions of 1949 and Protocol Additional I prohibit reprisals against protected persons, civilian objects, the natural environment and certain types of dangerous structures 303, but this only tends to confirm that there may be circumstances where they are not prohibited. Case law of war crimes trials has  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 31 (3). 301  Convention Relative to the Treatment of Prisoners of War, (1929) 118 LNTS 343, Article 2. 302   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 314. 303   Geneva Convention (III) Relative to the Treatment of Prisoners of War of August 12, 1949, (1950) 75 UNTS 135, Article 13 (3); Geneva Convention (IV) Relative to the Protection of Civilians in Time of War of 12 August 1949, (1950) 75 UNTS 287, Article 33; Protocol Additional I to the 1949 Geneva Conventions and Relating to The Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Article 20, 52 (1), 53 (c), 54 (4), 55 (2), 56 (4). See Frits Kalshoven, “Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal”, in L. C. Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays in Honour of Antonio Cassese, The Hague: Kluwer Law International, 2003, pp. 481510; Christopher Greenwood, “Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, in Horst Fischer, Claus Kreß and Sascha Rolf Lüder (eds.), International and National Prosecution of Crimes Under International Law: Current Developments, Berlin: Verlag Arno Spitz GmbH / BadenBaden: Nomos, 2001, pp. 539–57. 300

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recognised the defence of reprisal 304. Upon ratification of the Rome Statute the United Kingdom made a declaration that “confirms and draws to the attention of the Court its views as expressed, inter alia, in its statements made on ratification of relevant instruments of international law, including the Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8th June 1977” 305. The reference is to its persistent claim that reprisals are not prohibited generally by the law of armed conflict. 3.1.  Defining war crimes Although there is some evidence of the internationalisation of criminal prosecution for violations of the laws and customs of war in the nineteenth century 306, the first serious consideration at the international level took place at the Paris Peace Conference in the first months of 1919. In preparation, a British government committee formulated a list of war crimes that included “Illegal Methods of Submarine Warfare”, “Promiscuous Bombardment from the Air of Undefended Towns and Villages”, “Murder of Hostages” and the “Execution of Edith Cavell and Captain Fryatt” 307. A French report   United States of America v. List et al. (“Hostage case”), (1950) 11 TWC 1230, at pp. 1252-56; United States of America v. Von Leeb et al. (“High Command case”), Judgment, 27 October 1948, (1950) 11 TWC 462, at pp. 528529. 305  See Amnesty International, International Criminal Court: Declarations Amounting to Prohibited Reservations to the Rome Statute, IOR 40/032/2005, pp. 36-37. 306  See Ziv Bohrer, “World War I: A Phoenix Moment in the History of International Criminal Tribunals”, (2021) 32 European Journal of International Law (in press). 307  “Report of Special Sub-Committee on Law”, in First Interim Report from the Committee of Enquiry into Breaches of the 304

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published at the same time listed “[t]he use of forbidden arms, the poisoning of air or of water, the ill-treatment of prisoners, the arrest and massacre of hostages, the destruction of towns and ships, even of hospital ships, the violation of family life by means of déportations en masse of peaceful inhabitants and deliberate violations of the honour of young girls, the submarine torpedoing of ships loaded with women and children, the bombarding of cities, sometimes undefended, by aeroplane or by long-range guns, with no other object 308 than to terrorise an inoffensive population”  . The report of the Commission on Responsibilities proposed a list of thirty-two distinct offences, beginning with “murders and massacres; systematic terrorism”, “putting hostages to death”, “torture of civilians”, “deliberate starvation of civilians”, “rape” and “abduction of girls and women for the purpose of enforced prostitution”, “denationalisation”, and ending with “employment of prisoners of war on unauthorised works”, “misuse of flags of truce” and “poisoning of wells”. The report specified that the offences enumerated “are not regarded as complete and exhaustive; to these such additions can from time to time be made as may seem necessary” 309. The Commission’s list provided a starting point for the London International Assembly in its pioneering work on post-war prosecutions, which began in 1941 310. In 1943 Laws of War, 13 January 1919, TNA CAB/24/111, pp. 9599, at p. 98.  F. Larnaude and A. de Lapradelle, “Inquiry into the Penal Liabilities of the Emperor William II”, in Commission on the Responsibility of the Authors of the War, Minutes of Meetings of the Commission, USNA 181.1201/16, pp. 4-18, at p. 5. 309   Report of the Commission on Responsibilities, USNA 181.1201/16, pp. 115-176, at pp. 122-123. 310  See, for example, Marcel de Baer, Scope and Meaning of the Concept of War Crimes, London International Assembly, October 1942, p. 4. 308

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the United Nations War Crimes Commission adopted the list prepared by the Commission on Responsibilities as a basis for its work 311. The Treaty of Versailles contemplated trials of German military personnel for “acts in violation of the laws and customs of war”. There was nothing particularly innovative about the view that war crimes could be prosecuted by the courts of the enemy, although this obviously was dependent upon the accused having been captured. The treaty obliged Germany to surrender suspects on demand, and to cooperate in the prosecution by other means, such as the transmission of evidence. It also provided that multinational tribunals could be established if more than one Allied state had been a victim. The Germans resisted when the Allies submitted a list of more than 1,000 individuals. A compromise was negotiated whereby accused persons designated by the Allies were tried before German courts 312. The Charter of the International Military Tribunal did not attempt an exhaustive definition of war crimes. Article VI of the Charter confirms that “war crimes” are “violations of the laws and customs of war”, specifying  United Nations War Crimes Commission, Report of the Sub-Committee as Adopted on 2 December 1943, C.1, para. 9. The list was Annex I of the report. 312  Gerd Henkel, Die Leipziger Prozesse: Deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung nach dem Ersten Weltkrieg, Hamburg: Hamburger Institute, 2003; James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT: Greenwood Press, 1982; Claud Mullins, The Leipzig Trials, An Account of the War Criminals’ Trials and a Study of German Mentality, London: Witherby, 1921; Jürgen Mattäus, “The Lessons of Leipzig: Punishing German War Criminals after the First World War”, in Patricia Heberer and Jürgen Mattäus (eds.), Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes, Lincoln: University of Nebraska Press, 2008, pp. 3-23. 311

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that they “shall include, but not be limited to, murder, illtreatment or deportation to slave labour or for any other purpose of 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”. In its final judgment, the Tribunal referred to the 1907 Hague Convention as authority, with specific reference to Articles 46, 50, 52 and 56 of the Regulations that were annexed to it, as well as to Articles 2, 3, 4, 46 and 51 of the 1929 Geneva Convention 313. “That violation of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument”, it affirmed 314. To the technical objection that the Hague Convention might not be applicable because it had not been ratified by all parties to the conflict, the judges answered that “these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war” 315. The 1949 Geneva Conventions, which unlike the Hague Conventions do not address the conduct of hostilities, provide for criminal prosecution of specific violations known as “grave breaches”. The victims of these crimes must be “protected persons”, a term of art that applies to civilians and prisoners of war as well as to soldiers and sailors who are hors de combat as a result of injury or some other cause. The grave breach provisions in the four Conventions vary slightly. The text   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 253. Two Geneva Conventions were adopted in 1929. The references to the specific provisions indicate that the Tribunal was referring to the Convention Relative to the Treatment of Prisoners of War, (1929) 118 LNTS 343. 314   Ibid., p. 253. 315   Ibid., p. 254. 313

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in the fourth or civilian Convention describes them as “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” 316. The list was amplified slightly when the Conventions were revised in 1977 317, but the concept remained confined to international armed conflict. International legislators returned to the codification of war crimes when the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted in 1993. The Statute contained two provisions governing war crimes, the first listing grave breaches of the four Conventions (but not the 1977 Protocol) and the second, “violations of the laws or customs of war’. In the explanatory report accompanying the draft, the Secretary-General described the Geneva Conventions as “the core of the customary law applicable in international armed conflicts” 318. The Secretary-General noted that on several occasions the Security Council had reaffirmed “that persons who commit or order the commission of grave breaches of the 1949 Geneva Conventions in the territory of the former Yugoslavia are individually   Geneva Convention (IV) Relative to the Protection of Civilians in Time of War of August 12, 1949, (1950) 75 UNTS 287, Article 147. 317   Protocol Additional I to the 1949 Geneva Conventions and Relating to The Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Article 87. 318  Report of the Secretary-General Pursuant to para. (2) of Security Council Resolution 808 (1993), S/25704 (1993), para. 37. 316

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responsible for such breaches as serious violations of 319 international humanitarian law”  . As for “laws or customs of war”, the Secretary-General referred to the 1907 Hague Convention, saying it had “become part of the body of international customary law”, acknowledging the endorsement by the International Military Tribunal in its final judgment 320. Like Article VI of the Nuremberg Charter, the enumeration was not exhaustive: “Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property”. The list was quite original, although each of the itemised crimes could be traced to a text in either the Hague Convention or the Nuremberg Charter. When the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted, critics expressed concern about the viability of prosecution because much if not all of the conflict was non-international. There was no basis in treaty law for the recognition of international criminal liability other than in an international armed conflict. Writing about the Yugoslavia Tribunal a few months after its creation, Theodor Meron, who years later would become a judge and president of the institution, cautioned that “[i]nternal strife and even civil wars are still largely outside the parameters of war crimes and the   Ibid., para. 39. See, for example, S/24744 (30 October 1992); S/24378 (4 August 1992). 320  Report of the Secretary-General Pursuant to para. (2) of Security Council Resolution 808 (1993), S/25704 (1993), paras. 41-42. 319

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grave breaches provisions of the Geneva conventions” 321. “Were any part of the former Yugoslav conflict deemed internal rather than international, the perpetrators of even the worst atrocities could not be prosecuted for grave breaches or war crimes”, he wrote 322. But in the first case to come to trial, an inspired panel of judges on the Appeals Chamber of the Tribunal effected a judicial revolution, declaring that the laws or customs of war provision in the Statute of the Tribunal was large enough to include war crimes committed in a non-international armed conflict 323. Recognition of the criminality of war crimes in non-international armed conflict was soon taken up in the negotiations of the statute of the permanent court. The International Law Commission draft had proposed subject-matter jurisdiction over “[s]erious violations of the laws and customs applicable in armed conflict”, referring to the usual sources but without even addressing whether or not the category might apply to non-international armed conflict 324. Everything changed after the Tadić decision. In early 1997 the United States submitted a text consisting of three categories of war crimes, of which the third comprised serious breaches of common Article 3 to the Geneva Conventions, which is the provision in those treaties specifically applicable to non-international armed conflict 325. Switzerland  Theodor Meron, “The Case for War Crimes Trials in Yugoslavia”, (1993) 72:3 Foreign Affairs 122, at p. 124.   Ibid., p. 128. 323   Prosecutor v. Tadić (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 87, 89, 91. 324   Yearbook . . . 1994, Vol. II (Part 2), pp. 39-40. 325   Proposal Submitted by the United States, War Crimes, A/AC.249/1997/WG.I/DP.1. See also: Working Paper Prepared by the International Committee of the Red Cross for the Preparatory Committee for the Establishment of an International Criminal Court, 13 February 1997. 321 322

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and New Zealand suggested a lengthier provision with more developed texts concerning non-international armed conflict. Their proposal was clearly inspired by Additional Protocol II to the Geneva Conventions, which further develops common Article 3 326. At the Rome Conference in 1998 relatively few countries challenged the codification of war crimes in non-international armed conflict 327. Detailed texts in Article 8 of the Rome Statute give the Court subject-matter jurisdiction over war crimes in non-international armed conflict. The list of war crimes in non-international armed conflict is, however, significantly shorter. This is understood as reflecting a widely held view when the Rome Statute was being negotiated that international humanitarian law applicable in non-international armed conflict was less developed. Evidence of this phenomenon can be seen in the dimensions of the two Additional Protocols of 1977. Additional Protocol I applicable to international armed conflict consists of 102 articles while Additional Protocol II applicable to non-international armed conflict has only 28 articles. The Commentary on the Protocols published by the International Committee of the Red Cross devotes more than 1,300 pages to Protocol I and only about 200 pages to Protocol II 328. Some but by no   Working Paper Submitted by the Delegations of New Zealand and Switzerland, A/AC.249/1997/WG.1/DP.2. 327  A/CONF.183/C.1/SR.4, paras. 65 (China), 66 (United Arab Emirates); A/CONF.183/C.1/SR.5, paras. 107 (Turkey), 115 (India), 120 (China); A/CONF.183/C.1/SR.33, para. 37 (India); A/CONF.183/C.1/SR.34, para. 48 (Turkey); A/CONF.183/C.1/SR.35, paras. 31 (Algeria), 54 (Pakistan), 57 (Qatar), 64 (Iraq); A/CONF.183/C.1/SR.36, paras. 6 (Libya), 20 (Oman); A/CONF.183/SR.9, paras. 38 (China), 43 (Turkey), 96 (Pakistan). 328  Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, Geneva: Martinus Nijhoff, 1987. 326

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means all of the lacunae in the war crimes provisions of the Rome Statute governing non-international armed conflict have been plugged by amendments, although the rate of their ratification is poor 329. 3.2.  Limitations on attacks and the conduct of hostilities Aside from the classification of war crimes based upon the nature of the armed conflict, a more informal distinction may be made depending upon whether the offence concerns the conduct of hostilities or the protection of persons who have fallen under the control of one of the parties to the conflict. To some extent, this reflects the origins of the norm, because the Hague Conventions deal in large part with the rules that apply to actual combatants whereas the Geneva Conventions concern “protected persons” who are no longer or who were never actively participating in the conflict, and where the rules bear many affinities with those of human rights law. Specialists in human rights law find themselves comfortable in the latter category as it concerns such issues as conditions of detention, fair trials, fundamental freedoms of speech, assembly, association and religion, non-discrimination and economic, social and cultural rights. Human rights law is not on such familiar territory when international humanitarian law turns to actual conduct on the battlefield. This aspect of international humanitarian law is of particular concern to the military. At the Rome Conference, many countries included experts from the armed forces in their delegations, in this way acknowledging the importance of expertise in this 329

 Amendment to Article 8 (adding subparas. 8 (2) (e) (xiii), (xiv) and (xv) on prohibited weapons), (2012) 2868 UNTS 195 (39 ratifications); Amendment to Article 8 (adding subpara. 8 (2) (e) (xix) on intentionally using starvation of civilians), ICC-ASP/18/Res.5 (3 ratifications). William A. Schabas - 978-90-04-52150-6

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specialised area. The military insisted on participating mainly in order to ensure that war crimes were not defined in a manner that they considered unrealistic in terms of the reality of armed conflict. Further down the line, military experts have been concerned that judges, who may have no real knowledge or experience in wartime, will lay down strict rules about what is allowed and what is forbidden in armed conflict. There is a famous example of this interaction between military experts and international justice at the International Military Tribunal. Two of the accused, Karl Dönitz and Erich Raedar, had been admirals in the German navy. The judgment says that Dönitz was charged with waging unrestricted submarine warfare contrary to the Naval Protocol of 1936, to which Germany acceded, and that reaffirmed the rules of submarine warfare laid down in the London Naval Agreement of 1930 330. There is in fact no reference in the indictment to either the London Naval Agreement or submarine warfare 331. Dönitz was cross-examined at some length by the British prosecutor, David Maxwell-Fyfe, about the interpretation of the London Naval Agreement 332. Pursuant to a request of the Tribunal, American admiral Chester Nimitz testified that the American navy had engaged in unrestricted submarine warfare from the first days of the war 333. The prosecution objected to the production of Nimitz’s testimony, arguing that although the United States may   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at 313. 331   United States et al. v. Goering et al., Indictment, (1949) 1 IMT 27-95. 332   “One Hundred and Twenty-Sixth Day, 10 May 1946, Morning Session”, (1949) 13 IMT 353-371. 333  “Testimony of Fleet Admiral Nimitz, US Navy, 11 May 1946, Regarding Naval Warfare in the Pacific from 7 December 1941, Including the Principles Governing the Rescue of Survivors of Sunk Enemy Ships”, (1949) 40 IMT 91-111. 330

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have indulged in the same approach to submarine warfare as the Germans, this might have been “retaliation” and, in any event, the tu quoique defence was inadmissible 334. President Lawrence insisted that Otto Kranzbühler, defence counsel for Dönitz, read the interrogatory of Nimitz aloud 335. Dönitz also introduced as evidence a statement in the House of Commons on 11 April 1940 by Winston Churchill, then First Lord of the Admiralty, indicating that British submarines had been ordered to sink all ships in the Skagerrak, the strait dividing Norway and Denmark 336. Writing many years after the trial in his legendary account, Telford Taylor said: “it was as clear as clear could be that if Dönitz and Raeder deserved to hang for sinking ships without warning, so did Nimitz” – and probably Churchill too 337. In his final speech to the Tribunal, Dönitz said: “I consider this form of warfare justified and have acted according to my conscience. I would have to do exactly the same all over again.” 338 In its final judgment, the Tribunal said that the order issued by Dönitz to sink neutral ships without warning when found within certain zones was a violation of the 1936 Protocol to the London Naval Agreement 339. But, said the Tribunal, in view of the Churchill declaration and the Nimitz testimony about unrestricted submarine warfare, it would not “assess” the sentence imposed upon Dönitz “on the ground of his breaches of the international law of submarine warfare”. Dönitz was condemned to ten years’  “Seventy-Third Day, 4 March 1946, Afternoon Session”, (1949) 8 IMT 547 (Maxwell-Fyfe). 335  “One Hundred and Sixty-Ninth Day, 2 July 1946, Afternoon Session”, (1949) 17 IMT 378-381. 336  HC Deb, 11 April 1940, Vol. 359, cc733-64. 337  Telford Taylor, The Anatomy of the Nuremberg Trials, New York: Alfred A. Knopf, 1992, p. 406. 338  “Two Hundred and Sixteenth Day, 31 August 1946, Morning Session”, (1949) 22 IMT 390. 339   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at p. 313. 334

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detention, the lightest sentence handed down by the Tribunal. The judgment of the Tribunal on this issue is sometimes misunderstood as amounting to an acquittal 340, which it evidently was not. Nor was it any vindication of the conduct of the British or the American navies. But obviously the Tribunal could not have condemned Allied combatants for war crimes as this would have exceeded its jurisdiction and it would also have been unfair. Concern about the influence of international criminal law on the law of armed conflict applicable to the conduct of hostilities has continued in the modern period. The International Criminal Tribunal for the former Yugoslavia entered the fray in a case dealing with “Operation Storm”, a military campaign launched by Croatian forces in August 1995 in order to recover sovereignty over a portion of the country’s territory that had functioned since 1992 as a Serb-run pseudo-State known as the Serbian Republic of the Krajina. One of the military tactics involved the artillery bombardment of the towns of Knin, Benkovac, Obrovac and Gračac. The consequence of the attack was a huge refugee flow of Serbs who essentially abandoned the town, most of them never to return. The general in charge of the campaign, Ante Gotovina, was convicted at trial for the artillery campaign. There were some military objectives in the towns that could have been considered lawful targets, and the Trial Chamber applied a presumption that impact sites of artillery shells that landed more than 200 metres from a legitimate target in the towns provided evidence of war crimes, either because the shelling was indiscriminate or because it actually targeted civilians 340

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and civilian objects 341. When the judgment was appealed, a blue-ribboned group of military experts from NATO countries submitted an amicus curiae brief premised on the “interest and expertise in the relationship between military operational practice and international humanitarian law”. They insisted upon “balancing humanitarian interests and protections with the ability of armed forces to efficiently accomplish their strategic, operational, and tactical missions”. The express concern of these experts was the limitation on the law applicable to artillery bombardment of urban settings that the Trial Chamber judgment appeared to impose 342. The Appeals Chamber did not admit the brief into the record, at least in part because its authors did not disclose the involvement of some of them as experts for the defence 343 during the trial proceedings  . The Chamber made no reference to it in the judgment but the arguments of the military experts were no secret and the Appeals Chamber judges were well aware of them. Three of the five judges granted the appeal 344. Military commanders around the world who might find themselves involved in military activity in population centres breathed a sigh of relief. Concerns about judges at international criminal tribunals constraining military activities have also arisen at the International Criminal Court. In the Ntaganda case,   Prosecutor v. Gotovina et al. (IT-06-90-T), Judgment, 15 April 2011. 342   Prosecutor v. Gotovina et al. (IT-06-90-A), Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm, 12 January 2012. 343   Prosecutor v. Gotovina et al. (IT-06-90-A), Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012. 344   Prosecutor v. Gotovina et al. (IT-06-90-A), Judgment, 16 November 2012. 341

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the Trial Chamber considered that acts of looting and destruction committed as part of a ratissage operation could not be considered war crimes. The term ratissage is traced to the conduct of French counter-insurgency activities in Algeria during the 1950s and refers to a particularly violent raid. The Prosecutor’s appeal raised the issue of the scope of the term “attack” as it appears in a number of subparagraphs in Article 8 of the Statute. The question had also arisen in an earlier case but because the accused entered a guilty plea and did not appeal the conviction there was no serious discussion of the legal issues. The Appeals Chamber sought submissions from “[q]ualified publicists of international humanitarian and/or criminal law” on the scope of the term “attack” in international humanitarian law 345. There were several applications for leave to make submissions, a number of them from NGOs and individuals who would probably not meet the definition of “publicist” as the term is understood in Article 38 of the Statute of the International, but the Chamber granted virtually all of the requests 346. As in the Gotovina case, this issue concerning the conduct of hostilities provoked the interest of military experts concerned that judicial pronouncements might tighten the hands of combatants. Professor Michael Newton of Vanderbilt University, who was a distinguished officer in the US Marines, warned that “acceding to the Prosecutor’s view of Article 8 would represent a fundamental realignment within international humanitarian law that would foreseeably result   Prosecutor v. Ntaganda (ICC-01/04-02/06 A2), Order Inviting Expressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of the Rules of Procedure and Evidence), 24 July 2020. 346   Prosecutor v. Ntaganda (ICC-01/04-02/06 A2), Decision on the Requests for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence, 24 August 2020. 345

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in deleterious consequences for the conduct of ground operations” 347. 3.3.  Asymmetric war crimes in non-international armed conflict Confirming the progressive development of the international law governing war crimes, the Rome Statute recognises that they can be prosecuted when perpetrated in non-international armed conflict as well as in international armed conflict. Indeed, most modern armed conflict is non-international in nature. In Lubanga, the Trial Chamber noted that some academics and practitioners, as well as judges at the ad hoc tribunals, had questioned the usefulness of distinguishing between the two categories of conflict. The Chamber said that the distinction “is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Court’s statutory framework” 348. For many of the crimes the definitions are very similar if not entirely identical regardless of the nature of the conflict. Identifying whether or not a conflict is international or non-international in nature seems quite irrelevant in such cases. Sometimes, this has been acknowledged by the Court. For example, when issuing an arrest warrant, a Pre-Trial Chamber of the International Criminal Court found it unnecessary to   Prosecutor v. Ntaganda (ICC-01/04-02/06 A2), Observations of Professor Michael A. Newton on the Merits of the Legal Questions Presented by the Appeals Chamber in the Case of The Prosecutor v. Bosco Ntaganda, 17 September 2020, paras. 2. 348   Prosecutor v. Lubanga (ICC-01/04-01/06), Judgment Pursuant to Article 74 of the Statute, 14 March 2012, para. 539. 347

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determine whether the conflict was international or noninternational “since the conduct which forms the basis of the counts proposed under the heading of war crimes is criminalised by the Statute irrespective of whether it is carried out in the context of an international or internal armed conflict” 349. However, generalisation about some fundamental equivalence in the application of the war crimes regardless of the nature of the conflict has its problems. In the original text of the Rome Statute, four subparagraphs of Article 8 (2) (b) were devoted to prohibited weapons. The Statute was completely silent with respect to prohibited weapons in non-international armed conflict. At first glance it seems counterintuitive that a weapon judged to be inhumane should be prohibited in an international armed conflict but not in a non-international armed conflict. But there may be some rationale for a distinction. The prohibition of so-called dum-dum bullets is one of the oldest rules of international humanitarian law, dating to the 1868 St Petersburg Declaration 350 and a declaration of the 1899 Hague Conference 351. The list of war crimes in the report of the Commission on Responsibilities of March 1919 included the “use of explosive or expanding bullets, and other inhuman appliances” 352. The Rome Statute prohibits the use of “bullets which expand or flatten easily in the human   Prosecutor v. Mbarushimana (ICC-01/04-01/10), Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana, 28 September 2010, para. 20. 350  Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 29 November / 11 December 1868. 351   Declaration Concerning Expanding Bullets, The Hague, 29 July 1899. 352  Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, (1920) 14 American Journal of International Law 95, at p. 115. 349

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body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions” 353. In 2010 the Statute was amended so as to reproduce the prohibition on the use of exploding bullets in the section of Article 8 dealing with non-international armed conflict. The resolution accompanying the amendment specifies that this is “a serious violation of the laws and customs applicable in armed conflict not of an international character” and that “the crime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law” 354. Rather than an outright prohibition, which had been the case in previous formulations of the norm, the 2010 amendment subjects the crime to a motive requirement. When the amendments to Article 8 were adopted at the Kampala Conference, France made the following declaration, with which Canada, Israel and the United States associated themselves: “France underlines that this document makes up a whole. The new crime defined in Article 8, para. 2 (e) (xv), is constituted once the intentional element referred to in the resolution has been established, that is to say the fact of employing the bullets in question to uselessly aggravate suffering or the wounding effect upon the target of such bullets” 355. The rationale was concern about the not uncommon use of such bullets for law enforcement in circumstances where they may mitigate collateral damage rather than cause unnecessary suffering. Apparently, according to a study  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 (2) (b) (xix). 354  Amendments to Article 8 of the Rome Statute, RC/Res.5, PP 9. 355  Statements by States Parties in Explanation of Position after the Adoption of Resolution RC/Res.5, on the Amendments to Article 8 of the Rome Statute, RC/11, p. 120. 353

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by Professor Françoise Hampson, bullets that respond to this definition are often used by law enforcement authorities for the purpose of minimising injury to bystanders by ensuring that the bullet remains with its human target 356. A paragraph in the Kampala Conference resolution accompanying the amendment to Article 8 (2) was included so as to “confirm the exclusion from the Court’s jurisdiction of law enforcement situations” 357. At the time of its accession to Article 8 (2) (e) (xv), the Czech Republic declared the following: “The prohibition to employ bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, does not apply to the use of such bullets during activities of police nature in the context of law enforcement and maintenance of public order, which do not constitute direct participation an armed conflict, such as rescuing hostages and neutralising civil aircraft hijackers” 358. The amendment to Article 8 entered into force in 2012 but more than a decade after its adoption has still only had thirty-nine ratifications. This is a quite pathetic score considering the symbolism of a norm that dates to the earliest codifications of international humanitarian law. The indifference of States, rather than any principled difficulty with the norm, would appear to be the explanation. Occupied territory is an area where the two regimes of armed conflict differ very significantly. Much of the fourth Geneva Convention is devoted to the protection   Standing Committee for Human Rights (CDDH), Committee of Experts for the Development of Human Rights (DH-DEV), Study on Human Rights Protection During Situations of Armed Conflict, Internal Disturbances and Tensions, DH-DEV(2002)001, para. 32. 357  Amendments to Article 8 of the Rome Statute, RC/Res.5, PP 7. 358  C.N.164.2015.TREATIES-XVIII.10.a. 356

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of civilians in occupied territory 359. Obligations of an occupying power are also addressed in the 1907 Hague Convention 360 and Additional Protocol I to the Geneva Conventions 361. All of this law is essentially inapplicable in situations of non-international armed conflict. Occupation of territory is an inherently temporary situation because international law no longer allows States to acquire territory through the use of force followed by annexation. In non-international armed conflict, on the other hand, rebel forces may have entirely legitimate aspirations and enjoy broad popular support. From their standpoint, territory controlled by an insurgent group is “liberated”, not “occupied”. In an international armed conflict, it is quite understandable that special obligations are imposed upon the occupying power. Although many of these obligations may be analogous to those imposed by human rights law on the real government of the territory, there are exceptions that show the fallacy of completely blending the two regimes. Historically, treaty obligations of an occupying power with respect to protected persons in the occupied territory preceded the development of treaty obligations in the same area on the government of the territory in peacetime. For example, the fourth Geneva Convention imposes a total prohibition on the use of capital punishment by the occupying power on protected persons for crimes committed under the age of eighteen 362. The Geneva Convention prohibits an   Geneva Convention (IV) Relative to the Protection of Civilians in Time of War of August 12, 1949, (1950) 75 UNTS 287, Articles 47-78. 360  Convention (IV) Respecting the Laws and Customs of War by Land, [1910] UKTS 9, Annex, Articles 42-56. 361  Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Articles 68-79. 362   Geneva Convention (IV) Relative to the Protection of Civilians in Time of War of August 12, 1949, (1950) 75 UNTS 287, Article 68. William A. Schabas - 978-90-04-52150-6 359

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occupying power from executing such persons even if this is allowed under the laws of the country in peacetime. When the Convention was adopted, in 1949, a significant number of States allowed the imposition of the death penalty in peacetime for such juvenile offenders within their own domestic law. As recently as 1987, the InterAmerican Commission on Human Rights held that there was no customary norm of human rights law prohibiting the execution of persons for crimes committed under the age of eighteen, specifying that the Geneva Convention applied to non-international armed conflict and not to times of “normalcy” 363. This example shows that States have been prepared to recognise standards of treatment of a civilian population within an occupied territory that they may not choose to apply to their own nationals in time of peace. At international criminal tribunals, there has been a tendency to develop the analogy with occupied territory to situations of non-international armed conflict. For example, in the Al Mahdi case at the International Criminal Court, the Prosecutor, the Pre-Trial Chamber and the Trial Chamber all spoke of the “occupation” of Timbuktu by the rebels 364. In Al Hassan, the Pre-Trial   Roach and Pinkerton v. United States, Case 9647, Resolution No. 3/87, Merits, 22 September 1987, para. 56. Fifteen years later, the Commission reversed its position, holding that “the Commission can identify no appropriate justification for applying a more restrictive standard for the application of the death penalty to juveniles in times of occupation than in times of peace, relating as this protection does to the most basic and non-derogable protections for human life and dignity of adolescents that are common to both regimes of international law”. Domingues v. United States, Case 12.285, Report No. 62/02, Merits, 22 October 2002, para. 67. 364   Prosecutor v. Al Mahdi (ICC-01/12-01/15), Version publique expurgée du “Document présentant les conclusions factuelles et juridiques du Bureau du Procureur au soutien du Chef d’accusation dans l’affaire contre Ahmad AL FAQI AL MAHDI” ICC-01/12-01/15-66-Conf, 17 December William A. Schabas - 978-90-04-52150-6 363

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Chamber was slightly more circumspect, noting that the Prosecutor’s use of the term “occupation” was imprecise as it applied to international armed conflict. However, it also said that Timbuktu had been administered by the rebel armed forces where there was no real distinction between civil and military institutions 365. One of the amicus briefs in Ntaganda speaks of this “colloquial use” of the term “occupation” but warns that it gives rise to confusion 366. This may have the consequence of subjecting the rebel forces to more rigorous obligations than those that apply to the government in the portions of the territory that it controls. Insurgent forces that control territory can be prosecuted for acts that are probably not punishable when perpetrated by the government in the territory that it controls. The concern here is that the International Criminal Court, which is supposed to be applying the law in accordance with “the established principles of the international law of armed conflict” may actually be changing those very principles, or deviating from them. “Neutrality” in a conflict is one of the fundamental principles of the Red Cross movement 367. The treaty provisions dealing with non-international 2015, paras. 13, 18, 31-46, etc.; Prosecutor v. Al Mahdi (ICC-01/12-01/15), Decision on the Confirmation of Charges Against Ahmad Al Faqi Al Mahdi, 24 March 2016, paras. 30, 44-5, 50, 54, etc.; Prosecutor v. Al Mahdi (ICC01/12-01/15), Judgment and Sentence, 27 September 2016, paras. 33, 36, 53. 365   Prosecutor v. Al Hassan (ICC-01/12-01/18), Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 13 November 2019, para. 225. 366   Prosecutor v. Ntaganda (ICC-01/04-02/06), Corrected Version of “Amicus Curiae Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence” (18 September 2020) ICC-01/04-02/06-2592, September 2020, p. 3. 367  Hans Haug, Humanity for All: The International Red Cross and Red Crescent Movement, Berne, Stuttgart and Vienna: William A. Schabas - 978-90-04-52150-6

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armed conflict, essentially common Article 3 to the four Geneva Conventions and Additional Protocol II, avoid any suggestion that the law applies differently to the rebels than to the government. Common Article 3 is quite explicit in its application to “each party” to the conflict. It is the same principle that applies in international armed conflict. International humanitarian law insists upon a firewall between the jus ad bellum and the jus in bello. This neutrality with respect to the legitimacy of the combatants is considered essential to the successful application of the law. If one party to a conflict senses that the rules are skewed to the advantage of the other party, it is less inclined to observance 368. At the Special Court for Sierra Leone the initial indictments of the rebel Revolutionary United Front charged its leaders with being part of a “joint criminal enterprise” whose common purpose, plan or design was “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone” 369. Attempting to overthrow the government of Sierra Leone was, of course, against the laws of the country, but it was not an international crime. The Prosecutor was confounding the jus in bello, which was properly within the jurisdiction of the Special Court, with the jus ad bellum, which was not. The Prosecutor later attempted to amend the charge, describing the joint Henry Dunant Institute / Paul Haupt Publishers, 1993, pp. 461-464.  See the examination of his issue by Marco Sassòli and Yuval Shany, “Should the Obligations of States and Armed Groups Under International Humanitarian Law Really Be Equal?”, (2011) 93 International Review of the Red Cross 425; René Provost, “The Move to Substantive Equality in International Humanitarian Law: A Rejoinder to Marco Sassòli and Yuval Shany”, (2011) 93 International Review of the Red Cross 437. 369   Prosecutor v. Sankoh et al. (SCSL-2003-01-I), Indictment, 7 March 2003, para. 27. 368

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criminal enterprises as being to “pillage the resources in Sierra Leone, particularly diamonds, and to control forcibly the population and territory of Sierra Leone” 370. The Trial Chamber concluded that the “joint criminal enterprise” was one intended to take power “through criminal means, including through a campaign of terror and collective punishments” 371. Were the leaders of the Revolutionary United Front being punished for violations of international humanitarian law or was a component of their guilt the fact of trying to overthrow the established regime? In Al Mahdi, the accused was a religious leader who was active in the administration of Timbuktu, in northern Mali, after it fell under the control of a rebel group for several months in 2012. Conforming to their fundamentalist views, the rebels condemned the practice of worship at mausoleums as idolatry. When their entreaties failed, Al Mahdi was ordered to lead a group of followers and destroy the mausoleums. Al Mahdi was convicted by the International Criminal Court for committing the war crime of “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” 372.   Prosecutor v. Sesay et al. (SCSL-04-15-T), Judgment, 2 March 2009, para. 374. 371   Ibid., para. 375. 372  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 (2) (e) (iv). On the Al Mahdi case, see Mark A. Drumbl, “From Timbuktu to The Hague and Beyond: The War Crime of Intentionally Attacking Cultural Property”, (2019) 17 Journal of International Criminal Justice 77; Karolina Wierczynska and Andrzej Jakubowski, “Individual Responsibility for Deliberate Destruction of Cultural Heritage: Contextualizing the ICC Judgment in the Al-Mahdi Case”, (2017) 16 Chinese Journal of International Law 695; Roger O’Keefe, “Cultural Property Protection and the Law of War Crimes”, (2017) 38 NATO 370

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There was no doubt about his responsibility for destroying the structures, which he readily admitted. But the provision in the Rome Statute with which he was charged uses the word “attacks”, a term employed in international humanitarian law to designate military engagements with the enemy. The destruction of the mausoleums, however reprehensible, was a manifestation of the social and religious policies of the regime in power in Timbuktu. In no way could it be considered an “attack” as this term is understood in international humanitarian law. Because Al Mahdi pleaded guilty, he did not contest the very liberal application of the text of Article 8 by the Trial Chamber that, if nothing else, seems inconsistent with the principle of strict interpretation of definitions of crimes that is confirmed in Article 22 (2) of the Statute. The Elements of Crimes for war crimes all specify that “[t]he conduct took place in the context of and was associated with an armed conflict not of an international character” 373. This contextual requirement, commonly known as the nexus, is essential to distinguishing war crimes punishable under international law from ordinary crimes or acts that are not punishable at all under national law. When acts are perpetrated in the conduct of hostilities, or by an occupying power, the nexus is not usually very difficult to establish. However, the destruction of the Timbuktu mausoleums was the work not of an occupying power in an international armed conflict but rather of a rebel group that had seized power in a non-international armed conflict. The word “nexus” does not appear in the confirmation decision or the judgment. In submissions to the Chamber prior to the confirmation hearing, the Legal Gazette 40; William A. Schabas, “El Mahdi Has Been Convicted of a Crime He Did Not Commit”, (2017) 49 Case Western Reserve Journal of International Law 75. 373  Elements of Crimes, ICC-ASP/1/3 and Corr.1, part II.B, Article 8 (2) (e) (iv), War Crime of Attacking Protected Objects, para. 4. William A. Schabas - 978-90-04-52150-6

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Prosecutor set out a detailed argument with respect to the nexus 374. The Prosecutor’s analysis of the nexus issue can be summarised as follows: the “attack” on the structures was undertaken by members of groups that were responsible for military activities in the north of the country; the members of these groups were able to commit the “attack” because they had conquered parts of the north of the country and the city of Timbuktu; the “attack” was supervised by the head of an organisation set up by the armed groups; the apparent motives of the “attack” were the same as those of the armed groups; Al Mahdi’s conduct was “facilitated” by the existence of an armed conflict and motivated by the ideological goals of the armed groups to which he fully subscribed. In Al Mahdi, the Court seems to have assumed that because the armed conflict persisted after the rebel forces had taken control of Timbuktu, essentially everything that the Islamic fundamentalist regime did was enough to satisfy the nexus. Sometimes “rebel” organisations take power peacefully, often through democratic elections. Obviously, then, their acts of public administration, which may amount to serious human rights violations and perhaps even meet the criteria of crimes against humanity, cannot be labelled war crimes or fall within the scope of Article 8 of the Rome Statute. Why should the same acts, when they are the work of an organisation that has taken power by armed means and are perpetrated subsequent to the seizure of the reins of government, lead to prosecutions for war crimes? Their only real relationship with the armed conflict is chronological: they follow the seizure 374

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of power. From that perspective, essentially everything they do in the exercise of authority can be described as a consequence of the conflict and be related to it. Yet the observation that a group may be in a position to do things after it has taken power that it was not previously able to do hardly seems an adequate nexus for war crimes law to apply. Furthermore, to the extent that international humanitarian law is expected to apply symmetrically to both parties in a conflict, could the same crime be attributed to members of the government were they to “attack” structures “dedicated to religion, education, art, science or charitable purposes, historic monuments . . .”? Should war crimes law also extend to the act of a government that demolishes a school (perhaps in order to build a better one), or to the decommissioning of a monument to a slave trader, simply because a non-international armed conflict is underway somewhere in the country? The answer ought to be that there is no nexus. But if there is no nexus when the government does the deed, there should not be one for the rebels either. Similar issues have arisen in the second Timbuktu case at the International Criminal Court, where the head of the Islamic police, Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, was charged with the destruction of the mausoleums. Al Hassan was also accused of other war crimes, including that of “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable” 375. As police chief, although he was obviously not a direct perpetrator in the “passing of sentences”, he was charged as an accomplice. When they 375

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took power in Timbuktu, the rebels established an Islamic court that undertook the trial and punishment of a range of offences including adultery, use of tobacco and sartorial standards considered to be immodest. Punishments could be harsh and included whipping and amputation. The tribunal appears to have lacked appropriate guarantees of independence and impartiality. If the allegations are established, they constitute shocking violations of a range of fundamental human rights. But war crimes 376? Directly addressing the issue of the nexus, the Pre-Trial Chamber said it considered “que les comportements incriminés ont eu lieu dans le contexte de et étaient associés au conflit armé ne présentant pas un caractère international tel que décrit ci-avant, et ce parce que c’est justement le conflit armé qui a placé les auteurs des crimes, provisoirement, dans une position leur permettant de commettre ces crimes, et que ces crimes ont été commis avec le même dessein que le conflit lui-même: instaurer sur un territoire comprenant Tombouctou et sa région un nouvel ordre politique et religieux, et contraindre la population civile à s’y soumettre” 377. At the heart of the nexus, and the international incrimination, is the imposition of a new political and religious order to which the population is required to adhere. Yet the official government in Bamako had its own political and religious order that   See, for example, Shannon Ghadiri, “Criminalising the Denial of a Fair Trial as a Crime Against Humanity”, in Philipp Ambach et al. (eds.), The Protection of NonCombatants During Armed Conflicts and Safeguarding the Rights of Victims in Post-Conflict Society: Essays in Honour of the Life and Work of Joakin Dungel, The Hague: Martinus Nijhoff, 2015, pp. 200-230; Jennifer DePiazza, “Denial of Fair Trial as an International Crime: Precedent for Pleading and Proving it under the Rome Statute”, (2017) 15 Journal of International Criminal Justice 257. 377   Prosecutor v. Al Hassan (ICC-01/12-01/18), Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 13 November 2019, para. 346. 376

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the population in the territory it controlled was also required to respect. Would police chiefs in Bamako be committing war crimes for enforcing the law if the courts in the country were deemed to lack independence and impartiality? Not only did the Pre-Trial Chamber repeat the reasoning in the Al Mahdi case whereby essentially anything the rebels did had a nexus with the non-international armed conflict that had enabled them to seize power, but it also echoed the logic of the Special Court for Sierra Leone in linking the acts to a “common purpose” which was the seizure of power in order to establish a new political and religious order. Again, there is no symmetrical application of the law to the other party in the conflict. The fact that the legal system in a country is unjust, and tribunals lack independence and impartiality, should not lead to punishable war crimes simply because an internal armed conflict has broken out. As for the common criminal plan to overthrow the government and establish a new regime, this is obviously not something that can ever be attributed to those who are already in power. It seems implausible that they be charged with a joint criminal enterprise of trying to retain power. The religious extremists who held power in northern Mali in 2012 do not attract sympathy from those involved in the protection and promotion of international humanitarian law, international human rights law and international criminal law. But legal principles established in dealing with unpopular insurgent groups necessary apply to those for whom there may be greater sympathy. In this context, it is useful to recall that the preamble to the Universal Declaration of Human Rights acknowledges the legitimacy of “recourse, as a last resort, to rebellion against tyranny and oppression” 378. 378

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CHAPTER 4

REFUGEE LAW Like international criminal law, the international protection of refugees can trace its beginnings to the post-First World War period. In 1921 the League of Nations appointed Fridtjof Nansen of Norway, who was then famous as an explorer of the Arctic, to be the High Commissioner for Russian Refugees 379. His authority was later extended to other categories of refugee. The “Nansen passport”, a document issued to facilitate the travel of refugees, is named after him. A number of legal instruments of limited application were developed during the interwar period 380, including the 1933 Convention Relating to the International Status of Refugees 381. In the late 1930s, activities were extended to refugees from Austria and Germany 382. Refugee law is closely linked to the international protection of human rights, although it has developed   Vincent Chetail, “Fridtjof Nansen and the International Protection of Refugees: An Introduction”, (2003) 22 Refugee Survey Quarterly 1. 380  For example, Arrangement with Regard to Issue of Certificates of Identity to Russian Refugees, (1922) 13 LNTS 237; Arrangement of 12 May 1926 Relating to the Issue of Identity Certificates to Russian and Armenian Refugees, (1926) 89 LNTS 49. 381  Convention Relating to the International Status of Refugees, (1933) 159 LNTS 201. 382  Provisional Arrangement Concerning the Status of Refugees Coming from Germany, (1936-1937) 171 LNTS 77; Convention Concerning the Status of Refugees Coming from Germany, (1938) 192 LNTS 61; Additional Protocol to the Provisional Arrangement and the Convention Concerning the Status of Refugees Coming from Germany, (1939) 198 LNTS 142. 379

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into a largely autonomous regime. Indeed, it may be more suitable to speak of “international migration law” as the branch of international law 383, with refugee protection falling within that rubric. Article 14 (1) of the Universal Declaration of Human Rights states that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution” 384. Nevertheless, the International Covenants, which were intended to develop the rights in the Universal Declaration, omit the right of asylum. During the drafting of the Covenants, many States indicated concerns about recognising such a right, arguing that while providing asylum was a desirable objective the details should be left to governments to address 385. Some of the regional human rights treaties have dealt with the right of asylum 386. The principal vehicles for the implementation of the right to asylum within the international legal order are the Convention Relating to the Status of Refugees 387 and the Protocol Relating to the Status of Refugees 388. An agency of the United Nations, the Office of the High  See, for example, the Separate Opinion of Judge Paolo Pinto de Albuquerque describing international migration law as a “scientifically autonomous branch of international law” in De Souza Ribeiro v. France [GC], No. 22689/07, ECHR-2012 VI, Concurring Opinion of Judge Pinto de Albuquerque joined by Judge Vučinić, fn. 10. 384  Universal Declaration of Human Rights, A/RES/217 (III) A, Article 13 (2). 385   Draft International Covenants on Human Rights, Annotations, A/2929, pp. 114-116. 386  American Convention on Human Rights, (1978) 1144 UNTS 123, Article 22 (7); African Charter on Human and Peoples’ Rights, (1986) 1520 UNTS 271, Article 12 (3); Arab Charter on Human Rights, para. 28; Charter of Fundamental Rights of the European Union, OJ C 326/391, Article 18. There is also an African Convention: Convention Governing the Specific Aspects of Refugee Problems in Africa, (1974) 1001 UNTS 45. 387  (1954) 189 UNTS 137. 388  (1967) 606 UNTS 267. 383

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Commissioner for Refugees, is primarily responsible for the administration of these treaties and the promotion of their objectives. 4.1.  Exclusion of war criminals The Moscow Declaration of 1 November 1943, by the United States, the United Kingdom and the Soviet Union, stated that perpetrators of atrocities “will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged . . . [M] ost assuredly the three Allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done” 389. The London Agreement, which set the legal framework for the Nuremberg trial, affirmed that its text was without prejudice to “the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes” 390. The anticipation that perpetrators of atrocities might take flight proved a reality when the war ended. The third resolution adopted by the General Assembly, at its first session in London in January and February 1946, invoked the Moscow Declaration and called upon members of the United Nations “to cause the arrest of those war criminals who have been responsible for or have taken a consenting part in the above crimes, and to cause them to be sent back to the countries in which their abominable deeds were done, in order that they may be judged and punished according to the laws of those countries” 391.  “Declaration of German Atrocities”, 1 November 1943, A Decade of American Foreign Policy: Basic Documents, 1941-49, Washington, DC: US Government Printing Office, 1950, pp. 13-14; FRUS 1943, Vol. I, pp. 768-769. 390  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), (1951) 82 UNTS 279, Article 4. 391  Extradition and Punishment of War Criminals, A/RES/3 (I). 389

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The refugee issue was then at the top of the international agenda, discussed at some length in the first sessions of the Third Committee of the General Assembly, in late January and February 1946. There was concern that war criminals might present themselves as refugees and thereby avoid arrest and prosecution. Yugoslavia explained “how unfortunate it would be if the United Nations became responsible, directly or indirectly, for perpetuating the presence outside their own countries of groups of persons who were either war criminals, in the full sense of the term, or at least hostile to democratic ideas, and therefore to the purposes of the United Nations” 392. The Ukrainian delegate insisted that “war criminals and collaborators could not be classified as refugees, but must be returned to their countries for judgment” 393. Reference was made to the Moscow Declaration of 1943 requiring the return of war criminals to the countries where the crimes took place 394. The Soviet delegate asserted that “all help to war criminals and quislings should stop. Real humanitarianism required that such people should be punished. The very purposes of the United Nations required it” 395. The General Assembly resolution on refugees began by recognising the urgency of dealing with “the problem of refugees and displaced persons of all categories” but also stressed the need to distinguish between genuine refugees and displaced persons on the one hand, and “war criminals, quislings and traitors” on the other. The resolution insisted that it be implemented so as not “to interfere in any way with the surrender and punishment of war criminals, quislings and traitors, in conformity  Third Committee, Summary Record of the Fourth Meeting, 28 January 1946, A/C.3/11. 393  Third Committee, Summary Record of the Sixth Meeting, 1 February 1946, A/C.3/17. 394  Third Committee Summary Record of the Seventh Meeting, 4 February 1946, A/C.3/18. 395   Ibid. 392

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with present or future international arrangements or agreements” 396. In December 1946 the General Assembly adopted the Constitution of the International Refugee Organisation 397. The Constitution specified that the Organisation would not concern itself with “war criminals, quislings and traitors”, persons who “assisted the enemy in persecuting civil populations of countries, Members of the United Nations” and persons who “voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations”. A footnote specified that the “[m]ere continuance of normal and peaceful duties, not performed with the specific purpose of aiding the enemy against the Allies or against the civil population of territory in enemy occupation, shall not be considered to constitute ‘voluntary assistance’. Nor shall acts of general humanity, such as care of wounded or dying, be so considered except in cases where help of this nature given to enemy nationale could equally well have been given to Allied nationals and was purposely withheld from them” 398. The right of asylum was included in the early drafts of the Universal Declaration of Human Rights. In 1947 a submission to the Commission on Human Rights from the Preparatory Commission for the International Refugee Organisation welcomed the attention being given to the refugee issue. It made the rather extreme suggestion that the draft declaration specify “that the right of asylum shall not be granted to political refugees whose opinions are inconsistent with the aims and objects of the United Nations” 399. The final text of the Declaration adopted  Question of Refugees, A/RES/8 (I).  Refugees and Displaced Persons, A/RES/62 (I).   Constitution of the International Refugee Organisation, (1948) 18 UNTS 3, Annex I, Part II, paras. 1-2. 399  [Statement from the Preparatory Commission of the International Refugee Organisation], E/CN.4/41, 1 December 1947, p. 4. 396 397 398

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by the General Assembly specifies that the right of asylum may not be invoked “in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations” 400. The provision appears to suggest that there must already be a “prosecution”, thereby linking the limitation on a right of asylum to actual criminal justice proceedings. It does not contemplate war criminals as such although they are presumably subsumed within the notion of perpetrators of “acts contrary to the purposes and principles of the United Nations”. The Statute of the Office of the High Commissioner for Refugees, adopted in 1950, states that the competence of the High Commissioner does not extend to persons “[i]n respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in Article VI of the London Charter of the International Military Tribunal or by the provisions of Article 14, para. 2, of the Universal Declaration of Human Rights” 401. A similar provision appeared in the draft Convention on the Statute of Refugees, adopted at the same time by the General Assembly 402. At the Diplomatic Conference where the final text of the Convention was negotiated the following year, Germany proposed replacing the reference to the London Charter with one to the grave breach provisions of the Geneva Conventions, the Genocide Convention and the definition of crimes  Universal Declaration of Human Rights, A/RES/217 (III) A, Article 14 (2). See Sibylle Kapferer, “Article 14 (2) of the Universal Declaration of Human Rights and Exclusion from International Refugee Protection”, (2008) 27 (3) Refugee Survey Quarterly 53. 401   Statute of the Office of the United Nations High Commissioner for Refugees, A/RES/428 (V), Annex, para. 7 (d). 402  Draft Convention on the Status of Refugees, A/RES/429 (V), Annex, Article 1 (E). 400

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against peace in the London Charter 403. Germany, which was a not a Member State of the United Nations, had sent a delegation to the Conference in its first participation at the international level since Hitler’s withdrawal from the League of Nations. The German delegate explained that the purpose was not to alter the substance of the clause but merely to use “more appropriate references”. He said that the London Charter had been approved “by a limited number of States which had taken part in the last war, and a considerable number of States attending the present Conference had not signed it or taken position on it”. He said the government of the Federal Republic of Germany agreed that all war criminals should be deprived of the benefits of the Refugee Convention “but could not subscribe to an express reference to the Charter of the International Military Tribunal” 404. Jacob Robinson, representing Israel, challenged the analysis by the German delegate, noting that the proposed amendment would narrow the scope of the clause, in particular with respect to crimes against humanity 405. An NGO delegate representing the Consultative Council of Jewish Organisations warned that although “deletion of the reference at the present time would not, of course, affect the crystallisation of the principles as a set of rules of general international law; but it would be taken as a mark of disapproval of those principles and as a denial of their validity” 406.  Federal Republic of Germany, Amendment to Article 1, A/CONF.2/76. 404  Summary Record of the Nineteenth Meeting, 13 July 1951, A/CONF.2/SR.19, p. 26. See also Summary Record of the Twenty-Fourth Meeting, 17 July 1951, A/CONF.2/SR.26, pp. 6-8. 405  Summary Record of the Twenty-Fourth Meeting, 17 July 1951, A/CONF.2/SR.24, pp. 14-16. 406   Summary Record of the Twenty-First Meeting, 14 July 1951, A/CONF.2/SR.21, pp. 7-11. 403

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A working group composed of representatives of France, the United Kingdom, Germany and Israel was struck to study the provision. The group’s very laconic report proposed a text drafted by the United Kingdom that removed mention of any specific instruments 407. Israel was unhappy with the result, and recorded its objections after the British text had been adopted by the plenary conference 408. In his report to the Foreign Ministry following the Conference, Robinson explained that Germany’s objection was accepted by “practically all delegations” and that they were willing “to buy German participation” by deleting mention of the Charter 409. The final text reads as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . . .” 410. Article I (F) (a) of the Refugee Convention has been described as “a point of convergence between refugee law, human rights law and international humanitarian law” 411.  Report of the Working Group Appointed to Study Section E of Article I of the Draft Convention Relating to the Status of Refugees, A/CONF.2/92. 408  Summary Record of the Twenty-Ninth Meeting, 19 July 1951, A/CONF.2/SR.29, pp. 9-11. 409   Robinson to Director-General, Fourth and Final Report on the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Geneva, 1 August 1951, FM-19/10, Israel State Archive (ISA), p. 8. On Robinson’s role in negotiation of the Convention, see generally Rotem Giladi, “A ‘Historical Commitment’? Identity and Ideology in Israel’s Attitude to the Refugee Convention 1951-4”, (2015) 37 International History Review 745. 410  Convention on the Status of Refugees, (1954) 189 UNTS 137, Article I (F) (a). 411  Michiael Kingsley Nyinah, “Exclusion under Article 1F: Some Reflections on Context, Principles and Practice”, 407

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It is striking that at the Diplomatic Conference where the Refugee Convention text was finally negotiated there was such willingness to accommodate Germany’s concerns on this sensitive issue, especially given that its proposal was so opposed by Israel and by the Jewish NGOs. In 1951 the Federal Republic of Germany was still not even an observer State in the United Nations General Assembly. Perhaps this was a manifestation of a general tendency, particularly in the United Kingdom, to de-emphasise the prosecution of war crimes in the interests of rapprochement and reconciliation with Germany. Were the Refugee Convention to be negotiated today, it seems implausible that Germany, which now takes great pride in the work of the International Military Tribunal, would manifest the same discomfort about a reference to the London Charter that it did in 1951 412. One of the eminent commentators on the Convention, Atle Grahl Madsen, suggested that the reference to “international instruments” in Article I (f) (a) was intended to encompass the work of the International Law Commission on its Code of Crimes Against the Peace and Security of Mankind 413. At the time the Convention was adopted, the International Law Commission had just adopted the first draft of its Code of Offences 414. But the (2000) 12 International Journal of Refugee Law (special issue) 295, at p. 298. 412  See for example the remarks of Hans-Peter Kaul, head of the German delegation to the 1998 Rome Conference, A/CONF.183/C.1/SR.7, para. 58. Also the statement of the German Democratic Republic submitted to the International Law Commission, 10 May 1982, paras. 5-6, A/CN.4/358/ Add.2. 413  Atle Grahl-Madsen, The Status of Refugee in International Law, Vol. I, Leiden: Nijhoff, 1966, p. 276. 414  Report of the International Law Commission Covering the Work of its Third Session, 16 May-27 July 1951, A/1858, paras 54-59. William A. Schabas - 978-90-04-52150-6

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travaux préparatoires provide no evidence in support of Grahl Madsen’s contention. Moreover, there is nothing to suggest that the drafters intended for the provision to apply to future developments in international criminal law. The drafters of the Convention did not turn their minds to the development of new international criminal law instruments that would enlarge the existing definitions. This may be explained by the fact that Convention itself was not intended to apply prospectively, and was limited to persons who had become refugees prior to 1 January 1951 415. There would be no reason for them even to give consideration to the possible progressive development of international criminal law. The temporal application of the Convention was changed by the 1967 Protocol so that it would apply prospectively, but it does not appear that any attention was given to the exclusion clause and the notion of “international instruments” when that text was being negotiated. For several decades, the war crimes exclusion clause 416 was rarely applied and generated little interest  . Attention to the exclusion clause on international crimes grew rather dramatically in the mid-1990s. There can be little doubt that this was associated with the more general revival of international criminal law as well as the growing focus on accountability within the human rights movement. As had been the case in the immediate post-Second World War period, excluding war criminals was increasingly viewed not only as a means to ensure the integrity of refugee determination but also as a mechanism to address impunity. It was a technique

 Convention on the Status of Refugees, (1954) 189 UNTS 137, Article I (A) (2). 416   Jennifer Bond, “Excluding Justice: The Dangerous Intersection between Refugee Claims, Criminal Law, and ‘Guilty’ Asylum Seekers”, (2012) 24 International Journal of Refugee Law 37, at p. 40. 415

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of enforcing criminal law but without the stringent requirements of a criminal trial 417. As this renaissance of international criminal law was beginning, the Handbook on Procedures and Criteria for Determining Refugee Status issued by the High Commissioner for Refugees, published in 1992, explained that “the most comprehensive definition” of crimes against peace, war crimes and crimes against humanity was to be found in the London Charter 418. The High Commissioner for Refugees did not appear to anticipate the phenomenal development of international criminal law that would take place over the next halfdozen years, culminating in the adoption of the Rome Statute on 17 July 1998. Nevertheless, the High Commissioner proposed a somewhat dynamic approach to Article I (f) (a), noting that “[t]here are a considerable number of such instruments dating from the end of the Second World War up to the present time”. A list of them was provided in an Annex to the Handbook that included two post-1951 treaties, the 1968 Convention of the Non-Applicability of Statutory Limitations of War Crimes and Crimes Against Humanity and the Additional Protocol I to the Geneva Conventions, adopted in 1977 419. In 1992 the 1968 Convention had only twentyseven ratifications (it now has fifty-six). It defined war crimes solely with regard to the London Charter and the Geneva Conventions. But for crimes against humanity, the Convention offered a progressive interpretation,   Joseph Rikhof, “War Criminals Not Welcome; How Common Law Countries Approach the Phenomenon of International Crimes in the Immigration and Refugee Context”, (2009) 21 International Journal of Refugee Law 453, at p. 454. 418   Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/ REV.1, para. 150. 419   Ibid., Annex VI. 417

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declaring that they would be committed “in time of war or in time of peace”, and adding that they also encompassed “eviction by armed attack or occupation and inhuman 420 acts resulting from the policy of apartheid”  . The implication of the High Commissioner’s Handbook was that Article I (f) (a) should be applied bearing in mind new international instruments adopted subsequent to the Refugee Convention itself. In 1996, apparently for the first time, the High Commissioner for Refugees attempted a proper analysis of the exclusion clauses including the one applicable to war crimes, issuing “Guidelines on their Application”. She added several instruments to the list that had appeared in the 1992 edition of the Handbook: the International Convention on the Suppression and Punishment of the Crime of Apartheid; the Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity; the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment; and the torture conventions of the InterAmerican and European regional human rights systems. She also referred to the work of the International Law Commission as a “non-binding source”, making specific reference to the Commission’s 1950 Report and the 1991 version of the draft Code of Crimes Against the Peace and Security of Mankind 421. The Guidelines also referred to the statutes of the ad hoc tribunals recently established by the Security Council and the draft statute of the international criminal court issued the International Law Commission in 1994.  Convention of the Non-Applicability of Statutory Limitations of War Crimes and Crimes Against Humanity, (1970) 754 UNTS 73, Article 1. 421  The Exclusion Clauses: Guidelines on their Application, December 1996, UNHCR/IOM/83/96-FOM/93/96. 420

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These “Guidelines”, meant to assist officials on the ground, could only amount to a source of confusion. The torture conventions define international crimes, but they do not define crimes against peace, war crimes or crimes against humanity, the three categories set out in Article I (f) (a) of the Refugee Convention. The Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, adopted in 1973 by the General Assembly, do not offer any definitions 422. And why would the High Commissioner cite the controversial draft Code of 1991 rather than the final version adopted by the International Law Commission in 1996 423, six months before the “Guidelines” were published? Nor could the draft statute of the Commission adopted in 1994 be of much help since it eschewed formulating definitions of the crimes, pointing to “unresolved issues” 424. In 1997 the Standing Committee of the High Commissioner for Refugees issued a Note on the Exclusion Clauses. The Council observed that the London Charter was the original source for the war crimes exclusion clause. It also referred to more recent instruments including the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, and the draft statute of the international criminal court, which was presumably a reference to the 1994 International Law  Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, A/RES/3074 (XXVIII). 423  Report of the International Law Commission on the Work of its Forty-Eighth Session (6 May-26 July 1996), A/51/10, paras. 30-50. 424  Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May-22 July 1994), A/49/10, pp. 38-42. 422

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Commission draft 425. It made the strange observation that “[s]ome excludable crimes may fall under more than one category, such as genocide, which can be considered both a war crime and a crime against humanity” 426. Referring to crimes against peace, it said that “excludable persons under this Article must represent States or State-like entities in the context of international armed conflicts”, which seems a rather muddled reference to the notion that prosecution of the crime of aggression is reserved to persons in a position of leadership 427. As for crimes against humanity, the Council said they were “characterised by their deliberate and targeted nature, by their especially heinous nature”, notions that may have some colloquial resonance but that have never appeared in the law and that might seem to approximate the requirement that the punishable acts be perpetrated in the context of a widespread or systematic attack on a civilian population 428. In one sense, the Note of the Standing Committee acknowledged the important developments that were underway. But its amateurish discussion also manifested a real confusion about the substance of the changes that were underway. A more detailed discussion of the exclusion clauses was produced as a “Background Note” by the Office of the High Commissioner for Refugees, issued in 2003 429. It proposed a “dynamic interpretation” of international criminal law that took into account a range of modern  Note on the Exclusion Clauses, EC/47/SC/CRP.29, 30 May 1997, para. 8. 426   Ibid. 427   Ibid., para. 9. 428   Ibid., para. 11. 429   “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees – Protection Policy and Legal Advice Section, Department of International Protection, Geneva, 4 September 2003”, (2003) 15 International Journal of Refugee Law 502. 425

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legal instruments, including the Rome Statute of the International Criminal Court and the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, as well as texts adopted by the International Law Commission such as the Nuremberg Principles of 1950 and the draft Code of Crimes of 1996 430. The Handbook on Procedures and Criteria for Determining Refugee Status issued by the High Commissioner for Refugees has been revised and amended over the years. The references to Article I (f) (a) in the latest edition, published in 2019, have changed very little since 1992. The indication that “the most comprehensive definition” of crimes against peace, war crimes and crimes against humanity is to be found in the London Charter remains 431. Obviously, it is woefully outdated. The Annex listing the relevant instruments is slightly longer, now including the Rome Statute and the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, but not the Statute of the Special Court for Sierra Leone or the Malabo Protocol. It also adds Additional Protocol II to the Geneva Conventions, although the reference will puzzle immigration judges who may lack a sophisticated grasp of international criminal law, as there is no mention in that instrument of crimes against peace, war crimes or crimes against humanity 432. It ought to have explained that the 2010 amendments on the crime of aggression provide a modern definition of crimes against peace, the term that was used at Nuremberg and that appears in Article I (F) (a) of the Refugee Convention. National courts appear to have had few qualms about adopting a dynamic interpretation of the reference to   Ibid., paras. 23-25.   Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/1P/4/ ENG/REV. 4, para. 150. 432   Ibid., Annex VI. 430 431

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“international instruments” in Article I (F) (a) of the Refugee Convention. The United Kingdom Supreme Court has relied upon the Rome Statute, “standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it)” 433. The Federal Court of Canada held that “[b]y not identifying the ‘international instruments’, the authors of the Convention ensured that the definitions of crimes, the sources of exclusion, would not be fixed at any point in time” 434. There is another temporal problem, however, to the extent that new definitions are applied to events prior to their adoption. For example, the Federal Court of Canada applied the Rome Statute definition of crimes against humanity to a participant in acts perpetrated by the Iranian regime in the 1970s without considering whether the scope of the category might have evolved since that time 435. The exclusion clause governing war criminals in the Refugee Convention provides a fascinating example of a treaty provision belonging to one branch of international law whose application and interpretation is influenced by changes in another branch of international law. Legislating by reference is not an uncommon practice in domestic legal systems, where legal hierarchies and principles to deal with conflicts have developed over time 436. A problem with the provision in the Refugee   R (on the application of JS) (Sri Lanka) (Respondent) v. Secretary of State for the Home Department (Appellant), [2010] UKSC 15, para. 9 (per Lord Brown). 434   Ibid. 435   Pourjamaliaghdam v. Canada (Minister of Citizenship and Immigration), [2011] FC 666, para. 23. 436   Advisory Opinion Concerning the Use of the “Blanket Reference” or “Legislation by Reference” Technique in the Definition of an Offence and the Standards of Comparison Between the Criminal Law in Force at the Time of the 433

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Convention at the international level is that there may be more than one source of “international instruments”, and the texts may not be entirely aligned. For example, there are many definitions of crimes against humanity in international legal instruments, and they have significant differences 437. The various documents of the High Commissioner for Refugees, which are intended to assist those who apply the Convention, refer to instruments that actually vary significantly in their definitions of crimes against humanity. They point not only to the London Charter but also to the work of the International Law Commission, a body that has changed its mind about the scope of crimes against humanity on several occasions 438. The High Commissioner for Refugees has also referred to the crime of genocide as defined in the 1948 Convention, treating it as being subsumed within crimes against humanity 439. But while the definition of Commission of the Offence and the Amended Criminal Law [GC], No. P16-2019-001, 29 May 2020. 437  Compare, for example, Article 7 of the Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, with Article 5 in the Annex of the Statute of the International Criminal Tribunal for the former Yugoslavia, S/RES/827 (1993). 438  Compare the Report of the International Law Commission Covering its Second Session, 5 June-29 July 1950, A/1316, paras. 120-124; Report of the International Law Commission Covering the Work of its Third Session, 16 May-27 July 1951, A/1858, para. 59; Report of the International Law Commission Covering the Work of its Sixth Session, 3 June28 July 1954, A/2693, para. 50; Report of the International Law Commission on the Work of its Forty-Third Session (29 April-19 July 1991), A/46/10, para. 176; Report of the International Law Commission on the Work of its FortyEighth Session (6 May-26 July 1996), A/51/10, para. 50; Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, para. 44. 439   “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the William A. Schabas - 978-90-04-52150-6

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genocide is essentially identical in the modern instruments with what appears in the 1948 text, the Elements of Crimes of the Rome Statute provide for an element of the crime, the “manifest pattern”, which is not explicit in the Convention definition. Is this additional element required by Article I (F) (a) of the Refugee Convention? The Rome Statute itself provides an example of this practice in an international treaty by linking the crime against humanity of persecution to “other grounds that are universally recognised as impermissible under international law”, to the extent that the provision is applied with reference to human rights law on the subject of equality as it evolves to recognise new categories of prohibited discrimination 440. This makes for an intriguing potential linkage between three branches of international, where a definition of crimes against humanity in the Rome Statute results from changes in international human rights law and consequently broadens the scope of the war crimes exclusion clause in the Refugee Convention. Another feature of this interaction between the two branches of international law is that the expansion of international criminal law has as a consequence the reduction of refugee protection. In 1951, the Refugee Convention would not have excluded from protection persons suspected of involvement in atrocities in peacetime, other than the crime of genocide, or in non-international armed conflict. Even in international armed conflict, acts like the recruitment and active use of child soldiers were not punishable at the time. Those perpetrating such crimes would not have been vulnerable to loss of protection under the Refugee Convention. As Status of Refugees – Protection Policy and Legal Advice Section, Department of International Protection, Geneva, 4 September 2003”, (2003) 15 International Journal of Refugee Law 502, para. 35. 440  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 7 (1) (h). William A. Schabas - 978-90-04-52150-6

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a general rule, the protections of fundamental human rights have tended to expand in a variety of ways over the decades, and that observation should also be true for international refugee law. But where the exclusion clauses may apply, the growth of international criminal law has also expanded the categories of those who are excluded. Article I (F) (a) of the Refugee Convention applies to those for whom there are “serious reasons for considering” that they have “committed” international crimes. International criminal law has little to contribute to an understanding of the “serious reasons” standard of proof, which must lie somewhere between the more familiar concepts of “reasonable grounds to believe” and “beyond a reasonable doubt”. On the other hand, the term “committed” often lies at the heart of disputes about guilt and innocence. The problem arises not with the actual physical perpetrators of an international crime but rather with those who may contribute, as accomplices, which some legal systems treat as “secondary” liability. Difficulties arise when the principles developed by international criminal tribunals are applied to refugee determinations. The former tend to be focussed on “those who bear the greatest responsibility”, who are at or near the apex of large-scale atrocities. The latter, on the other hand, will often be at or near the bottom of the pyramid of criminality. For these low-level “accomplices”, the very serious penalty of denial of refugee protection may be a severe punishment that does not fit the crime. International criminal law provides a degree of guidance by outlining possible defences to international crimes. For example, the Rome Statute recognises a defence of duress where individuals commit punishable acts while themselves threatened with imminent death or serious bodily harm 441. It also allows for a defence 441

 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 31 (1) (d). William A. Schabas - 978-90-04-52150-6

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of superior orders under certain circumstances, where 442 the orders are not manifestly unlawful  . Perhaps more importantly, these excusing circumstances are also relevant in determining the appropriate penalty 443. Judges can address some of the harsh consequences of a conviction at the sentencing phase of a criminal trial. However, there is no room for nuance in the application of Article I (F) (a) of the Refugee Convention. There is only a Manichean choice between asylum and a risk of persecution, as the Supreme Court of Canada noted in an important judgment on the subject 444. The Court examined the notion of common purpose liability as defined in Article 25 (3) (d) of the Rome Statute. This provision, three years before it actually entered into force, had influenced the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia when it adopted the controversial “joint criminal 445 enterprise” theory of participation  . The Canadian Supreme Court noted that this was at the low end of liability because of the “lesser contributions” to the actual crime 446. It said it was necessary “to firmly foreclose exclusions based on such broad forms of complicity”. The concern, said the Court, was that highranking officials might abandon legitimate duties during times of conflict and national instability so as to preserve their eligibility for asylum. Furthermore, said the Court, concepts of complicity that allow for guilt by association

  Ibid., Article 33.  Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr.1, part II.A, Rule 145 (2) (a) (i). 444   Ezokola v. Canada, [2013] 2 SCR 678, para. 2. 445   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 220. See Mohamed Elewa Bader, “ ‘Just Convict Everyone!’ – Joint Perpetration: From Tadić to Stakić and Back Again”, (2006) 6 International Criminal Law Review 293. 446   Ezokola v. Canada, [2013] 2 SCR 678, paras. 55, 63. 442 443

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or passive acquiescence violate fundamental criminal law principles 447. 4.2.  International crimes, population transfer and refugee flows Under the 1951 Convention, a refugee is defined as a person who has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. The term “persecuted” recalls the crime against humanity of “persecution” defined in Articles 7 (1) (h) and 7 (2) (g) of the Rome Statute. The terms in the two branches of law do not have an identical meaning although they surely overlap to some extent. International criminal law mainly deals with the phenomenon of refugee flows by criminalising the forced displacement of populations, as some recent rulings of the International Criminal Court bear out. Article 7 (1) (d) of the Rome Statute of the International Criminal Court lists the “deportation or forcible transfer of population” as a crime against humanity. Article 7 (2) (d) says that this term “means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”. The Elements of Crimes complete the definition by specifying that “deported or forcibly transferred” is interchangeable with “forcibly displaced”, and that the victims must be “lawfully present in the area from which they were so deported or transferred”. Furthermore, the 447

  Ibid., para. 81. See Jennifer Bond, Nathan Benson and Jared Porter, “Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law”, (2020) 39 Refugee Survey Quarterly 1; L. Zilli, “Ezokola v. Canada: The Correct Place of International Criminal Law in International Refugee Law Making”, (2014) 12 Journal of International Criminal Justice 1217. William A. Schabas - 978-90-04-52150-6

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term “forcibly” is not restricted to “physical force” but may also include the “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”. In international armed conflict, the war crime of “unlawful deportation or transfer” defined in Article 8 (2) (a) (vii) requires the deportation or transfer “to another State or to another location”. There is also a more specific offence of “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” 448. The origins of the offences can be traced to the London Charter where deportation was both a war crime and a crime against humanity. The war crimes provision required explicitly that deportation be conducted for the purpose of slave labour “or for any other purpose”. The charges and convictions associated the deportations with both enslavement, in the case of workers sent to Germany, and extermination, for Jews who were sent to the camps in Central and Eastern Europe where they were murdered. The International Military Tribunal found that Von Ribbentrop, Kaltenbrunner, Frick, Von Schirach and Seyss-Inquart were guilty with respect to deportations of Jews from Italy, Hungary and other countries, associating these population transfers with their ultimate purpose which was extermination 449. Frank, Rosenberg, Funk, Saukel and Speer were convicted for deportations from “the East” to Germany where the victims were  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 (2) (b) (viii). 449   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1949) I IMT 171, pp. 287, 293, 301, 328-329. 448

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enslaved 450. To that extent, none of the victims were “refugees” fleeing persecution, as the term is understood today, but rather persons who were forcibly moved from one country to another with the objective of perpetrating another crime in the Charter. Deportations for the purpose of slave labour were also dealt with in some of the subsequent proceedings 451. Following the Second World War, the victorious Allies engaged in some forced population transfer of ethnic German populations who were moved from areas in Poland and the Soviet Union for resettlement in West Germany. Article XII of the 1945 Potsdam Protocol said this was to be conducted “in an orderly and humane manner”, although in practice it was associated 452 with much human suffering  . Other post-Second World War treaties required the compulsory transfer of Hungarians 453. Those subject to the post-war deportations were not refugees either, but their circumstances seem closer to the notion because they were being moved from a territory rather than to a territory for another criminal purpose. The Potsdam Protocol and the forced transfers of population that resulted haunted the negotiations of   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1949) I IMT 171, pp. 296, 297298, 306, 319, 322, 332. 451   United States v. Milch, Opinion and Judgment, 17 April 1947, (1949) 2 TWC 773, at pp. 790, 865-866 (Concurring Opinion by Judge Fitzroy D. Phillips); United States v. Krupp et al., Judgment, 31 July 1948, (1949) 9 TWC 1327, at pp. 1429-1433. 452  Potsdam Agreement, Protocol of the Proceedings, 1 August 1945, Committee on Foreign Relations, and United States Department of State, A Decade of American Foreign Policy: Basic Documents, 1941-49, Washington, DC: US Government Printing Office, 1950, pp. 34-50, Article XII. 453  Alfred De Zayas, “International Law and Mass Population Transfers”, (1975) 16 Harvard International Law Journal 207, at pp. 225-226. 450

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the Genocide Convention. The definition of genocide proposed in the Secretariat draft of the Convention made a point of specifying that it required the intentional “destruction” of the protected group, adding that “certain acts which may result in the total or partial destruction of a group of human beings are in principle excluded from the notion of genocide, namely, international or civil war, isolated acts of violence not aimed at the destruction of a group of human beings, the policy of compulsory assimilation of a national element, mass displacements of population” 454. In the Sixth Committee, Syria proposed an amendment to add a punishable act to the definition: “Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment” 455. To justify the proposal, the Syrian delegate referred to “[t]he problem of refugees and displaced persons”, which he said “had arisen at the end of the Second World War and remained extremely acute” 456. Several delegations argued that the provision was outside the scope of genocide. The Syrian amendment was defeated by twenty-nine votes to five, with eight abstentions 457. Rejection of the Syrian amendment has been cited in case law to explain why certain acts of “ethnic cleansing” fall outside the definition of genocide in the Convention 458.

 Draft Convention on the Crime of Genocide, E/447, p. 23 (emphasis added).  Syria: Amendment to Article II, A/C.6/234. 456  Sixth Committee, Summary Record of the Eighty-Second Meeting, 23 October 1948, Official Records of the General Assembly, 1948, pp. 182-191, at p. 184. 457   Ibid., p. 186. 458   Prosecutor v. Stakić (IT-97-24-T), Judgment, 31 July 2003, para. 519; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, para. 190. 454 455

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The post-war population transfers attracted the attention of the Institut de droit international. Giorgio Pallieri, writing as a rapporteur, said the population transfers authorised by the Potsdam Protocol were “un cas particulier et exceptionnel” that could be justified as a form of retribution: “Il fallait réparer les torts qu’ils avaient causés et, à cette fin, il fallait faire usage contre eux des mêmes méthodes qu’ils avaient employées” 459. Several eminent members of the Institut at the time thought compulsory transfers of populations were justifiable under certain circumstances and that they could not be prohibited by new norms such as the right of everyone to remain in one’s own country that had been set out in the Universal Declaration of Human Rights 460. For example, Jean Spiropoulos wrote that “[l]a Déclaration des droits de l’homme n’est pas, à l’heure actuelle, un obstacle à la conclusion d’accords relatifs à un transfert de populations, étant donné que cette Déclaration, d’après son propre préambule, ne représente qu’un idéal à atteindre et non pas un texte obligatoire” 461. Only one member of the Institut, Georges Scelle, was unequivocal in his opposition to the practice of compulsory population transfer. He said any population transfer agreement between States was prohibited “de façon absolue” by the Universal Declaration and, moreover, with an apparent nod to the still nascent concept of jus cogens, he said any such accords would be “radicalement nuls” 462.  Giorgio Pallieri, “Les transferts internationaux de populations, Rapport”, 44 Annuaire de Institut de droit international, Vol. II (1952), pp. 138-150, at p. 146. 460  “Observations de membres de la 4me Commission sur le rapport et Réponses au Questionnaire”, 44 Annuaire de Institut de droit international (1952), Vol. II, pp. 153-193. 461   “Réponse de M.J. Spiropoulos au Questionnaire”, 44 Annuaire de Institut de droit international, Vol. II (1952), pp. 186-187. 462   “Observations de M. Georges Scelle”, 44 Annuaire de Institut de droit international, Vol. II (1952), pp. 176-180. 459

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Potsdam was not the first time in modern history that population transfers had been authorised by international treaty. The 1923 Convention Concerning the Exchange of Greek and Turkish Populations, adopted in Lausanne, provided for “a compulsory exchange of Turkish nationals of the Greek Orthodox religion established in Turkish territory, and of Greek nationals of the Moslem religion established in Greek territory. These persons shall not return to live in Turkey or Greece respectively without the authorisation of the Turkish Government or of the Greek Government respectively” 463. At the time many viewed this as a despicable precedent. Lord Curzon, the British foreign minister, said it was “a thoroughly bad and vicious solution for which the world will pay a heavy penalty for a hundred years to come” 464. The fourth Geneva Convention includes “unlawful deportation or transfer or unlawful confinement of a protected person” in the grave breaches provision. The Commentary on the Convention published by the International Committee of the Red Cross explains that it was necessary to prohibit deportation completely due to “[t]he unhappy experiences of the Second World War”. The only exception is “cases where the safety of the protected persons may make them absolutely necessary”. The Committee explained that because the acts of coercion were exercised by the authorities, the deportations were not necessarily criminal acts under  Convention Concerning the Exchange of Greek and Turkish Populations, (1923) 32 LNTS 76, Article 1. 464   “Minutes of the Fourteenth Meeting of the Territorial and Military Commission, December 13, 1922”, Turkey No. 1 (1923). Lausanne Conference on Near Eastern Affairs 1922-1923. Records of Proceedings and Draft Terms of Peace, Cmd. 1814, London, 1923. Cited in Alfred De Zayas, “International Law and Mass Population Transfers”, (1975) 16 Harvard International Law Journal 207. 463

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ordinary law. For this reason, it was necessary that they be codified as grave breaches 465. The International Criminal Tribunal for the former Yugoslavia treated deportation as more of a standalone crime, in that the purpose of transferring the population was “ethnic cleansing” rather than another crime to be perpetrated at the ultimate destination, such as enslavement or extermination 466. In the post-Second World War prosecutions, the victims of deportation were not fleeing persecution; they were deliberately transferred from one place to the other for the purpose of slave labour or extermination. In the 1990s the focus had shifted completely in the way the crime was understood. The perpetrator of the deportation was indifferent as to the situation of the victim once the deportation had taken place. The essence of the crime had become linked to the fundamental human right, set out in Article 13 of the Universal Declaration of Human Rights, of freedom of movement and residence within the borders of each State, and the right of everyone “to leave any country, including his own, and to return to his country”. According to judgments of the International Criminal Tribunal for the former Yugoslavia, the “protected interests” underpinning the prohibition against deportation “include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location” 467. It protects   Jean S. Pictet et al. (eds.), Commentary, IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva: International Committee of the Red Cross, 1958, p. 599. 466   Prosecutor v. Stakić (IT-97-24-A), Judgment, 22 March 2006, paras. 278, 317; Prosecutor v. Krajišnik (IT-0039-A), Appeal Judgement, 17 March 2009, paras 304, 308. 467   Prosecutor v. Stakić (IT-97-24-A), Judgment, 22 March 2006, para. 277. Also Prosecutor v. Tolimir (IT-05-88/2-T), Judgment, 12 December 2012, para. 797.

465

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against “the uprooting and destruction of communities by an aggressor or occupant of the territory in which they reside” 468. The International Criminal Court has developed this logic still further, noting that in addition to “the right of individuals to live in their area of residence”, the legal interest protected by the crime of deportation “further extends to the right of individuals to live in the State in which they are lawfully present” 469. Explaining the rejection of a submission alleging the crime against humanity of deportation committed when individuals were transferred from Cambodia and Tajikistan, both of them States parties, to China, which is not a State party, the Prosecutor of the International Criminal Court said that while this might “raise concerns” about violations of international human rights law and international refugee law, such acts did not appear to fall within her jurisdiction because “the crime of deportation is associated with a particular protected legal interest and purposive element” 470. From the standpoint of refugee law, the war crime and crime against humanity of deportation stand as the cause of the refugee flow. Evidence of the “coercion” that is the cause of the deportation will be similar to or the same as the evidence of “persecution” that entitles the victim to claim refugee status in the State of asylum. Discussing the elements of the crime against humanity of deportation, a Pre-Trial Chamber of the International Criminal Court said that “the victims’ ” behaviour or   Prosecutor v. Stakić (IT-97-24-T), Judgment, 31 July 2003, para. 681; Prosecutor v. Popović et al. (IT-05-88-T), Judgment, 10 June 2010, para. 900. 469  Request under Regulation 46(3) of the Regulations of the Court, (ICC-RoC46(3)-01/18), Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19 (3) of the Statute”, 6 September 2018, para. 58. 470   Office of the Prosecutor, Report on Preliminary Examinations 2020, 14 December 2020, paras. 74-75. 468

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response as a consequence of coercive environment is required to be established for the completion of the crime 471.

471

  Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 52. William A. Schabas - 978-90-04-52150-6

CHAPTER 5

HUMAN RIGHTS LAW AND INTERNATIONAL CRIMINAL LAW International human rights law and international criminal law both emerged at about the same time, in the seminal periods of legal development following the two world wars. For a time, during the Cold War, their paths seemed to bifurcate. Human rights made modest progress, slowly gathering momentum during the 1950s and 1960s, while international criminal law went into hibernation. As Samuel Moyn has explained, international human rights law only began to thrive in the late 1970s 472. International criminal law was not far behind. Indeed, its revival in the 1990s owes much to paradigmatic changes in the vision of international human rights by which criminal prosecution took on a role as a mechanism of enforcement rather than, as it had been largely viewed previously, a source of violations. The relationship between the two should be easy to grasp. Both areas of law, the protection of human rights and the accountability of individuals for wrongful conduct, had existed within national justice systems for many decades if not centuries. But they had been viewed as matters that were of exclusively domestic concern, well beyond the scope of international law. Slowly, relatively late in the nineteenth century, some green shoots became visible at the international level. In 1878 the Congress of Berlin recognised the independence of Serbia subject to certain human rights guarantees and certain human 472

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rights obligations. The Treaty of Berlin specified that “[t] he freedom, and outward exercise of all forms of worship shall be assured to all persons belonging to Servia, as well as to foreigners, and no hindrance shall be offered either to the hierarchical organisation of the different communions, or to their relations with their spiritual chiefs” 473. Half a century later, Georges Clemenceau cited this as a precedent when he explained to Jan Paderewski why the Peace Conference insisted upon the inclusion of clauses on equality and religious freedom in the “little Treaty of Versailles” whereby Polish independence was acknowledged 474. The 1870s also saw the first proposals for an international criminal tribunal. After France had been defeated in 1870, Bismarck floated the idea of prosecuting Napoleon III before an international tribunal for the crime of starting the Franco-Prussian war 475. A few years later, one of the founders of the International Committee of the Red Cross, Gustave Moynier, published an elaborate proposal for an international court with jurisdiction over violations of the laws and customs of war 476. In the 1890s Moynier advanced a more modest   Treaty Between Great Britain, Austria-Hungary, France, Germany, Italy, Russia, and Turkey, for the Settlement of the Affairs of the East, Signed at Berlin, 13 July 1878, (18771878) 69 BFSP 749; Edward Hertslet, The Map of Europe by Treaty, Vol. IV, London: Her Majesty’s Stationery Office, 1875–1891, No. 530, p. 2759, Article XXXV. 474   Draft of the Covering Letter to be Addressed to M. Paderewski in Transmitting to Him the Treaty to be Signed by Poland under Article 93 of the Treaty of Peace with Germany, FRUS VI, p. 629, (1919) 13 American Journal of International Law (supplement) 416, at pp. 417418. 475  Benjamin E. Brockman-Hawe, “Punishing Warmongers for Their Mad and Criminal Projects: Bismarck’s Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War”, (2017) 52 Tulsa Law Review 241. 476  Gustave Moynier, La création d’une institution judiciaire internationale, propre à prévenir et à réprimer les 473

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proposal to impose international obligations to prosecute and extradite for violations of the Geneva Convention 477. These very modest beginnings were the precursors of important developments following the First World War as international law slowly began to recognise that State sovereignty could be limited in areas that had traditionally been immune from its reach. The Commission on Responsibilities of the Paris Peace Conference studied the creation of an international criminal jurisdiction as well as the recognition of international crimes, including the launching of a war of aggression and inhumane conduct during international armed conflict. In the field of human rights, the Peace Conference considered measures to protect national minorities as well as a general declaration recognising racial equality. Much of this never took final form at the time. But it is clear that from 1919 both international human rights and international criminal law were firmly planted on the international agenda. These two branches of international law went through a more dramatic growth spurt at the end of the Second World War. The linkages between them were perhaps even more visible than they had been in 1919. In 1944 Raphaël Lemkin proposed the recognition of a new crime, “genocide”, consisting of a range of violations of the fundamental human rights of national or ethnic minorities 478. René Cassin, who is perhaps best known for his role as one of the authors of the Universal Declaration of Human Rights, actively promoted infractions à la Convention de Genève, Geneva: Comité international de secours aux militaires blessés, 1872. See also, Christopher Keith Hall, “The First Proposal for a Permanent International Criminal Court”, (1998) 322 International Review of the Red Cross 57. 477  Institut de droit international, Yearbook, Vol. XIII, 1894/ 1895, pp. 355-356; Institut de droit international, Yearbook, Vol. XIV, 1895/1896, pp. 170-188. 478  Raphaël Lemkin, Axis Rule in Occupied Europe, Washington, DC: Carnegie Endowment, 1944. William A. Schabas - 978-90-04-52150-6

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criminal accountability for atrocities perpetrated during the war as one of the leading personalities in the London International Assembly 479. Hersch Lauterpacht proposed the term “crimes against humanity” at about the same time as he was authoring a draft declaration accompanied by a major study of fundamental rights 480. As the law developed, international criminal law and international human rights seemed to go hand in hand. Both were primarily focussed on the same phenomenon: serious violations of human rights, often involving discrimination based upon race, religion or ethnicity, perpetrated by States. Human rights law confronted this directly by affirming guarantees of protection against violation of fundamental rights. Such guarantees had been part of the law of many States since the revolutions of the eighteenth century. By the 1940s they had become matters of international concern. International criminal law came from a somewhat different perspective. Although the crimes were the work of States and ultimately the same violations with which human rights law was concerned, international criminal law targeted individual responsibility. International criminal law flourished for the better part of a decade that began in the early 1940s, but the excitement of Nuremberg and the Genocide Convention soon subsided, only to revive gradually in the 1980s. Reporting to the General Assembly on the drafting of the Code of Crimes Against the Peace and Security of Mankind, which it had resumed in 1983 after a break of twenty-nine years, the International Law Commission flagged the importance of establishing an international  René Cassin, “Note of Violations of the Laws and Customs of the War Perpetrated by the Germans Since September 1939”, in London International Assembly, Report on Punishment of War Crimes, London, 1943, pp. 42-55. 480  Hersch Lauterpacht, An International Bill of the Rights of Man, New York: Columbia University Press, 1945. 479

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criminal court 481. In 1988 the General Assembly gave the Commission encouragement “to explore all possible alternatives” with respect to “the judicial authority to be assigned for the implementation of the provisions of the draft Code” 482. The following year it formally requested the Commission “to address the question of establishing an international criminal court or other international criminal trial mechanism” 483. At the same time, human rights law was undergoing something of an epiphany, recognising that criminal justice was not only a source of violations in the form of unfair trials and abusive conduct by police, investigators and prison officials, but also a valuable mechanism for the enforcement of fundamental rights. This embrace of criminal justice as a means of implementing human rights has not been without its critics 484. The most visible turning point was a celebrated judgment of the InterAmerican Court of Human Rights in Velasquez-Rodriguez v. Honduras. Applying the iura novit curia principle, the Court said that “[a]n illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack   Yearbook . . . 1983, Vol. II (Part Two), p. 16, para. 69 (c) (i); Yearbook . . . 1986, Vol. II (Part Two), p. 54, para. 185 in fine; Yearbook . . . 1987, Vol. II (Part Two), p. 17, para. 67 (c). 482  Draft Code of Crimes Against the Peace and Security of Mankind, A/RES/43/164, para. 2. 483   International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs Across National Frontiers and Other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction Over Such Crimes, A/RES/44/39, para. 1. 484  Adnan Sattar, Criminal Punishment and Human Rights: Convenient Morality, London: Routledge, 2019. 481

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of due diligence to prevent the violation or to respond to it as required by the Convention” 485. Among the positive measures identified by the Court was the conduct of “a serious investigation” followed by identification of those responsible and imposition of “the appropriate punishment” 486. The Court’s thinking was later adopted by other international human rights bodies, including the European Court of Human Rights and the Human Rights Committee. The European Court of Human Rights began to speak of the “procedural obligation” associated with the protection of the right to life and the prohibition of torture and ill treatment 487. Since international justice revived, in the final years of the last century, it has been embraced by the human rights community of lawyers, academics and activists. The major human rights NGOs campaigned enthusiastically for the permanent court and arguably helped to influence the content of the Rome Statute. Since its adoption in 1998, they have pushed for ratification and implementation. Human rights institutions systematically engage with the International Criminal Court. Commissions of inquiry often call for prosecution by the Court as a means of enforcing human rights obligations. Today, international criminal law is part of the DNA of international human rights law. And vice versa. 5.1.  The Rome Statute and Human Rights For many years, the Office of Legal Affairs of the United Nations Secretariat published an annual volume entitled Multilateral Treaties Deposited with the Secretary-General. It seems that the last report appeared in   Velásquez-Rodríguez v. Honduras, Judgment (Merits), 29 July 1988, Series C, No. 4, para. 172. 486   Ibid., para. 174. 487   Kaya v. Turkey, No. 22729/93, para. 107, 19 February 1998; Osman v. the United Kingdom [GC], No. 23452/94, para. 123, 28 October 1998.

485

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2014, although it actually covered the year 2005! The material covered by the published volumes is now accessible on the United Nations Treaty Collection website under the same title as the books. The original published volumes of Multilateral Treaties developed a classification scheme based upon subject matter, dividing the universe of multilateral treaties into twentynine chapters, including “Human Rights” (Chap. 4), “Refugees and Stateless Persons” (Chap. 5), “Status of Women” (Chap. 16) and “Penal Matters” (Chap. 18). It is not always obvious where certain treaties belong. For example, the Convention on the Elimination of All Forms of Discrimination Against Women is listed under “Human Rights” and not “Status Of Women”, where instruments like the Convention on the Political Rights of Women are found. The anti-slavery conventions appear under “Penal Matters”, alongside various treaties dealing with organised crime and corruption. The slavery conventions contain criminal law provisions yet this aspect of them is rather secondary, and it might be more obvious to find them listed under “Human Rights” 488. Other treaties with similar criminal law dimensions are listed under “Human Rights”, including those dealing with genocide, apartheid, torture and enforced disappearance. Indeed, the very first treaty under the heading “Human Rights” is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Of course, there is nothing official 489 about such classifications. Nevertheless, this informal determination of the essence or focus of a treaty  See, for example, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, (1957) 266 UNTS 3. 489   Judge Shahabbuddeen approved of the assertion that the Genocide Convention was the first human rights treaty adopted by the United Nations: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, 1CJ Reports 1996, p. 595, Separate opinion of Judge 488

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is not without some significance given the authority of its source. It is perhaps not surprising that the Rome Statute and its numerous amendments are found under “Penal Matters” rather than “Human Rights”. There are few direct references to human rights in the Rome Statute. This was quite deliberate. Some of the drafters were concerned that explicit connections between the Court and international human rights mechanisms would sour any appeal it might have in certain quarters. The term “human rights” appears in only three places in the Rome Statute: in the provisions on applicable law (Art. 21 (3) ), on qualifications, nomination and election of judges (Art. 36 (1) (b) (ii) ) and on admissibility of evidence (Art. 69 (7) ). Elsewhere, the subject-matter jurisdiction contains other strong elements of human rights law, particularly in the provisions on genocide (Art. 6) and crimes against humanity (Art. 7), although there are also important affinities in the definitions of war crimes, such as the war crime of denying the right to a fair trial (Arts. 8 (2) (a) (vi) and 8 (2) (c) (iv) ). Article 67 on fair trial guarantees is clearly modelled on Article 14 (3) of the International Covenant on Civil and Political Rights. The presumption of innocence receives detailed treatment in Article 66. Article 20 ensures a protection against double jeopardy. The principle of legality, derived from Article 11 (2) of the Universal Declaration of Human Rights, is enshrined in Articles 22 and 23 of the Rome Statute. 5.1.1.  Internationally recognised human rights (Arts. 21 (3) and 69 (7) ) and fundamental rights (Art. 7 (1) (h) and 7 (2) (g) ) The Rome Statute’s provision on “applicable law” specifies that the application and interpretation of law Shahabuddeen, pp. 634-639, at p. 636. See also Prevention of genocide, A/HRC/RES/43/29, PP4. William A. Schabas - 978-90-04-52150-6

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“must be consistent with internationally recognised human rights” and without “any adverse distinction” founded on prohibited grounds. The same formulation, “internationally recognised human rights”, is also employed in Article 69 (7) where the exclusionary rule of evidence is set out. The crime against humanity of persecution is defined with reference to “fundamental rights” rather than to “internationally recognised human rights”, although nothing in the case law suggests that the terms have a different or distinct meaning. According to a Pre-Trial Chamber, “[f]undamental rights may include a variety of rights, whether derogable or not, such as the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment, freedom of expression, freedom of assembly and association and the right to education” 490. However, rather than attempt to parse the content of “fundamental rights”, judges of the International Criminal Court have tended to focus on the underlying criminal acts such as murder, rape and mutilation instead of referencing the associated rights to life and protection against ill treatment 491.   Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 101. Also Situation in Burundi (ICC-01/17-X), Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Burundi”, ICC-01/17-X-9-US-Exp, 25 October 2017, 9 November 2017, para. 132. 491   Prosecutor v. Muthaura et al. (ICC-01/09-02/11), Decision on the Confirmation of Charges Pursuant to Article 61 (7) (a) and (b) of the Rome Statute, 23 January 2012, paras. 283, 428.e; Prosecutor v. Hussein (ICC-02/05-01/12), Public redacted version of “Decision on the Prosecutor’s Application under Article 58 Relating to Abdel Raheem Muhammad Hussein”, 1 March 2012, paras. 11, 13 (xi); Situation in the Libyan Arab Jamahiriya (ICC-01/11), Decision on 490

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Article 21 (3) is unlike any other provision in the Rome Statute in that it purports to govern the application and interpretation of all of its provisions, as well as all of the other sources of applicable law. It seems to be analogous to constitutional provisions in national law that authorise courts to interpret and even disallow legislated texts to the extent that they are incompatible with fundamental human rights standards or that they are discriminatory 492. Although Mahnoush Arsanjani has suggested that “the original intention behind this paragraph may have been to limit the Court’s powers in the application and interpretation of the relevant law” 493, in practice it has broadened them. In its references to the sources of “internationally recognised human rights”, the Court has turned to a range of authorities without evident concern as to their applicability in a strict jurisdictional sense. The exercise of determining of what these rights consist seems similar to that of the Human Rights Council in the course of the Universal Periodic Review mechanism in that the actual the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi”, 27 June 2011, paras. 4265. 492  G. Hafner and C. Binder, “The Interpretation of Article 21 (3) ICC Statute, Opinion Reviewed”, (2004) 9 Austrian Review of International and European Law 163, at p. 163; Gilbert Bitti, “Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC”, in Carsten Stahn and Goran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Leiden: Brill, 2009, pp. 285-304, at p. 304; Cate Steains, “Gender Issues”, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute; Issues, Negotiations, Results, The Hague, London, Boston: Kluwer Law International, 1999, pp. 357-390, at pp. 371-375. 493  Mahnoush H. Arsanjani, “The Rome Statute of the International Criminal Court”, (1999) 93 American Journal of International Law 22, at p. 22. William A. Schabas - 978-90-04-52150-6

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sources of “internationally recognised human rights” lack precision. The Universal Periodic Review is purportedly based upon applicable human rights treaties as well as the Charter of the United Nations and the Universal Declaration of Human Rights. In practice, States almost never refer to specific sources of law in the course of the Universal Periodic Review. At the International Criminal Court, the general tendency has been to invoke provisions of international treaties as well as decisions by international human rights courts. Most of the case law comes from the European Court of Human Rights although none of the cases has involved crimes committed in Europe, with the exception of the administration of justice offences 494. Nor is any distinction made between legal instruments that are “binding” and those that are “non-binding” but highly authoritative texts like the Universal Declaration of Human Rights 495. The “right to self-determination” was identified as an internationally recognised human rights in the Pre-Trial Chamber’s 2021 ruling on territorial jurisdiction with respect to Palestine. The Chamber cited resolutions of the General Assembly and rulings of the International Court of Justice in support 496. In fact, these authorities have recognised the right of peoples to self-determination. There is often confusion on this distinction because self  Prosecutor v. Lubanga (ICC-01/04-01/06 OA 4), Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, para. 38 495   Prosecutor v. Ngudjolo (ICC-01/04-02/12 A), Order on the Implementation of the Cooperation Agreement Between the Court and the Democratic Republic of the Congo Concluded Pursuant Article 93 (7) of the Statute, 20 January 2014, para. 24, fn. 28 and 29. 496   Situation in the State of Palestine (ICC-01/18), Decision on the “Prosecution request pursuant to Article 19 (3) for a ruling on the Court’s territorial jurisdiction in Palestine”, 5 February 2021, para. 122. 494

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determination is recognised in common article 1 of the two Covenants, although there too it is formulated as a right of peoples rather than as a human right. In the Bemba et al. case, dealing with attempts to corrupt witnesses, the Court recognised it was “beyond question” that the right to privacy enjoyed universal recognition, adding that it was “duty-bound to respect this right pursuant to Article 21 (3) of the Statute” 497. The Trial Chamber cited the European Convention on Human Rights, relying specifically upon the text of Article 8 (2) whereby interference with private life is permitted “in accordance with the law” subject to certain conditions. The Court cited a decision of the European Court of Human Rights, but it also referred to a General Comment of the Human Rights Committee and a judgment of the Inter-American Court of Human Rights 498. Elsewhere in the same decision the Court affirmed that the right to privacy was an internationally recognised human right, citing in support provisions of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Universal Declaration of Human Rights and the Arab Charter of Human Rights 499. Referring to “fundamental rights” rather than to “internationally recognised human rights”, a Pre-Trial   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Kilolo Defence Motion for Inadmissibility of Material, 16 December 2015, para. 16. 498   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Requests to Exclude Western Union Documents and Other Evidence Pursuant to Article 69 (7), 29 April 2016, para. 27; also para. 33. 499   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Requests to Exclude Western Union Documents and Other Evidence Pursuant to Article 69 (7), 29 April 2016, para. 46. See also Prosecutor v. Lubanga (ICC-01/0401/06), Decision on the Confirmation of Charges, 29 January 2007, para. 74-75. 497

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Chamber in Ntaganda pointed to violations of the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment and “the right to private property” 500. In the Burundi authorisation decision, the Pre-Trial Chamber referred to “the right to private property” as a “fundamental right” 501. The Prosecutor has also referred to “the right to private property” as the basis for a charge of persecution 502. In Ntaganda, the Chamber carelessly cited as authority Article 8 of the International Covenant on Civil and Political Rights 503: Article 8 of the Covenant affirms the prohibition of slavery, something that was not relevant to the case in question. Moreover, the right to property, for which the reference to Article 8 seems to have been intended, is not recognised in either of the International Covenants. It appears in Article 17 of the Universal Declaration of Human Rights, but as “the right to own property alone as well as in association with others” rather than “the right to private property”. The Court might have questioned whether this right is actually a “fundamental right” or an “internationally recognised human right” at all. Admittedly, it appears in some of the treaties, but the omission of any provision in the two Covenants, which were intended to provide   Prosecutor v. Ntaganda (ICC-01/04-02/06), Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014, para. 58. 501   Situation in Burundi (ICC-01/17-X), Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi”, ICC-01/17-X-9-USExp, 25 October 2017, 9 November 2017, para. 132. 502   Situation in Georgia (ICC-01/15), Request for Authorisation of an Investigation Pursuant to Article 15, 13 October 2015, para. 272. 503   Prosecutor v. Ntaganda (ICC-01/04-02/06), Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014, para. 58, fn. 230. 500

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a detailed treaty codification of the provisions of the Universal Declaration, is not something that can be ignored. The occasional references in the case law to a right to property seem to assume that because the right to property appears in some treaties this is sufficient for compliance with the Rome Statute 504. Surely it would be too broad to consider that “internationally recognised human rights” are those found in only one or a few legal instruments, perhaps from one region of the world. For example, the Charter of Fundamental Rights of the European Union is undoubtedly an international human rights instrument, but can it be said that everything it contains meets the standard of “internationally recognised human rights”? As a starter, it says that the death penalty is prohibited 505. Yet nearly thirty countries in the world still employ capital punishment and for many more it remains in national legislation 506. The European Charter also recognises “the right to paid maternity leave and to parental leave following the birth or adoption of a child”, something that is probably not controversial in principle but where resource issues in many States makes any genuine   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Mr Kilolo’s “Notice of Appeal Against the Decision of the Single Judge ICC01/0501/13-743Conf-Exp” dated 10 November 2014 and on the Urgent Request for the Partial Lifting of the Seizure on Mr Kilolo’s Assets dated 24 November 2014, 1 December 2014, p. 5; Prosecutor v. Bashir (ICC-02/05-01/09), Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez and Judge Solomy Balungi Bossa, 6 May 2019, para. 171 (citing, erroneously, Article 1 of the European Convention of Human Rights rather than Article 1 of the first Protocol to the European Convention). 505  Charter of Fundamental Rights of the European Union, OJ C 326/391, Article 2 (2). 506  Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, Report of the Secretary-General, E/2020/53. 504

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507 implementation improbable  . In some cases, there is a lack of consensus about the scope of certain rights among the tribunals and treaty bodies charged with their implementation. The European Court of Human Rights has concluded that there is no violation of fundamental rights when legislation punishes women for wearing a face covering 508 (this was pre-Covid-19) whereas the Human Rights Committee reached the opposite conclusion 509. The International Criminal Court has yet to be confronted with a situation where two of the most prominent human rights bodies disagree as to whether something is or is not an “internationally recognised human right”. Probably the concept of “internationally recognised human rights” amounts to the same thing as “customary international law of human rights”, where there is broad consensus globally about the scope and content of a right. There is a paucity of sources on the content of customary law in the area of human rights 510. The international courts and treaty bodies almost never pronounce themselves on the content of customary law in the area of human rights because they are themselves creations of treaty law, focussed on the relevant legal instruments and lacking jurisdiction for broader pronouncements about human rights in general. On only one occasion, it seems, has the International Criminal Court explicitly recognised the customary law of human rights when it acknowledged

 Charter of Fundamental Rights of the European Union, OJ C 326/391, Article 33 (2). 508   SAS v. France [GC], No. 43835/11, §§ 137-159, ECHR 2014-III (extracts). 509   Yaker v. France (No. 2747/2016), Views, 22 February 2016, CCPR/C/123/D/2747/2016, para. 7; Hebbadj v. France (No. 2807/2016), Views, 3 March 2016, CCPR/ C/123/D/2807/2016, para. 7.7. 510  See the forthcoming study, William A. Schabas, The Customary International Law of Human Rights, Oxford: Oxford University Press, 2021. 507

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a protection against non-refoulement as customary law 511. In a dissenting opinion, Judge Van den Wyngaert observed that “Article 21 (3) speaks of ‘internationally recognised human rights’ and is thus not limited in its application to ‘jus cogens’ or ‘non-derogable’ norms” 512. Article 21 (3) of the Rome Statute provides a nonexhaustive list of prohibited grounds of discrimination, similar in nature to Article 2 (1) of the Universal Declaration of Human Rights and provisions in many of the treaties. In recent decades, there has been a tendency to substitute the word “gender” in place of “sex”, the terminology employed in the Universal Declaration and, perhaps of even greater significance, Article 1 (3) of the Charter of the United Nations. This terminological evolution did not sit well with some States when the Rome Statute was being drafted. The result is the crossreference to Article 7 (3), which is the definition of crimes against humanity, and its enigmatic pronouncement about the troublesome “g-word”: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any   Prosecutor v. Katanga (ICC-01/04-01/07), Decision on the Application for the Interim Release of Detained Witnesses DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350, 1 October 2013, para. 20; Prosecutor v. Katanga et al. (ICC-01/04-01/07), Decision on an Amicus Curiae Application and on the “Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRCD02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d’asile” (Arts. 68 and 93 (7) of the Statute), 9 June 2011, para. 67; Prosecutor v. Ngudjolo (ICC-01/0402/12 A), Order on the Implementation of the Cooperation Agreement Between the Court and the Democratic Republic of the Congo Concluded Pursuant to Article 93 (7) of the Statute, 20 January 2014, para. 19. 512   Prosecutor v. Katanga (ICC-01/04-01/07), Dissenting Opinion of Judge Christine Van den Wyngaert, 1 October 2013, para. 6. 511

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meaning different from the above” 513. One of the more robust applications of Article 21 (3) has come from the Prosecutor in her policy paper on sexual and gender-based crimes, published in June 2014. The Prosecutor proposed to “apply and interpret” Article 7 (3) “in accordance with internationally recognised human rights pursuant to Article 21 (3)”. The Prosecutor invoked materials from the Committee on the Elimination of Discrimination Against Women and the High Commissioner for Human Rights, concluding that she would consider “not only acts of violence and discrimination based on sex, but also those related to socially constructed gender roles” 514. 5.1.2. Qualifications, nomination and election of judges (Arts. 36 (3) (b) (ii) ) In the qualification, nomination and election of judges, the Rome Statute contemplates two categories, one with “established competence in criminal law and procedure” and the second with “established competence in relevant areas of international law such as international humanitarian law and the law of human rights”. Article 39 (1) abbreviates this somewhat, describing the two categories of established competence as “criminal law and procedure” and “international law”. It also specifies that the Trial and Pre-Trial Divisions are to be composed predominantly of judges with criminal trial experience, which implies a concentration of international law judges in the Appeals Chamber. The Statute requires   On the definition of “gender”, see Michael Bohlander, “Criminalising LGBT Persons Under National Criminal Law and Article 7 (1) (h) and (3) of the ICC Statute”, (2014) 5 Global Policy 401; Valerie Oosterveld, “The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice”, (2005) 18 Harvard Human Rights Journal 55. 514   Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, June 2014, para. 27. 513

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that in the initial elections, a minimum of nine judges were to be those with criminal law competence and five with international law competence. The proportion was to be maintained in subsequent elections 515. In the most recent elections, of December 2020, three of the six judges elected were from the international law list, known as “list B”. All three of them had the career profiles of diplomats and senior government officials. Each could attest to a modest degree of “established competence” in human rights, but that can probably be said of most diplomats. None could be described as prominent specialists 516. Three other serving judges were elected from “list B”, although one of them spent most of his career working at the international criminal tribunals. Two serving judges, Reine Adelaide Sophie Alapini-Gansou and Péter Kovács, have significant experience in human rights law. When Judge Alapini-Gansou was elected, the Advisory Committee on Nominations described her as having “good knowledge of human rights law” and, without any enthusiasm, rated her only “formally qualified” 517. Two other candidates from “list B”, who were described as having “exceptional expertise” in human rights law and who were rated “particularly well qualified” for the position of judge, were not elected 518. The inescapable conclusion is that the criterion in the Statute of “established competence” in international human rights law, and for that matter international humanitarian law, is not taken very seriously by States parties when they nominate candidates and when they  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 36 (5). 516   Report of the Advisory Committee on Nominations of Judges on the Work of its Seventh Session, ICC-ASP/19/11. 517   Report of the Advisory Committee on Nominations of Judges on the Work of its Sixth Meeting, ICC-ASP/16/7, p. 11. 518   Ibid., pp. 11-12. 515

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elect them. It does not seem that the Chambers have ever had a genuine specialist in international humanitarian law. Notoriously, elections for judges involve a great deal of bargaining, whereby pledges are given to vote for certain candidates in exchange for future considerations in international elections that may have nothing to do with international criminal justice or human rights. 5.1.3.  Admissibility of evidence (Art. 69 (7) ) The third explicit reference to international human rights law appears in Article 69 (7) of the Rome Statute. It specifies that “[e]evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible”, subject to two conditions: the violation casts substantial doubt on the reliability of the evidence; or admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. Article 69 (7) has been described as having two prongs. First, a determination must be made whether evidence was obtained by a violation either of the Statute or of internationally recognised human rights. Only when it reaches the conclusion of a violation does the second prong come into play 519. Known as the “exclusionary rule”, it has been applied by the International Criminal Court when, for example, evidence was obtained in violation of the right to privacy 520. The classic example is, of course,   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Request to Declare Telephone Intercepts Inadmissible, 24 September 2015, para. 17; Prosecutor v. Bemba et al. (ICC01/05-01/13 A A2 A3 A4 A5), Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido Against the Decision of Trial Chamber VII Entitled “Judgment Pursuant to Article 74 of the Statute”, 8 March 2018, para. 280. 520   Prosecutor v. Bemba et al. (ICC-01/05-01/13), Decision on Kilolo Defence Motion for Inadmissibility of Material, 16 September 2015, para. 16. 519

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evidence obtained as a result of torture or cruel, inhuman or degrading treatment or punishment. The Convention Against Torture lists one of the purposes of torture to be the obtaining from the victim or a third person 521 of “information or a confession”  . No confession obtained as a result of torture by a person accused of an offence can be used as evidence of guilt 522. In any event, a confession obtained by torture is inherently unreliable, and should not be the basis of a conviction because of the presumption of innocence 523. But the principle applies more broadly because it requires the exclusion of statements made by persons other than the accused and even to material evidence that is derived as a result of information obtained by torture or cruel, inhuman or degrading treatment 524. Unlike confessions, material evidence obtained as a result of torture, such as the location of weapons or bodies, may be entirely valid and credible. To that extent, evidence is excluded not because of unreliability and not because the rights of the accused are compromised but rather to induce those involved in law enforcement to abandon the practice of obtaining evidence through torture and ill treatment. The Special Rapporteur on torture and other cruel, inhuman  Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, (1984) 1465 UNTS 85, Article 1 (1). 522  General Comment 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, para. 41. Also General Comment 36, Article 6: right to life, CCPR/C/GC/36, para. 54. The formulations of the Human Rights Committee are derived from the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, (1984) 1465 UNTS 85, Article 15. 523   Al Nashiri v. Romania, No. 33234/12, para. 718, 31 May 2018; Söylemez v. Turkey, No. 46661/99, para. 122, 21 September 2006. 524   Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/25/60, para. 28. 521

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or degrading treatment or punishment has said that the exclusionary rule is a norm of customary international law 525. In an early General Comment, the Human Rights Committee called for the inadmissibility not only of confessions but also of “other evidence” obtained through torture or ill treatment 526. It subsequently confined its position on this matter to “statements or confessions” 527, a rule that is aligned with the text of Article 15 of the Convention Against Torture. The Committee Against Torture, nevertheless, has taken the view that “strict enforcement” of Article 15 of the Convention requires that “all evidence obtained directly or indirectly by torture” be excluded from the court record 528. The Grand Chamber of the European Court of Human Rights concluded that “there is no clear consensus in the States Parties to the Convention on the scope of the exclusionary rule” 529 although it appeared, but hesitantly, to support the principle of exclusion 530. The Inter-American Court of Human Rights has held that evidence generated by torture as well as statements or confessions must be excluded 531.   Ibid., para. 17.  General Comment 7, A/37/40, p. 94, para. 1. 527  General Comment 20, A/47/40, p. 193, para. 12; General Comment 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, para. 41. 528   Germany, Concluding observations, A/53/44, para. 193. Also Iceland, Concluding observations, CAT/C/ISL/CO/3, para. 13; Poland, Concluding observations, CAT/C/POL/ CO/7, para. 12 (a). 529   Gäfgen v. Germany [GC], No. 22978/05, para. 69, ECHR 2010. 530   Ibid., para. 178. See also Bykov. v. Russia [GC], No. 4378/02, Concurring Opinion of Judge Cabral Barretto, 10 March 2009, para. 2. 531   Cabrera García and Montiel Flores v. Mexico, Judgment (Preliminary Objections, Merits, Reparations and Costs), 26 November 2010, para. 167. 525 526

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The first defendant at the International Criminal Court, Thomas Lubanga, invoked Article 69 (7) at his confirmation hearing with respect to items seized at his home in the Democratic Republic of the Congo that followed a search conducted by national authorities but in the presence of an investigator of the International Criminal Court. National courts had ruled the search to be unconstitutional and in violation of international norms. The Court took note of the recognition of the right to privacy in various international human rights treaties 532. According to the Pre-Trial Chamber, the search and seizure undertaken at Lubanga’s home may have been unlawful under national legislation, requiring that the person be present when the search takes place, but it was not so serious as to violate any fundamental human rights norms 533. It went on to consider the principle of proportionality, noting that this figured in the analysis of the right to privacy undertaken in case law of the European Court of Human Rights. The “indiscriminate nature of the search and seizure involving hundreds of items” made this a violation of internationally recognised human rights norms 534. 5.2.  International crimes and human rights The subject matter of international criminal law, consisting essentially of the four core crimes set out in the Rome Statute, is closely bound up with the international law of human rights. Most crimes, be they international, transnational or “ordinary”, have affinities with fundamental human rights. After all, the principal classifications of crimes against the person and crimes against property that are often employed in analysis of the   Prosecutor v. Lubanga (ICC-01/04-01/06), Decision on the Confirmation of the Charges, 29 January 2007, para. 74.   Ibid., para. 78. 534   Ibid. 532 533

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subject matter of domestic criminal law can have obvious linkages with the right to life, the protection against ill treatment and the right to property. The distinctions that set true international crimes apart appear to depend upon two main factors, massive scale and a systematic dimension, the latter factor being closely associated with the policy of a State or a State-like body. The Rome Statute claims it is addressed to “the most serious crimes of concern to the international community as a whole” 535. Nevertheless, this is probably only a subjective guide in the adoption of amendments to the Statute and not an objective standard capable of some sort of judicial review. Judges may decline to proceed with prosecution for a crime they deem to be of insufficient gravity 536, but this is a reference to the “case” before them rather than the definition of the offence. Criminal law doctrine makes a classic distinction between punishable acts that are mala in se and those that are mala prohibita. To an extent, this also applies to international criminal law. The four crimes in the Rome Statute take their place to the exclusion of other crimes because that is what the drafters were able to agree upon. Some crimes that may well have been “the most serious crimes of concern to the international community as a whole” were deliberately excluded from the Rome Statute because there was insufficient support for them among the delegates to the conference. The two categories of crimes that had some momentum are international drug trafficking and terrorism. For both there were serious proposals and significant support, but not enough. They were flagged in the Final Act of the Rome Conference for further attention 537. The passage of time did little or nothing to broaden calls for their inclusion in a formal  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Preamble (PP4 and PP9), Articles 1 and 5.   Ibid., Article 17 (1) (d). 537  A/CONF.183/C.1/Add.14, at p. 8. 535 536

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amendment. According to Judge Pikis of the Appeals Chamber, the drafters actually rejected drug trafficking and terrorism, “no doubt crimes of international concern”, thereby deciding that they were not “the most serious crimes” 538. Is seems striking that both categories, drug trafficking and terrorism, have little direct connection with international human rights, in contrast with the four core crimes that are in the Statute. Perhaps this explains at least in part their exclusion from the list although it would be imprudent to oversimplify a phenomenon that is attributable to a number of factors. The first two crimes in the Rome Statute are the closest to international human rights law. War crimes contain elements of human rights law but are primarily associated with international humanitarian law, and are discussed in this course under that heading. As for the crime of aggression, it too has a human rights law component but is more properly discussed with respect to the use of force. 5.2.1.  The crime of genocide The place of the crime of genocide within international law was confirmed at the first session of the United Nations General Assembly. Resolution 96 (I), adopted on 11 December 1946, frames the concept with the language of fundamental rights. “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations”, reads the first para538

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graph of the preamble. The resolution declares that genocide is “a crime under international law” whose punishment is “a matter of international concern” 539. When the resolution was first proposed by Cuba, its ambassador, Ernesto Dihigo y López Trigo, said that it “aimed at the protection of human rights”. Speaking in support, the British representative, Sir Hartley Shawcross, who earlier that year had prosecuted Nazi leaders at Nuremberg, said that “dictators should be warned that if they infringed upon human rights, they acted at their own risk, and that international law would condemn them” 540. The original author of the resolution was Raphaël Lemkin, a Jewish refugee from Nazi-occupied Poland who proposed the concept, and the word, in his book Axis Rule in Occupied Europe, published in late 1944 541. Lemkin justified his initiative by noting the shortcomings of the minority rights protection regime developed at the Paris Peace Conference of 1919 and subsequently under the auspices of the League of Nations. The system of protection of minority rights is viewed as one of the precursors of the more comprehensive system of protection of human rights developed by the United Nations. The 1946 General Assembly resolution on genocide launched a process that led to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide two years later. The SecretaryGeneral thought the task of drafting the treaty might be assigned to the Commission on Human Rights 542. His proposal was taken up in a draft resolution by the United  The Crime of Genocide, A/RES/96 (I).  Sixth Committee, Summary Record of the Twenty-Sixth Meeting, 25 November 1946, A/C.6/84. 541  Raphaël Lemkin, Axis Rule in Occupied Europe, Washington, DC: Carnegie Endowment, 1944. 542  The Crime of Genocide, Note by the Secretary-General, E/330, 12 March 1947.c 539 540

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States 543. However, the Commission was “overburdened” with another important project, the preparation of the “international bill of rights”, including a document that would eventually be named the Universal Declaration of Human Rights 544. Drafting of the Genocide Convention was entrusted to experts 545, who worked from an initial proposal prepared by the Director of the Division on Human Rights, John P. Humphrey 546. Humphrey is widely recognised as the author of the first draft of the Universal Declaration of Human Rights, but his contribution to the Genocide Convention tends to be overlooked 547. The draft Genocide Convention reached the General Assembly in late 1948 at its third session. Responsibility for the preparation of the final text was assigned to the Sixth Committee whereas the Universal Declaration of Human Rights was negotiated in the Third Committee. Many individual delegates participated actively in both Committees, appreciating the synergy and complementary nature of the two instruments. Others had their favourite instrument. The Genocide Convention’s guiding spirit, Raphael Lemkin, considered the Universal Declaration to be a distraction and did not support its adoption 548.  Draft Resolution Proposed by the Delegation of the United States, E/342, 17 March 1947. 544  In the words of the Soviet representative: Committee on Social Affairs, Summary Record of the Sixth Meeting, 6 March 1947, E/AC.7/8. See also draft Convention on the Crime of Genocide, 15 June 1948, E/CN.4/136; Report of the Third Session of the Commission on Human Rights, 24 May-18 June 1948, E/800, para. 24. 545  Crime of Genocide, E/RES/47(IV). 546  Draft Convention on the Crime of Genocide, E/447, p. 15. 547  William A. Schabas, “John Peters Humphrey: The Man Behind the First Draft of the Universal Declaration of Human Rights”, in Kasey McCall-Smith, Jan Wouters and Felipe Gómez Isa (eds.), The Faces of Human Rights, Oxford: Hart, 2019, pp. 115-123. 548  Samantha Power, “A Problem from Hell”: America and the Age of Genocide, New York: Basic Books, 2002, 543

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In the same spirit, Hersch Lauterpacht, who takes some credit for the term “crimes against humanity” in the Nuremberg Charter, was also unenthusiastic about the Universal Declaration. “Not being a legal instrument, the Declaration would appear to be outside international law”, he wrote in the 1948 edition of the British Yearbook of International Law 549. When the instruments were being negotiated in the two General Assembly committees, some delegations were concerned that they might overlap 550. The heart of this issue concerned what the experts of the Secretariat had labelled cultural genocide, namely, the efforts to destroy a national, ethnic, racial or religious group by suppressing the manifestation of its identity by, for example, prohibiting use of its language and practice of its religion. When it was decided to exclude cultural genocide from the scope of the Convention, the rationale was that this was a matter being addressed in the Universal Declaration of Human Rights 551. The same point was made in the debate about whether political groups should pp. 74-76; Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, Princeton, NJ and Oxford: Princeton University Press, 2009, at p. 131. 549  Hersch Lauterpacht, “The Universal Declaration of Human Rights”, (1948) 25 British Yearbook of International Law 354, at p. 369. Along similar lines, Josef L. Kunz, “The United Nations Declaration of Human Rights”, (1949) 43 American Journal of International Law 316, at p. 321 (“it is not law”). 550  Draft Convention on the Crime of Genocide, E/447, p. 16; List of Communications from Non-Governmental Organisations, E/C.2/52. 551   See, for example, Report of the Committee and Draft Convention drawn up by the Committee, 24 May 1948, E/794, p. 17. Also the debate in the Sixth Committee: Sixth Committee, Summary Record of the Eighty-Third Meeting, 23 October 1948, Official Records of the General Assembly, pp. 191-207. William A. Schabas - 978-90-04-52150-6

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be included in the enumeration of protected groups 552. For example, in the Sixth Committee of the General Assembly the delegate from Uruguay said that “[a]s the desire to suppress and prevent genocide was only one particular aspect of the universal desire to protect the human person, the convention should restrict itself to the crime of physical genocide and not deal with other aspects of the problem; those parts dealing with cultural and political genocide should be dealt with in the field of human rights” 553. The French delegate said that cultural genocide should be excluded from the draft Convention because “on the one hand, that concept was not sufficiently well-defined and, on the other hand, that type of genocide came within the sphere of the protection of human rights” 554. In the Third Committee, the delegate from Ecuador said the expulsion of entire groups was a matter for the Sixth Committee and the draft Genocide Convention, whereas the forced expulsion of individuals belonged in the Declaration 555. Denmark’s Bogdil Begtrup argued for a minority rights provision in the Declaration, noting that the Sixth Committee had deleted reference to cultural genocide “apparently because delegations believed that an Article dealing with that subject would be more appropriate in the decla  Sixth Committee, Summary Record of the Sixty-Ninth Meeting, 7 October 1948, Official Records of the General Assembly, p. 58; Sixth Committee, Summary Record of the Seventy-Fifth Meeting, 15 October 1948, Official Records of the General Assembly, p. 112. 553   Sixth Committee, Summary Record of the Sixty-Fourth Meeting, 2 October 1948, Official Records of the General Assembly, p. 16. 554   Sixth Committee, Summary Record of the Sixty-Fifth Meeting, 2 October 1948, Official Records of the General Assembly, 1948, p. 29. 555  Third Committee, Summary Record of the Hundred and Thirteenth Meeting, 26 October 1948, Official Records of the General Assembly, 1948, p. 244. 552

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ration” 556. The Sixth Committee may well have intended that the Third Committee address issues relating to the protection of minorities falling short of attacks on their very existence. Nevertheless, the Third Committee decided against any special reference to minorities, leaving their protection to general provisions including the right to equality 557. The gap in human rights treaty law was eventually addressed in the very modest provision on minority rights contained in the International Covenant on Civil and Political Rights 558. The two instruments were adopted within one day of each other. On 10 December 1948, the president of the General Assembly opened the session by referring to the adoption the previous day of the Genocide Convention as an “epoch-making event”. He said that the adoption of the Universal Declaration of Human Rights, which was to take place a few hours later, “would also be of that character” 559. Other delegates also spoke of the close relationship of the two instruments 560. The 1948 session of the General Assembly was held, exceptionally, in Paris, at the Palais de Chaillot. Today, separate plaques  Third Committee, Summary Record of the Hundred and Forty-Sixth Meeting, 19 November 1948, Official Records of the General Assembly, 1948, p. 584. 557  William A. Schabas, “Les droits des minorités: Une déclaration inachevée”, in Déclaration universelle des droits de l’homme 1948-98,: Avenir d’un idéal commun, Paris, La Documentation française, 1999, pp. 223-242; Johannes Morsink, “Cultural Genocide, the Universal Declaration, and Minority Rights”, (1999) 21 Human Rights Quarterly 1009. 558  International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, Article 27. 559   General Assembly, Hundred and Eighty-Second Plenary Meeting, 10 December 1948, Official Records of the General Assembly, 1948, pp. 889-890. 560  See the remarks of Raafat of Egypt, General Assembly, Hundred and Eighty-Third Plenary Meeting, 10 December 1948, Official Records of the General Assembly, 1948, p. 912. 556

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commemorate the adoption of the Genocide Convention and the Universal Declaration of Human Rights. The Genocide Convention and the Universal Declaration are siblings, bound by blood ties but not entirely immune to dissonance. There is the potential for tension between the punishable act of genocide of “direct and public incitement to commit genocide” and the human right to freedom of expression. Listed in Article III (c) of the 1948 Convention, and repeated in Article 25 (3) (e) of the Rome Statute as well as the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, “direct and public incitement” is understood as an inchoate crime, meaning that it can be committed even if the underlying crime of genocide does not result 561. To this extent it is different from “incitement” tout court, which may be indirect and take place in private. If genocide results from indirect incitement that is not public it is nevertheless punishable as a form of complicity. The case law on this distinction is not very helpful because convictions for “direct and public incitement” have generally involved circumstances where genocide did in fact take place 562. The United States, with its traditional aversion to encroachments on freedom of expression, was dissatisfied with the provision. When it finally ratified the Genocide Convention, a reservation was attached specifying that “nothing in the Convention requires or authorises legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States” 563. Its enabling legislation specified that direct and public   Prosecutor v. Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para. 562; Prosecutor v. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, paras. 1013, 1017. 562  For example, Prosecutor v. Nahimana et al. (ICTR99-52-T), Judgment and Sentence, 3 December 2003, para. 1029. 563  C.N.281.1988.TREATIES-2. 561

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incitement means “to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct” 564. Although this is not addressed in the Genocide Convention, human rights courts have confronted the modern phenomenon of “genocide denial”. The debates have tended to focus on the most widely accepted examples of the crime, of the Jews under the Nazis, the Armenians in the Ottoman Empire, and the Rwandan Tutsi. The European Commission and the Court of Human Rights have not considered freedom of expression to be violated in cases dealing with denial of the genocide of the European Jews, “emanating from persons professing Nazi-like views or linked with Nazi-inspired movements” 565. The Human Rights Committee initially upheld the validity of Holocaust-denial legislation 566 but later appeared to change its position, holding that “[l]aws that penalise the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression” 567. 5.2.2.  Crimes against humanity Crimes against humanity is the category of international crime where the relationship with international human 568 rights law is most evident  . The initial definition,   Genocide Convention Implementation Act of 1987 (“Proxmire Act”), S. 1851, s. 1093(3).   Perinçek v. Switzerland [GC], No. 27510/08, paras. 209210, ECHR 2015-VI. 566   Faurisson v. France (No. 550/1993), Views, 8 November 1996, CCPR/C/58/D/550/1993, paras. 9.1-10. 567  General Comment 34, CCPR/C/GC/34, para. 49. 568  See, for example, Juan Pablo Pérez-León Acevedo, “The Close Relationship between Serious Human Rights Violations and Crimes Against Humanity: International Criminalization of Serious Abuses” (2017) XVII Aquaria Mexicano de Derecho Internacional 145. 564 565

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adopted in 1945 at the London Conference in the Charter of the International Military Tribunal, cannot have been influenced by international human rights terminology, as this was still in quite a nascent form itself. However, unlike the definition of genocide adopted by the General Assembly in 1948, which has remained stable and unchanged since then, definitions of crimes against humanity have evolved quite dramatically. The 1945 definition consists of six punishable acts whereas the definition in the Rome Statute, which is today the gold standard for crimes against humanity, contains eleven. The new additions – imprisonment, torture, rape and other sexual and gender-based crimes, enforced disappearance and apartheid – are very largely attributable to the development of international human rights law. The International Law Commission adopted the definition in the Rome Statute in its draft articles on crimes against humanity, describing it as “an appropriate basis”, although adding that this was without prejudice to an understanding of the category under customary international law and other international instruments 569. Transposing human rights violations into international crimes has not always proven to be a seamless exercise. For example, torture is defined in Article 1 of the Convention Against Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain 569

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or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. In the Rome Statute the crime against humanity of torture is defined somewhat differently, as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions” 570. The definition in the Rome Statute omits the requirement of a purpose. So that there is no uncertainty, the Elements of Crimes of the Rome Statute declare, in a footnote: “It is understood that no specific purpose need be proved for this crime” 571. There is also a discrepancy in the definitions of enforced disappearance. Article 7 (2) (i) of the Rome Statute specifies that the disappearance must be attributable either to a State or to a “political organisation”. The latter term is not defined. The Human Rights Committee has pointed to the difference between the Rome Statute term “political organisation” and the text of Articles 2 and 3 of the International Convention for the Protection of All Persons from Enforced Disappearance, distinguishing between enforced disappearances carried out by States or by persons or groups acting with their authorisation, support or acquiescence, and similar acts conducted by persons or groups acting without such authorisation, support or acquiescence 572. In both cases, torture and  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 7 (2) (e). 571  Elements of Crimes, ICC-ASP/1/3 and Corr.1, part II.B, Article 7 (1) (f), Crime against humanity of torture, fn. 14. 572   Durić et al. v. Bosnia and Herzegovina (No. 1956/2010), Views, 16 July 2014, CCPR/C/111/D/1956/2010, para. 9.3, fn. 21; Tija Hero et al. v. Bosnia and Herzegovina (no. 570

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enforced disappearance, the human rights treaties do not include the requirement of the Rome Statute that the act be part of a widespread attack, and that it be pursuant to a state organisational policy. The Committee on Enforced Disappearances has criticised States for including requirements that are not found in the Convention when they introduce the offence into their domestic law, such as a requirement that the offence be committed “as part of a concerted plan” 573. The relationship between the emerging law of human rights and the codification of crimes against humanity was quite apparent at the London Conference. Some early drafts of the Charter of the International Military Tribunal, inspired by the word of the United Nations War Crimes Commission, identified a category of international crime described as “atrocities and persecutions and deportations on political, racial, or religious grounds” 574. Robert Jackson expressed considerable anxiety about the provision because, he told the Conference, “ordinarily we do not consider that the acts of a government toward its own citizens warrant our interference” 575. Jackson might well have been speaking about human rights law. With admirable candour, he acknowledged that “[w]e have some regrettable circumstances at times in our 1966/2010), Views, 28 October 2014, CCPR/C/112/D/ 1966/2010, para. 9.3, fn. 16. 573   Report of the Committee on Enforced Disappearances, Third Session (29 October-9 November 2012), Fourth Session (8-19 April 2013), A/68/56, pp. 15-16. 574   “Revision of American Draft of Proposed Agreement, June 14, 1945”, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington, DC: US Government Printing Office, 1949, pp. 55-60; “Amendments Proposed by the United Kingdom, June 28, 1945”, in ibid., pp. 86-88; “Draft of Agreement and Charter, Reported by Drafting Subcommittee, 11 July 1945”, in ibid., pp. 194-201. 575  “Minutes of Conference Session of July 23, 1945”, in ibid., pp. 328-347, at p. 333. William A. Schabas - 978-90-04-52150-6

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own country in which minorities are unfairly treated” 576. It should be no surprise that Jackson’s concern about a definition of crimes against humanity in respect to the treatment of civilian populations within his own state resonated with the delegates of the other three countries participating in the Conference: the United Kingdom, France and the Soviet Union. The result was a rather cynical decision to limit crimes against humanity to atrocities, persecutions and deportations linked to aggressive war. This is known as the nexus between crimes against humanity and armed conflict. It was endorsed by the judges of the International Military Tribunal 577 and confirmed in the Nuremberg Principles adopted by the International Law Commission in 1950 578. One of the more curious manifestations of the relationship between international criminal law and international human rights law was the decision by the International Law Commission to entirely drop the label “crimes against humanity” and replace it with “systematic or mass violations of human rights” in the draft Code of Crimes Against the Peace and Security of Mankind that it adopted in 1991 579. Earlier versions of the draft Code had not given the provision a title although the accompanying commentaries made it clear that the text “corresponded in substance” to the definition of crimes against humanity in the Nuremberg Charter 580. Explaining its innovative terminology, the Commission noted “that the common factor in all the acts constituting crimes under this draft Article was a serious violation of certain fundamental human rights”. It also pointed to the “considerable   Ibid.   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1948) 1 IMT 171, at pp. 254-255. 578  Proposed text of the Nürnberg Principles as formulated by the International Law Commission, Yearbook . . . 1950, Vol. II, p. 195. 579   Yearbook . . . 1991, Vol. II (Part Two), p. 103. 580   Yearbook . . . 1954, Vol. II, p. 150. 576 577

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development in the protection of human rights since the 1954 draft Code”, saying it thought it “useful to bring out this common factor in the draft Article itself and in the title” 581. Later, the Commission reverted to “crimes against humanity”. According to the Special Rapporteur, this was “an established term which has been enshrined in the legal lexicon”. But another reason was to attenuate the requirement that violations be “mass” 582. Human rights law has proven to be extremely dynamic, developing increasingly robust standards as values evolve. The broadening of the concept can easily be seen with reference to the conduct and acts of the distant past. The Durban Declaration of 2001 stated that “slavery and the slave trade are a crime against humanity and should always have been so”, thereby confirming, at least implicitly, that this was not the case at some point in human history 583. Although the first codification of crimes against humanity dates to 1945, the term had been in use for at least a century and a half 584. Once it is accepted that the scope of crimes against humanity has broadened over time, attention inexorably turns from the past to the future, to the issues that today do not amount to crimes against humanity but that may well do so at some point in time. If, for example, measures prohibiting marriage outside one’s ethnic group may be   Yearbook . . . 1991, Vol. II (Part Two), p. 103.  Thirteenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, by Mr. Doudou Thiam, Special Rapporteur, A/CN.4/466, paras. 85-88. Also Report of the International Law Commission on the Work of its Forty-Seventh Session (2 May-21 July 1995), A/50/10, para. 42. 583  World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration, A/CONF.189/12, pp. 1-25, para. 13. 584  Voltaire, A Philosophical Dictionary: From the French of M. De Voltaire, 1793, reprint, London: W. Dugale, 1843, p. 293. 581 582

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considered persecution, will courts eventually consider that measures prohibiting marriage between persons of the same sex are also crimes against humanity? There is room for progressive development even without formally amending the current definition of the Rome Statute. Article 7 (1) (h) of the Rome Statute defines persecution “against any identifiable group or collectivity”, offering a series of recognised categories but also noting that there may be “other grounds that are universally recognised as impermissible under international law”. Obvious candidates would be disability, age and sexual orientation. Judicial determination as to whether unenumerated grounds are nevertheless recognised universally is likely to rely upon human rights sources, such as resolutions of the Human Rights Council or the General Assembly and decisions by international courts and treaty bodies. A Trial Chamber of the International Criminal Tribunal for Rwanda held that “expressions of ethnic hatred” and “hate speech” constituted the crime against humanity of persecution 585. In support, it cited a range of sources drawn from international human rights law, including Article 7 of the Universal Declaration of Human Rights, relevant provisions of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, and case law of the Human Rights Committee and the European Court of Human Rights 586. The conviction was upheld on appeal although Judge Theodor Meron disputed whether the condemnation of hate speech absent direct incitement to violence could indeed be considered a norm of customary human rights law in light of the pattern of reservations to the treaty provisions on hate speech. His views echoed those of the United States, which had challenged the Human Rights Committee’s   Prosecutor v. Nahimana et al. (ICTR-99-52-T), Judgment and Sentence, 3 December 2003, para. 1076. 586   Ibid., paras. 983-999, 1074. 585

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view that it is contrary to customary international law “to permit the advocacy of national, racial or religious hatred” 587. The United States pointed to “the reservations which a large number of States Parties have submitted to Article 20” of the International Covenant on Civil and Political Rights 588. But while it is true that the treaty generated a not insignificant reaction from States parties at the time of ratification, in most cases this took the form of interpretative declarations or understandings rather than genuine reservations. Moreover, most of them were to Article 20 (1) which is not concerned with racist speech and hate propaganda. 5.3.  Principle of legality International criminal law has been haunted by the principle of legality since the pioneering negotiations of the Paris Peace Conference in 1919. When what was considered to be the most terrible war in the history of humanity came to an end, with a loss of life in excess of 15 million people, there was hunger for justice. The allegations included atrocities committed in Belgium and northern France during the occupation by Germany and those of the Ottoman Turks against the Armenian minority in Anatolia, as well as war crimes such as the murder of prisoners and the use of prohibited weapons, and responsibility for the starting the war itself. The   General Comment 24, Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, para. 8. 588   “Observations on General Comment No. 24 (52), on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant”, Report of the Human Rights Committee, Vol. I, A/50/40, Annex VI, pp. 126-134, at p. 128. 587

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Commission on Responsibilities hesitated about charging the German emperor with criminal liability for initiating the war, not because it was not convinced that he was responsible but because it lacked confidence that such a crime existed in July and August 1914. When the British Solicitor General argued that it was time for legal innovation 589, the American Secretary of State replied: “I must confess that I am a little surprised at your remarks. I never conceived your position to be part of the general jurisprudence of England – the ancient jurisprudence upon which my country has modelled its law and practice – that there is any provision by which a criminal can be brought to justice when there is no penal statute by which to punish him” 590. In its memorandum of reservations, the United States objected to plans to prosecute violations of the “laws and principles of humanity” that were too uncertain to have any place in a court of criminal justice 591. It said “an act could not be a crime in the legal sense of the word, unless it were made so by law, and that the commission of an act declared to be a crime by law could not be punished unless the law prescribed the penalty to be inflicted” 592. The principle of legality was discussed in a 1935 precedent of the Permanent Court of International Justice condemning Nazi decrees in Danzig that allowed courts to punish new crimes where they were “deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling”. The Permanent Court said this was incompatible with the prohibition on  Seventh Meeting of the Commission on Responsibilities, 17 March 1919, Minutes: USNA 181.1201/7 (M 820, Roll 141, 403-423), p. 3. 590   Ibid., pp. 4-5. 591  “Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities”, (1920) 14 American Journal of International Law 127, at p. 134. 592   Ibid., p. 145. 589

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retroactive punishment in the Constitution of the Free City, which was guaranteed by the League of Nations. The Nazi lawyer arguing before the Permanent Court contended that under the new legislation, “real justice will take the place of formal justice, and that henceforth the rule will be nullum crimen sine poena instead of nullum crimen sine lege” 593. The issue returned to international criminal justice at the end of the Second World War. The United States was no longer represented by a stubborn positivist, as had been the case in Paris in 1919. Its delegate to the London Conference and the Prosecutor before the Tribunal, Robert Jackson, seemed unconstrained by a mechanistic application of the principle of legality. In his post-trial report to President Harry Truman, Jackson invoked the words of Benjamin N. Cardozo: “The power of the precedent is the power of the beaten path” 594. The International Military Tribunal said that international criminal law was “not static, but by continual adaptation follows the needs of a changing world” 595. It dismissed a defence challenge explaining that “the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances   Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Series A/B No. 65 (1935), p. 52. See Dean Spielmann, “Une internationalisation avant la lettre des droits de l’homme? / A propos de l’avis consultatif de la Cour permanente de Justice internationale du 4 décembre 1935”, in Lucius Caflisch et al. (eds.), Liber Amicorum Luzius Wildhaber, Kehl: Engel, 2007, pp. 403422. 594  Jackson’s citation is not precise. Cardozo wrote that “the power of precedent, when analysed, is the power of the beaten track”: Benjamin Cardozo, The Growth of the Law, New Haven, CT: Yale University Press, 1924, p. 62. Perhaps Cardozo was inspired by Oliver Wendell Holmes Jr., “The Path of the Law”, (1897) 10 Harvard Law Review 457. 595   United States et al. v. Goering et al., Judgment, 30 September-1 October 1946, (1949) I IMTA.171, at p.-221. William Schabas 978-90-04-52150-6 593

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have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished” 596. Commenting on the issue, Hans Kelsen argued that “the retroactivity of the law applied to them can hardly be considered as absolutely incompatible with justice”. He said that justice required that the Nazi leaders be brought to book: “[T]o punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions” 597. In the Eichmann trial, judges referred with approval to Hans Kelsen, writing that “if it is the contention of counsel for the appellant that we must apply international law as it is, and not as it ought to be from the moral point of view, then we must reply that precisely from a legal point of view no such rule of international law is to be found” 598. A link between international human rights law and international criminal law was made explicit when the principle of legality was formulated in the Universal Declaration of Human Rights: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed” 599. But what was “a penal offence, under . . . international law?” Two years earlier, the General Assembly had recognised genocide as “a crime under   Ibid., at p. 219.  Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?”, (1947) 1 International Law Quarterly 153, at p. 165. 598   A.G. Israel v. Eichmann, (1968) 36 ILR 5 (DC), para. 7 (3) (emphasis in the original). 599  Universal Declaration of Human Rights, A/RES/217 (III) A, Article 11 (2). William A. Schabas - 978-90-04-52150-6 596 597

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international law” 600. At the same time, it gave its blessing to the “principles of international law recognised by the Charter of the Nürnberg Tribunal”, although without any explicit recognition of the three crimes defined in the Charter as crimes under international law 601. This ambiguity about whether the Nuremberg judgment actually complied with the principle of legality as defined in the Universal Declaration of Human Rights manifested itself a year later as the Commission on Human Rights was drafting what was then entitled the International Covenant on Human Rights. The British were concerned that merely repeating the text of Article 11 (2) of the Universal Declaration “might be thought to impugn the validity of the judgments of the Nuremberg Tribunal”. They suggested a new paragraph be added: “Nothing in this Article shall prejudice the trial and punishment of any person for the commission of any act which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations” 602. Their proposal became a last minute addition to the European Convention on Human Rights, adopted in November 1950. It was the first treaty whose express purpose was to implement the provisions of the Universal Declaration 603. Article 15 (2) of the International Covenant on Civil and Political Rights,  The Crime of Genocide, A/RES/96(1).   Affirmation of the Principles of International Law recognised by the Charter of the Nürnberg Tribunal, A/RES/95 (I). 602   Comments of Governments on the draft International Covenant on Human Rights and Measures of Implementation, United Kingdom, E/CN.4/353/Add.2, 7 January 1950, p. 4. 603  Report to the Committee of Ministers Submitted by the Committee of Experts Instructed to Draw Up a Draft Convention of Collective Guarantee of Human Rights and Fundamental Freedoms, Doc. CM/WP 1 (5) 15, A 924, Collected edition of the “Travaux préparatoires” of the European Convention on Human Rights, Vol. IV, pp. 2-55, at p. 22. 600 601

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adopted in 1966, is to the same effect as the European Convention text, although the anachronistic reference to “civilised nations” is replaced with “the community of nations”. The European Commission on Human Rights wrote that “it transpires from the preparatory work to the Convention that the purpose of para. 2 of Article 7 is to specify that this Article does not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish war crimes, and collaboration with the enemy and does not in any way aim to pass legal or moral judgment on those laws” 604. Over time, the prohibition of retroactive criminal prosecution in human rights seemed to become increasingly rigid. The principle of legality has been described as a peremptory norm (jus cogens) by the Appeals Chamber of the Special Tribunal for Lebanon 605 and by some judges of the European Court of Human Rights 606. Judge Ammoun of the International Court of Justice   Touvier v. France, No. 29420/95, Commission Decision of 13 January 1997, DR 88-B, p. 161. The Commission’s statement received endorsement from the Court: Kononov v. Latvia, No. 36376/04, para. 115, 24 July 2008; Kononov v. Latvia, No. 36376/04, Joint Dissenting Opinion of Judges Fura-Strandström, Davíd Thór Björgvinsson and Ziemele, para. 2, 24 July 2008; Van Anraat v. the Netherlands (Dec.), No. 65389/09, para. 186, 6 July 2010. See also Linkov v. the Czech Republic, No. 10504/03, paras. 41-42, 7 December 2006. 605   Unnamed defendant (STL-11-01/I), Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2011, para. 76. 606   Maktouf and Damjanović v. Bosnia and Herzegovina [GC], Nos. 2312/08 and 34179/08, ECHR 2013-IV, Concurring Opinion of Judge Pinto de Albuquerque, joined by Judge Vučinić, para. 9; Ilnseher v. Germany [GC], Nos. 10211/12 and 27505/14, 4 December 2018, Dissenting Opinion of Judge Pinto de Albuquerque, joined by Judge Dedov, para. 75. 604

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described it as one of “the most sacred principles of criminal law” 607. But judicial practice suggests that it is actually often applied rather flexibly, especially when international crimes are at stake. Resisting a strictly positivistic application of the principle, the European Court of Human Rights has required only that the criminal offence be “accessible” and “foreseeable” to the accused person at the time of the punishable act. It has insisted on application of the norm based upon “the specific circumstances of the case” 608, upholding prosecutions based upon unwritten norms, in particular when they concern serious crimes that violate human dignity 609. Along the same lines, Judge Cançado Trindade of the International Court of Justice has written that “[t]he imperative of the preservation of human dignity stands well above pleas of non-retroactivity” 610. The reference to “international law” in the human rights treaty provisions prohibiting retroactive crimes compels reference to sources of international criminal law, both conventional and customary. According to the European Court of Human Rights, Article 7 of the European Convention remains “wholly valid where . . .   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, Separate Opinion of Judge Ammoun, Vice-President, p. 71. 608   Advisory Opinion Concerning the Use of the “Blanket Reference” or “Legislation by Reference” Technique in the Definition of an Offence and the Standards of Comparison Between the Criminal Law in Force at the Time of the Commission of the Offence and the Amended Criminal Law [GC], 29 May 2020, para. 92. 609   CR v. The United Kingdom, 22 November 1995, para. 42, Series A, No. 335-C. 610   Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 422, Separate Opinion of Judge Cançado Trindade, para. 149. 607

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an international instrument for the protection of human 611 rights of universal scope has been enacted”  . In identifying “universal scope”, near universal ratification, for example of the Geneva Conventions, may be relevant. But the Geneva Conventions only codify a small set of war crimes, in the form of “grave breaches”, and these are only applicable to international armed conflict. The Genocide Convention has only been ratified by 152 States. And there is still as yet no comprehensive treaty on crimes against humanity, although one may not now be far off 612. Consequently, the application of the nullum crimen principle very often forces international human rights courts and treaty bodies to consider the situation under customary law. The Grand Chamber of the European Court of Human Rights examined the scope of war crimes at the time of the Second World War in Kononov v. Latvia. The case involved the prosecution of a Soviet war hero in newly independent Latvia for an atrocity perpetrated during the German occupation in 1944. Kononov had directed what amounted to a summary execution of several Latvian peasants believed to have been armed supporters of the occupying forces and suspected of facilitating the arrest and murder of partisans. The application was successful by a narrow majority of a seven-judge Chamber of the Court. It held that at the time of the Second World War there was no prohibition on killing irregular combatants based solely upon their status, and that the rule had only changed decades later with the adoption of the first Additional Protocol to the Geneva Conventions 613. The   Ould Dah v. France (Dec.), No. 13113/03, ECHR 2009.  Crimes Against Humanity, A/RES/75/136; Crimes Against Humanity, Report of the Sixth Committee, A/75/427. 613   Kononov v. Latvia, No. 36376/04, para. 131, 24 July 2008, referring to Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Article 50. 611

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case was subsequently revisited by the Grand Chamber which, by fourteen to three, took the opposite position. The Grand Chamber judgment contains a lengthy overview of the history of war crimes 614. It said that “by May 1944 war crimes were defined as acts contrary to the laws and customs of war and that international law had defined the basic principles underlying, and an extensive range of acts constituting, those crimes” 615. In this context, it cited the celebrated “elementary considerations of humanity” pronouncement of the International Court of Justice in the Corfu Channel case 616. According to the Grand Chamber, even if the victims were combatants who had actively participated in hostilities, they were in effect prisoners of Kononov and his comrades and therefore entitled to protection against ill treatment and summary execution 617. Although crimes against humanity were recognised under international law at Nuremberg, their scope was severely restricted by the requirement of a nexus with international armed conflict and aggressive war, as discussed above. It is beyond debate that by the 1990s, this restriction on crimes against humanity had disappeared, and they could be prosecuted even when committed in peacetime. The European Court has dismissed complaints founded on the nullum crimen principle with respect to prosecution for crimes against humanity in peacetime dating from the 1940s and 1950s, implying that there is no nexus under customary international law 618. However, as Antonio Cassese wrote in an article criticising the case law of the European   Kononov v. Latvia [GC], No. 36376/04, paras. 65-142, 206209, ECHR 2010-IV.   Ibid., para. 213. 616   Ibid., para. 215, referring to Corfu Channel (United Kingdom v. Albania), ICJ Reports 1949, p. 4, at p. 22. 617   Ibid., para. 216. 618   Kolk and Kislyiy v. Estonia (Dec.), Nos. 23052/04 and 24018/04, ECHR 2006-I; Penart v. Estonia (December),

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Court, “the indispensable link between those crimes and war had not yet been severed” in the late 1940s. He said it was only later, in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace 619. In some cases, the legal provisions of national law have been inspired by international law but reflect it in an inexpert and inaccurate manner. For example, Hungarian law refers to the notion of crimes against humanity set out in common Article 3 of the Geneva Conventions. Yet common Article 3 does not purport to define criminal offences. The European Court said that it was not its role “to seek to establish authoritatively the meaning of the concept of ‘crime against humanity’ as it stood in 1956” 620. The rather clumsy and idiosyncratic definition in the Hungarian law probably contributed to the finding of a violation by the Grand Chamber in an application submitted by a former police chief who had been convicted for a killing that took place during the 1956 revolution 621. Although the authoritative definition of the crime of genocide is set out in Article II of the 1948 Convention, it has frequently been modified when incorporated into national legislation 622. Moreover, some national courts No. 14685/04, 24 January 2006; Korbely v. Hungary [GC], No. 9174/02, para. 83, ECHR 2008-IV. 619  Antonio Cassese, “Balancing the Prosecution of Crimes Against Humanity and Non-Retroactivity of Criminal Law, The Kolk and Kislyiy v. Estonia Case before the ECHR”, (2006) 4 Journal of International Criminal Justice 410, at p. 413. 620   Korbely v. Hungary [GC], No. 9174/02, para. 78, ECHR 2008-IV. 621   Ibid. 622  Tamás Hoffmann, “The Crime of Genocide in Its (Nearly) Infinite Domestic Variety”, in Marco Odello and Piotr Łubiński (eds.), The Concept of Genocide in International Law: Developments after Lemkin, London: Routledge, 2020, pp. 67-97. William A. Schabas - 978-90-04-52150-6

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have developed interpretations of the crime that are at variance with international jurisprudence. In Jorgić v. Germany, the European Court of Human Rights noted that a broad concept of genocide was being applied by the national courts of Germany that was not consistent with the prevailing interpretation of the crime by international tribunals, notably the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice. Nevertheless, said the Chamber, “while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the Court finds that the applicant, if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992 623. The Court noted, in this context, that Jorgić had been convicted of several killings, detention and ill treatment as leader of a paramilitary group pursuing a policy of ethnic cleansing. Consequently, “ ‘the national courts’ interpretation of the crime of genocide could reasonably be regarded as consistent with the essence of that offence and could reasonably be foreseen by the applicant at the material time” 624. Following independence in 1991, Lithuanian legislation was enacted enlarging the definition of genocide to include the protection of political groups, which had deliberately been excluded from the 1948 Convention by the General Assembly 625. There is no problem with   Jorgić v. Germany, No. 74613/01, para. 114, ECHR 2007III. 624   Ibid., para. 115. 625  Hundred and Twenty-Eighth Meeting, 29 November 1948, Official Records of the General Assembly, 1948, pp. 663664. 623

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the nullum crimen provision if Lithuania only prosecutes the genocide of political groups perpetrated after the amendments to its legislation. But Lithuania proceeded to charge former Soviet police officials with genocide perpetrated during the early 1950s. It argued that although political groups were not included in the 1948 treaty definition, they had been listed in the definition of genocide adopted by the General Assembly in 1946 626. Even if the drafters of the Convention had opted for a narrower scope of genocide, as a compromise in the course of negotiations and with respect to a treaty that imposed a range of obligations, the broader definition in the 1946 General Assembly resolution was not only reflective of customary international law but it was also clearly accessible and foreseeable at the time. The Grand Chamber, by the narrowest of majorities, rejected Lithuania’s arguments 627. 5.4.  Fair trial rights The Moscow Declaration of 1 November 1943 pledged that those responsible for atrocities, massacres and executions would be punished according to the laws of the countries where the crimes took place. However, Roosevelt, Stalin and Churchill also said that their declaration was “without prejudice to the case of the major war criminals . . . who will be punished by the joint decision of the Governments of the Allies” 628. Churchill promptly ordered that British officials begin “to prepare a single list of such major war criminals, who would be declared outlaws and might be put to  Crime of Genocide, A/RES/96 (I).   Vasiliauskas v. Lithuania [GC], No. 35343/05, ECHR 2015VII. 628   Committee on Foreign Relations and United States Department of State, A Decade of American Foreign Policy: Basic Documents, 1941-1949, Washington, DC: US Government Printing Office, 1950, pp. 13-14. 626 627

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death without trial on falling into the hands of the Armed Forces” 629. Names were assembled by bureaucrats in the Foreign Office who pronounced themselves on whether or not specific individuals should be executed summarily upon capture 630. The British maintained this position until shortly before the London Conference, warning the Americans of the danger that if a trial were to be held, the accused “must have in such a trial all the rights properly conceded to an accused person”. With peculiar logic they said that British public opinion would be offended by the denial of a fair defence to an accused, as if somehow a summary execution with no trial at all would pass muster 631. Article 16 of the Charter of the International Military Tribunal was entitled “Fair trial for defendants”. It provided for defendants to receive full particulars of the charges, to obtain legal counsel, to call witnesses and to cross-examine witnesses against them. It should be borne in mind that at the time there were no detailed model provisions of international human rights law on which to rely. In his legendary opening statement at the Nuremberg trials, American prosecutor Robert Jackson promised “fair and dispassionate hearings”. Jackson said this was “the best-known protection to any man with a defence worthy of being heard”: “If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they  “Conclusions of a Meeting of the War Cabinet held at 10 Downing Street, S.W. 1, on Wednesday 10th November, 1943, at 6 p.m.”, TNA CAB 65/36. 630   See, for example, “Treatment of Major Enemy War Criminals, Memorandum by the Secretary of State for Foreign Affairs”, 16 June 1944, TNA FO 371/38996. 631   “Aide-Mémoire from the United Kingdom, 23 April 1945”, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington, DC: US Government Printing Office, 1949, pp. 18-20. 629

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are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favour. But they do have a fair opportunity to defend themselves-a favour which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.” 632 At the final session of the trial, the defendants were invited to make a statement. Most of them took advantage of the opportunity to claim their innocence, to criticise the prosecutors and in some cases to express a degree of remorse. If they had found the trial to be unfair, this would have been the occasion to register their protest. None of them did 633. “It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings”, said the Secretary-General in his report to the Security Council accompanying the draft Statute of the International Criminal Tribunal for the former Yugoslavia 634. The Secretary-General cited Article 14 of the International Covenant on Civil and Political Rights, the gold standard in terms of codification of the  “First Day, 20 November 1945, Morning Session”, (1949) 2 IMT 102. 633  “Two Hundred and Sixteenth Day, 31 August 1945”, (1949) 22 IMT 366-410. 634  Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704 (1993), para. 106. 632

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right to a fair trial in international human rights law 635. A modified version of Article 14 appears in the statutes of the ad hoc tribunals 636. Several specific provisions of the Rules of Procedure and Evidence, as well as norms of customary international law, completed the protection of the accused before the tribunals 637. For example, the tribunals were to exclude evidence if its probative value was substantially outweighed by the need to ensure a fair trial 638. Judges of the International Criminal Tribunal for the former Yugoslavia, in the first major ruling of the Appeals Chamber, said: “For a Tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments” 639. At the International Criminal Court, the right to a “fair hearing” is conferred by Article 67 of the Rome Statute upon an “accused” person “[i]n the determination of any charge”. The provision sets out “minimum  International Covenant on Civil and Political Rights, (1976) 999 UNTS 171. 636  Statute of the International Criminal Tribunal for the former Yugoslavia, S/RES/827 (1993), Annex, Article 21; Statute of the International Criminal Tribunal for Rwanda, S/ RES/955 (1994), Annex, Article 20; Statute of the Special Court for Sierra Leone, Article 17. 637  See e.g. First Annual Report of the International Criminal Tribunal for the former Yugoslavia, A/49/342-S/1994/1007, Annex, paras. 22-26. 638   Rules of Procedure and Evidence [of the International Criminal Tribunal for the former Yugoslavia], Rule 89 (D). Also: ibid., Rule 70 (G); Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, Rule 70 (F); Rules of Procedure and Evidence of the Special Court for Sierra Leone, Rules 70 (F), Rule 95. 639   Prosecutor v. Tadić (IT-94-6-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 45. 635

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guarantees”, as the introduction to paragraph 1 makes clear. Other provisions of the Statute are also relevant to these due process rights, such as the guarantee of reasoned judgment, enshrined in Article 74 640. Reasons for decisions are also required with respect to evidentiary matters pursuant to Rule 64 (2). Article 67 closely resembles Article 14 (3) of the International Covenant on Civil and Political Rights as well as fair trial clauses found in national constitutions. The Rome Statute also devotes a distinct and quite detailed Article to the presumption of innocence. Article 66 specifies that the prosecution bears the burden to prove guilt beyond a reasonable doubt. According to a Pre-Trial Chamber of the International Criminal Court, “it is guided by the principle in dubio pro reo as a component of the presumption of innocence, which as a general principle in criminal procedure applies, mutatis mutandis, to all stages of the proceedings, including the pre-trial stage” 641. The presumption of innocence has other manifestations, for example, in the right of an accused person to interim release pending trial, subject to exceptional circumstances in which preventive detention may be ordered, the right of the accused person to be detained separately from those who have been convicted, and the right of the accused to remain silent during the investigation and during trial. Allowing the defence to submit a “no case to answer” application upon the conclusion of the Prosecutor’s case has been held to flow inexorably from the presumption of innocence despite the silence of the Statute and the Rules   Situation in Darfur, Sudan (ICC-02/05), Decision on the Requests for Leave to Appeal the Decision on the Application for Participation of Victims in the Proceedings in the Situation, 6 February 2008, p. 10. 641   Prosecutor v. Bemba (ICC-01/05-01/08), Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 31. 640

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on such a procedure 642. The first Prosecutor of the Court was censured by the Appeals Chamber for inappropriate and prejudicial remarks. In a media interview where he described the accused as a liar, the Chamber said his statements were “clearly inappropriate in light of the presumption of innocence” 643. In another case, where a press release by the Prosecutor claimed the accused was responsible for mass rapes, a Pre-Trial Chamber said that “a clear indication that these are only allegations made by the Prosecutor would have been desirable with respect to the passage in question” 644. It said it was “of the view that when making his future public statements, the Prosecutor should be mindful of the suspect’s right to be presumed innocent until proved guilty” 645. Detailed examination of the fair trial principles applicable before the international criminal tribunals is beyond the scope of this course 646. As a general proposition, the trials observe well-recognised principles quite scrupulously. Perhaps the most glaring challenge is the extraordinary length of the proceedings. Moreover, as a general rule the accused is held in preventive detention throughout the proceedings. At the International Criminal Court this has meant that a number of individuals have been held in the Detention Unit in The Hague for many years,   Prosecutor v. Ruto et al. (ICC-01/09-01), Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on “No Case to Answer” Motions), 3 June 2014, para. 17. 643   Prosecutor v. Gaddafi et al. (ICC-01/11-01/11 OA 3), Decision on the Request for Disqualification of the Prosecutor, 12 June 2012, para. 33. 644   Prosecutor v. Mbarushimana (ICC-01/04-01/10), Decision on the Defence Request for an Order to Preserve the Impartiality of the Proceedings, 31 January 2011, para. 12. 645   Ibid., para. 17. See also, Prosecutor v. Bemba et al. (ICC01/05-01/08), Decision on “Defence Request for Withdrawal or Clarification of a Filing”, 11 March 2014, para. 8. 646   For more detailed treatment, see Yvonne McDermott, Fairness in International Criminal Trials, Oxford: Oxford University Press, 2016. 642

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with some eventually winning acquittal. For example, Laurent Gbagbo, the former president of Côte d’Ivoire, first appeared before the Court on 5 December 2011. At the time he was sixty-six years old. His trial began more than four years later and ended in January 2019 when the Trial Chamber granted a “no case to answer” application upon the completion of the Prosecutor’s case 647. He was granted interim release on 1 February 2019 pending the Prosecutor’s appeal 648, having spent more than seven years in detention many thousands of kilometres from his home. The case of Jean-Pierre Bemba provides another example. He appeared before the Court in July 2008. The trial began in November 2010, almost two and a half years later. Bemba was convicted and sentenced, but this was reversed by a judgment of the Appeals Chamber on 8 June 2018 649. He had spent ten years in detention only to be found not guilty. Article 67 of the Rome Statute recognises the right to be tried without “undue delay”. The irony of the situation is that the inordinate length of proceedings before the International Criminal Court is often justified by the imperatives of fairness. Within the concept of the right to a fair hearing, international case law has developed the notion of “equality of arms” 650. The concept has been readily   Prosecutor v. Gbagbo and Blé Goudé (ICC-02/11-01/15), Transcript, 16 January 2019. 648   Prosecutor v. Gbagbo and Blé Goudé (ICC-02/11-01/15 OA14), Judgment on the Prosecutor’s Appeal Against the Oral Decision of Trial Chamber I Pursuant to Article 81 (3) (c) (i) of the Statute, 1 February 2019. 649   Prosecutor v. Bemba (ICC-01/05-01/08 A), Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment Pursuant to Article 74 of the Statute”, 8 June 2018. 650  Charles Chernor Jalloh and Amy DiBella, “Equality of Arms in International Criminal Law: Continuing Challenges”, in William Schabas, Yvonne McDermott and Niamh Hayes (eds.), The Ashgate Research Companion to International

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adopted by judges at the International Criminal Court 651. According to Pre-Trial Chamber II, “[f]airness is closely linked to the concept of ‘equality of arms’, or of balance between the parties during the proceedings. As commonly understood, it concerns the ability of a party to a proceeding to adequately make its case, with a view to influencing the outcome of the proceedings in its favour” 652. The Registry’s Single Policy Document on legal aid lists “equality of arms” as Principle 1: “The payment system must contribute to maintaining a balance between the resources and means of the accused and those Criminal Law, Farnham, UK and Burlington, VT: Ashgate, 2013, pp. 251-288. 651   Prosecutor v. Ruto et al. (ICC-01/09-01/11 OA 7 OA 8), Decision on Mr William Samoei Ruto’s and Mr Joshua Arap Sang’s Applications for Leave to Make Further Submissions and on Mr Joshua Arap Sang’s Corrigendum of 26 June 2014, 4 July 2014, para. 12; Prosecutor v. Gaddafi et al. (ICC-01/11-01/11 OA 4), Decision on the Libyan Government’s Request to File Further Submissions, 12 September 2013, para. 12; Prosecutor v. Bemba (ICC01/05-01/08 OA), Judgment on the Appeal of Mr. JeanPierre Bemba Gombo Against the Decision of Pre-Trial Chamber III Entitled “Decision on Application for Interim Release”, 16 December 2008, para. 32; Prosecutor v. Katanga (ICC-01/04-01/07 OA), Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May 2008, para. 73; Prosecutor v. Katanga (ICC-01/04-01/07 OA 2), Judgment on the Appeal of Mr Germain Katanga Against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May 2008, para. 63. 652   Situation in Uganda (ICC-02/04-01/05), Decision on Prosecutor’s Application for Leave to Appeal in Part PreTrial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest under Article 58, 19 August 2005, para. 30. Also Prosecutor v. Lubanga (ICC-01/0401/06), Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation, 6 November 2006, p. 7. William A. Schabas - 978-90-04-52150-6

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of the prosecution” 653. A Trial Chamber described this as “a relevant consideration” and said that “[g]uided by the principle of equality of arms, and in light of the size of the case and the right of the accused to an effective defence, the Chamber decides that the Defence is to be granted the necessary resources to recruit a second legal assistant for the trial phase, up until closing statements” 654. In an important pronouncement of the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber stated “that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts. This principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case 655. Some provisions of the Rome Statute and the other instruments depart from the principle of equality, but to the benefit of the accused. For example, the right of appeal is larger for a convicted person than for the Prosecutor 656. The defence has the right to be the last party to examine  Registry’s Single Policy Document on the Court’s Legal Aid System, ICC-ASP/12/3, para. 9. 654   Prosecutor v. Ntaganda (ICC-01/04-02/06), Reasons for Review of Registrar’s Decision on Defence Resources, 29 October 2014, para. 43. 655   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, paras. 52-55. 656  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 81 (1) (b) (iv). Compare with Prosecutor v. Bagasora et al. (ICTR 98-37-A), Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Théoneste Bagasora and 28 Others, 8 June 1998, paras. 34-35. 653

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a witness 657, as well as the last to make a closing statement 658. The Prosecutor is required to “investigate incriminating and exonerating circumstances equally” 659, a duty that is subject to a degree of control by the PreTrial Chamber 660, and one that is not, of course, imposed reciprocally upon the defence. In this context, the Appeals Chamber has also described the procedure before the Court as “adversarial” 661. This is consistent with case law of the European Court of Human Rights 662. Although the right to a fair trial is presented in Article 67 as one belonging to an accused person, “fairness also extends to other parties in proceedings such as the Prosecution” 663. Fairness “should be preserved to the benefit of all  Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr.1, part II.A, Rule 140 (1) (d).   Ibid., Rule 141 (2). 659  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 54 (1) (a). 660   Ibid., Article 56 (3) (a). 661   Prosecutor v. Bemba (ICC-01/05-01/08 OA), Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo Against the Decision of Pre-Trial Chamber III Entitled “Decision on Application for Interim Release”, 16 December 2008, para. 32. But note the following remark: “Concluding, the Single Judge wishes to recall that the Statute does not establish a purely adversarial system of criminal proceedings in which third actors cannot participate. The fact that the participation of victims has been foreseen in the Statute proves that this was not the intention of the historic legislator”. Prosecutor v. Bemba (ICC-01/05-01), Fourth Decision on Victims’ Participation, 12 December 2008, para. 97. 662   Öcalan v. Turkey [GC], No. 46221/99, para. 146, ECHR 2005-IV; Uoti v. Finland, No. 61222/00, para. 32, 9 January 2007; Botmeh and Alami v. the United Kingdom, No. 15187/ 03, para. 37, 7 June 2007; Metelitsa v. Russia, No. 33132/02, para. 29, 22 June 2006. 663   Situation in Uganda (ICC-02/04), Decision on the Prosecution’s Application for Leave to Appeal the Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 19 December 2007, para. 27. 657 658

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participants in the proceedings” 664. In Ngudjolo, two dissenting judges of the Appeals Chamber concluded that “the Trial Chamber failed to ensure fairness of the trial with respect to the Prosecutor” 665. The Appeals Chamber of the International Criminal Tribunal has said that “application of the concept of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the interests of the victims of the offence charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community)” 666. National jurisdictions are subject to a varying degree of international supervision of their respect for the right to fair trial, through petition mechanisms like those of the Optional Protocol to the International Covenant on Civil and Political Rights and the European Court of Human Rights, reporting obligations pursuant to relevant treaties and the special procedures and Universal Periodic Review of the Human Rights Council. The international criminal tribunals have not been amenable to such oversight. Because many of the tribunals have a seat in   Prosecutor v. Kony et al. (ICC-02/04-01/05), Decision on the Prosecutor’s Applications for Leave to Appeal Dated the 15th Day of March 2006 and to Suspend or Stay Consideration of Leave to Appeal Dated the 11th Day of May 2006, 10 July 2006, para. 24. 665   Prosecutor v. Ngudjolo (ICC-01/04-02/12), Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser, 27 February 2015, para. 6; also, para. 26. The opinion claims support for the principle in the case law of the ad hoc tribunals, citing Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, paras. 43, 44, 48 and 52. This is reading a lot into statements made in the context of a defence claim that “equality of arms” had not been respected. 666   Prosecutor v. Aleksovski (IT-95-14/1-AR73), Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras. 24-25. For another example of the doctrine of “equality of arms” working in favour of the Prosecutor: Prosecutor v. Kupreškić et al. (IT-95-16-T), Decision, 11 January 1999. 664

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The Hague, there have been attempts to challenge alleged violations of the right to a fair trial at the European Court of Human Rights. The European Court of Human Rights ruled that it was without jurisdiction to consider applications that concern the activity of the International Criminal Tribunal for the former Yugoslavia. It said that “it is not axiomatic that a criminal trial must engage the responsibility under public international law of the State on whose territory it is held” 667. Similarly, it has stated that the fact someone is detained on the territory of a State party by an international criminal tribunal “does not of itself suffice to bring questions touching on the lawfulness of his detention within the ‘jurisdiction’ of the Netherlands as that expression is to be understood for the purposes of Article 1 of the Convention” 668. 5.5. Penalties There is an important interaction between international human rights law and international criminal law with respect to penalties. Given the gravity of international crimes, as a general rule the penalties imposed upon convicted persons will be very severe. The International Military Tribunals established following the Second World War were empowered to impose upon a convicted war criminal “death or such other punishment as shall be determined by it to be just” 669. The International Military   Galić v. The Netherlands (Dec.), No. 22617/07, para. 44, 9 June 2009; Blagojević v. The Netherlands (December), No. 49032/07, para. 44, 9 June 2009. 668   Djokaba Lambi Longa v. The Netherlands (Dec.), No. 33917/12, para. 73, ECHR 2012-IV. 669  Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, Article 27; Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 4 Bevans 20, as amended, 4 Bevans 27 (“Charter of the Tokyo Tribunal”), Article 16. 667

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Tribunal imposed twelve death sentences although only ten were actually carried out. One of the defendants, Martin Bormann, was already dead; he had been tried in absentia. Another, Herman Goering, committed suicide in his cell the day before he was to be hanged. There were seven custodial sentences, ranging from ten years’ imprisonment to life. The last of the detainees was Rudolf Hess, who died by his own hand in 1987. All alone in Spandau Prison, in Berlin, what amounted to solitary confinement was challenged by his wife in an application to the European Commission on Human Rights. Ruling that he was in what amounted to an international prison, the Commission said this could not be considered to be “within the jurisdiction” of the United Kingdom and declined to intervene 670. The “Secretariat draft” of the Genocide Convention, attributable to Raphaël Lemkin, Vespasian Pella, Henri Donnedieu de Vabres and John Humphrey, contains two annexes with statutes for an international criminal tribunal that include general sentencing texts essentially adapted from the 1937 League of Nations treaty on the creation of an international criminal court 671. Both of them contemplate the death penalty 672. The Committee on International Criminal Jurisdiction established by the General Assembly, charged with preparing one or more draft conventions and proposals concerning the   Hess v. United Kingdom, Hess v. The United Kingdom, No. 6231/73, Commission Decision of 28 May 1975, (1975) 18 YB 147, DR 2, p. 72. 671  Convention for the Creation of an International Criminal Court, in Proceedings of the International Conference on the Repression of Terrorism, Geneva, 1-16 November 1937, p. 5, Articles 39-42. 672  Establishment of a Permanent International Criminal Court for the Punishment of Acts of Genocide, E/447, Annex I, pp. 67-76, at p. 74; Establishment of an Ad Hoc International Criminal Court for the Punishment of Acts of Genocide, E/447, Annex II, pp. 77-84, at p. 83. 670

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establishment of an international criminal court, generated a draft statute that allowed the future tribunal to impose such penalties as it judged appropriate, without making specific reference to the death penalty 673. The Committee also felt that it might be appropriate for the convention to “lay down limitations with respect to the penalty”, giving the specific example that it might proclaim that “the death penalty should not be imposed” 674. Later, some delegates argued that “according to present international law, penalties up to and including the death sentence could be imposed for crimes against humanity . . .” 675 One of the great human rights issues of our time is the abolition of the death penalty. Over the past thirty years, since international criminal justice revived, the situation has evolved from one where a majority of States still retained capital punishment to one where it is actually practised in fewer than thirty, and that number continues to decline year on year 676. This is an area where there has been a genuine synergy between international criminal law and international human rights law, with each of the two systems contributing to the progressive development in the other. When the International Criminal Tribunal for the former Yugoslavia was established in 1993, in his report to the Security Council on the draft statute the Secretary-General wrote: “The International Tribunal should not be empowered to impose the death  Report of the Committee on International Criminal Jurisdiction on its Session Held from 1 to 31 August 1951, A/2136, paras. 110–1. 674   Ibid., para. 111. 675   Report of the 1953 Committee on International Criminal Jurisdiction 27 July-20 August 1953, A/2136, para. 110. 676   Compare Capital Punishment, Report of the SecretaryGeneral, E/1990/38/Rev.1 with Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, Report of the Secretary-General, E/2020/53. 673

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penalty” 677. Submissions by the Conference on Security and Cooperation in Europe, Italy, Russia, Canada, France and the Netherlands all opposed including capital punishment 678. Two contributors to the debate who might have been expected to support the death penalty, the Organisation of the Islamic Conference and the United States of America, avoided any direct confrontation on the subject 679. It should be borne in mind that at the time, still only a minority of States had abolished the death penalty. The following year, Rwanda objected to the exclusion of the death penalty in the Statute of the International Criminal Tribunal for Rwanda, but to no

 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704 (1993), para. 112. 678  Proposal for an International War Crimes Tribunal for the Former Yugoslavia, by Rapporteurs (Corell – Türk – Thune) under the CSCE Moscow Human Rights Dimension to Bosnia – Herzegovina and Croatia, 9 February 1993, pp. 111112; Letter from the Permanent Representative of Italy to the United Nations Addressed to the Secretary-General, S/25300, Article 7 (1-2); Letter from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General (5 April 1993), S/25537, Article 22 (3); Letter dated 13 April 1993 from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General’, A/25594; Letter dated 10 February 1993 from the Permanent Representative of France to the United Nations Addressed to the SecretaryGeneral, S/25266, para. 127 (b); Letter dated 30 April 1993 from the Permanent Representative of The Netherlands to the United Nations Addressed to the Secretary-General, A/25716. 679   Letter from the Representatives of Egypt, the Islamic Republic of Iran, Malaysia, Pakistan, Saudi Arabia, Senegal and Turkey to the United Nations Addressed to the Secretary-General (31 March 1993), A/47/920-S/25512; Letter from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General (5 April 1993), A/25575. 677

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avail 680. The United States, which was presiding over the United Nations Security Council at the time, stated that “indeed, on the death penalty we might even agree [with Rwanda, but] it was simply not possible to meet those concerns and still maintain broad support in the Council” 681. When the Special Court for Sierra Leone was being established, the Secretary-General’s report said: “For a nation which has attested to atrocities that only few societies have witnessed, it will require a great deal of persuasion to convince it that the exclusion of the death penalty and its replacement by imprisonment is not an ‘acquittal’ of the accused, but an imposition of a more humane punishment” 682. Only a few years previously, Sierra Leone had conducted a mass execution of political opponents of the regime 683. But in 2004, the Sierra Leone Truth and Reconciliation recommended the abolition of the death penalty 684. There have now been no executions in Sierra Leone for more than two decades. After the tribunals for the former Yugoslavia and Rwanda had been in operation for several years, with enough indicted persons to keep them busy for decades to come, the Security Council began pressuring the institutions to develop a “completion strategy” 685. The tribunals adopted procedures by which some low- and middle-level accused persons would be referred to

 S/PV.3453, p. 16. See “Report on the Mission to Rwanda on the Issues of Violence Against Women in Situations of Armed Conflict”, E/CN.4/1998/54/Add.1, para. 40. 681  S/PV.3453, p. 17. 682  Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, para. 6. 683   Mansaraj et al. v. Sierra Leone (Nos. 839-841/1998), Views, 16 July 2001, CCPR/C/72/D/839/1998, para. 2.1. 684  Sierra Leone Truth and Reconciliation Commission, Witness to Truth, Final Report of the Truth and Reconciliation Commission, Vol. II, Freetown, 2004, p. 126. 685  S/RES/1329 (2000), Preamble. 680

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national jurisdictions for trial 686. The Rules of Procedure and Evidence were amended to permit this. Among the criteria was a requirement that there be no possibility of capital punishment being imposed or carried out at the national level 687. Capital punishment had by then been abolished in the States that emerged from the former Yugoslavia. Rwanda, on the other hand, which had conducted a mass execution of génocidaires in 1998, amended its domestic legislation and became an abolitionist State 688. Exclusion of the death penalty from the statutes of the ad hoc tribunals was a manifestation of the evolution in international human rights law. The death penalty was recognised in the major human rights treaties as an exception to the protection of the right to life 689. By the 1990s, optional protocols had been adopted to these  Tenth Annual Report of the International Criminal Tribunal for the former Yugoslavia, A/58/297-S/2003/829, Annex, para. 4; Eighth Annual Report of the International Criminal Tribunal for Rwanda, A/58/140-S/2003/707, Annex, para. 2. 687  Rules of Procedure and Evidence, IT/32/Rev. 32, Rule 11 bis (B); Rules of Procedure and Evidence [of the International Criminal Tribunal for Rwanda], Rule 11 bis (C). 688  Organic Law Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, Official Gazette of the Republic of Rwanda, Year 46, special issue of 19 March 2007, Article 28; Organic Law No. 31/2007 of 25/07/2007 Relating to the Abolition of the Death Penalty, Official Gazette of the Republic of Rwanda, Year 46, special issue of 25 July 2007. See Sigall Horovitz, “International Courts in Action: The ICTR’s Effect on Death Penalty and Reconciliation in Rwanda”, (2005) 48 George Washington University Law Review 505. 689   International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, Article 6(2); European Convention on Human Rights, (1953) 213 UNTS 221, Article 2 (1); American Convention on Human Rights, (1978) 1144 UNTS 123, Article 4 (2); Arab Charter on Human Rights, Article 6. 686

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instruments with a view to abolition 690. The Convention on the Rights of the Child, adopted by the General Assembly in 1989, prohibited capital punishment altogether for young offenders 691. International humanitarian law also made a significant although more limited contribution to progressive development on this issue. The 1929 Geneva Convention on prisoners of war was actually the first multilateral treaty to impose limits on the use of the death penalty 692. Some States exploited the negotiation of the Rome Statute in an attempt to slow the momentum towards the universal abolition of capital punishment. When they threatened to block consensus on the entire Statute unless their concerns were addressed, an odd paragraph was inserted, Article 80, stating that the penalty provisions in the Statute are without prejudice to penalties under  Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, (1991) 1642 UNTS 414; Protocol 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, CETS 114; Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, CETS 187; Protocol to the American Convention on Human Rights to Abolish the Death Penalty, OASTS 73. 691  Convention on the Rights of the Child, (1990) 1571 UNTS 3, Article 37. 692  Convention Relative to the Treatment of Prisoners of War, (1929) 118 LNTS 343, Article 66. See also Convention (III) Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, Articles 100, 101, 107; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, (1950) 75 UNTS 287, Articles 68, 75; Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Articles 76 (3), 77 (5); Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, Article 6 (4). 690

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national law. The compromise also required the president of the Conference to read a statement at the final plenary recognising “that there is no international consensus on the inclusion or non-inclusion of the death penalty” and “that not including the death penalty in the Statute would not in any way have a legal bearing on national legislations and practices with regard to the death penalty. Nor shall it be considered as influencing, in the development of customary international law or in any other way, the legality of penalties imposed by national systems for serious crimes” 693. Despite Article 80, there are many examples of the exclusion of the death penalty from the Rome Statute being presented as evidence of the evolving abolitionist trend. For example, Judge Garlicki of the European Court of Human Rights wrote that “it is notable that, as the Statute of the recently established International Criminal Court shows, the international community is of the opinion that even the most dreadful crimes can be dealt with without 693

  A/CONF.183/SR.9, para. 53. For an account of these negotiations, see Rolf Einar Fife, “Article 80”, in Otto Triffterer and Kai Ambos (eds.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 4th ed., Munich: C. H. Beck / Baden-Baden: Nomos / Oxford: Hart, 2021, pp. 2305-2310; William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed., Cambridge: Cambridge University Press, 2002, pp. 235–58; William A. Schabas, “Life, Death and the Crime of Crimes: Supreme Penalties and the ICC Statute”, (2000) 2 Punishment & Society 263; William A. Schabas, “The Penalties Provisions in the ICC Statute”, in Dinah Shelton (ed.), International Crimes, Peace, and Human Rights: The Role of the International Criminal Court, Ardsley, NY: Transnational Publishers, 2000, pp. 105-136; William A. Schabas, “Penalties”, in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford University Press, pp. 1497-1534. William A. Schabas - 978-90-04-52150-6

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resorting to capital punishment” 694. In its resolutions on capital punishment, the United Nations Commission on Human Rights “[w]elcom[ed] the exclusion of capital punishment from the penalties that the International Criminal Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda and the International Criminal Court are authorised to impose” 695. The 2013 revised European Union “Guidelines on Death Penalty”, governing policy with respect to third States, note that “[t]he Rome Statute of the International Criminal Court as well as the statutes of the other ad hoc international and hybrid criminal tribunals, all of which the EU supported, contain no provision imposing the death penalty, notwithstanding the fact that they were set up to deal with mass violations of humanitarian law including genocide” 696. In a ruling on extradition and capital punishment, the Supreme Court of Canada signalled the exclusion of capital punishment by the Security Council from the statutes of the ad hoc tribunals, adding that “[t] his exclusion was affirmed in the Rome Statute of the International Criminal Court, signed on December 18, 1998 and ratified on 7 July 2000 by Canada” 697. The International Criminal Court can impose custodial penalties as well as fines and forfeiture. Article 77 of the Statute says that a penalty of imprisonment for a term must not exceed thirty years. Life imprisonment may be imposed “when justified by the extreme gravity of the crime and the individual circumstances of the convicted   Öcalan v. Turkey [GC], No. 46221/99, ECHR 2005-IV, Partly Concurring, Partly Dissenting Opinion of Judge Garlicki, para. 6. 695  The Question of the Death Penalty, E/CN.4/RES/2001/68; The Question of the Death Penalty, E/CN.4/RES/2005/59. 696  EU Guidelines on Death Penalty, Council of the European Union, 8416/13, COHOM 64, PESC 403, OC 213, para. I.vii (internal reference omitted). 697   United States of America v. Burns et al., [2001] 1 SCR 283, para. 88. 694

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person”. Persons sentenced to a term of imprisonment are eligible for parole after serving two-thirds of the sentence 698. Consequently, the maximum penalty prior to review for parole or conditional release is twenty years, in the case of a term of imprisonment, and twenty-five years, where life imprisonment is imposed. Sentences imposed by the Court have ranged from nine years 699 to twelve 700, fourteen 701, eighteen 702 and thirty years 703. In this respect, the Rome Statute regime is perceptibly more clement than the schemes applicable at the ad hoc tribunals, at least as they have been interpreted by the judges. For example, chambers of the International Criminal Tribunal for the former Yugoslavia have imposed sentences as high as forty years 704. The maximum at the International Criminal Tribunal for Rwanda has also exceeded thirty years 705. The Special Court for Sierra Leone, where life imprisonment is not an alternative, pronounced sentences of up to fifty-two years 706. The Grand Chamber of the European Court of Human Rights has pointed to the Rome Statute provisions as evidence of a commitment in international law to the rehabilitation of prisoners sentenced to life terms and to the prospect of   Ibid.   Prosecutor v. Al Mahdi (ICC-01/12-01/15), Judgment and Sentence, 27 September 2016, para. 109. 700   Prosecutor v. Katanga (ICC-01/04-01/07), Décision relative à la peine, 25 May 2014. 701   Prosecutor v. Lubanga (ICC-01/04-01/06), Decision on Sentence Pursuant to Article 76 of the Statute, 13 July 2012. 702   Prosecutor v. Bemba (ICC-01/05-01/08), Decision on Sentence Pursuant to Article 76 of the Statute, 21 June 2016. 703   Prosecutor v. Ntaganda (ICC-01/04-02/06), Sentencing Judgment, 7 November 2019. 704   Prosecutor v. Jelisić (IT-95-10-A), Judgment, 5 July 2001. 705   Prosecutor v. Nahimana et al. (ICTR-99-52-A), Judgment, 28 November 2007. 706   Prosecutor v. Sesay et al. (SCSL-04-15T), Sentencing Judgment, 9 April 2009. 698 699

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their eventual release 707. But judges of the International Criminal Court have not been particularly generous in according parole or early release 708. 5.6.  Procedural obligation The revival of international criminal law at the end of the 1980s and during the 1990s is closely associated with the development of the “procedural obligation” by the human rights courts and treaty bodies. This “procedural obligation” has been viewed as a component of the protection of certain fundamental rights, particularly the right to life and the prohibition of torture and ill treatment. In human rights law, it presents itself as a right of victims to an effective investigation of serious violations. According to the European Court of Human Rights, the “general legal prohibition of arbitrary killing by agents of the State . . . requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State” 709. But there are other rationales, including a “right to truth”, which has both individual and collective dimensions. In enforced disappearance cases, a failure to investigate may engender emotional stress and mental suffering for family members who have a right to know

  Vinter and Others v. The United Kingdom [GC], Nos. 66069/09, 130/10 and 3896/10, para. 118, ECHR 2013-III (extracts). Also, Kafkaris v. Cyprus [GC], No. 21906/04, ECHR 2008-I, Joint Partly Dissenting Opinion of Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens, para. 4. 708   Prosecutor v. Lubanga (ICC-01/04-01/06), Decision on the Review Concerning Reduction of Sentence of Mr Thomas Lubanga Dyilo, 22 September 2015. 709   Al-Skeini et al. v. United Kingdom [GC], No. 55721/07, para. 163 ECHR 2011-IV. 707

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what has happened to the victim 710. According to judges of the European Court, “[f]or society in general, the desire to ascertain the truth plays a part in strengthening confidence in public institutions and hence the rule of law. For those concerned – the victims’ families and close friends – establishing the true facts and securing an acknowledgment of serious breaches of human rights and humanitarian law constitute forms of redress that are just as important as compensation, and sometimes even more so” 711. Another decision, referring to the killings by soldiers during the conflict in Northern Ireland, insisted upon the importance of a “reasoned decision available to reassure a concerned public that the rule of law had been respected” 712. In Janowiec et al. v. Russia, four dissenting judges of the Grand Chamber said that in addition to the rights of the individual victims, “it is equally clear that the obligation to investigate and prosecute those responsible for grave human rights and serious humanitarian law violations serves fundamental public interests by allowing a nation to learn from its history and by combating impunity” 713. The “procedural obligation” also manifests itself in international criminal law. The preamble to the Rome   Zakharenko et al. v. Belarus (No. 2586/2015), Views, 17 March 2017, CCPR/C/119/D/2586/2015, para. 7.4; Dakhal et al. v. Nepal (No. 2185/2012), Views, 17 March 2017, CCPR/C/119/D/2185/2012, para. 11.8; Sankara et al. v. Burkina Faso (No. 1159/2003), Views, 28 March 2006, CCPR/C/86/D/1159/2003, para. 12.2. 711   El Masri v. “The former Yugoslav Republic of Macedonia” [GC], No. 39630/09, ECHR 2012-VI, Joint Concurring Opinion of Judges Tulkens, Spielmann, Sicilianos and Keller, para. 6. 712   Kelly and Others v. The United Kingdom, No. 30054/96, para. 118, 4 May 2001. 713   Janowiec and Others v. Russia [GC], Nos. 55508/07 and 29520/09, ECHR 2013-V, Joint Partly Dissenting Opinion of Judges Ziemele, De Gaetano, Laffranque and Keller, para. 24. 710

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Statute declares that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” and that “effective prosecution [of the most serious crimes of concern to the international community as a whole] must be ensured by taking measures at the national level and by enhancing international cooperation”. Early in the activities of the International Criminal Court, its Prosecutor encouraged States to refer situations for prosecution pursuant to Article 14 of the Rome Statute rather than conduct the prosecutions themselves. Judges welcomed this practice, described as “self-referral”. The Appeals Chamber said that “there may be merit in the argument that the sovereign decision of a State to relinquish its jurisdiction in favour of the Court may well be seen as complying with the ‘duty to exercise [its] criminal jurisdiction’ as envisaged in the . . . Preamble” 714. Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide does not explicitly impose an obligation to prosecute but requires States parties “to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide”. The Convention Against Torture is somewhat more demanding, requiring that State parties “exercise their jurisdiction” over cases of torture committed on their territory 715. They must also ensure   Prosecutor v. Katanga et al. (ICC-01/04-01/07 OA 8), Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, paras 2, 75-77. Also: Prosecutor v. Gbagbo, Laurent (ICC-02/1101/11), Decision on the “Requête relative à la recevabilité de l’affaire en vertu des articles 19 et 17 du Statut”, 11 June 2013, para. 29. 715  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1987) 1465 UNTS 85, Article 5. 714

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“a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction” 716. The relevant provision on this subject in the draft articles on crimes against humanity adopted by the International Law Commission in 2019 is largely based on those of the Torture Convention 717. Referring to the obligation to prosecute under the Torture Convention, the International Court of Justice said it had “in particular a preventive and deterrent character, since by equipping themselves with the necessary legal tools to prosecute this type of offence, the States parties ensure that their legal systems will operate to that effect and commit themselves to coordinating their efforts to eliminate any risk of impunity. This preventive character is all the more pronounced as the number of States parties increases” 718. This confluence of the two bodies of law, international human rights law and international criminal law, has been acknowledged by the United Nations Human Rights Committee. In General Comment 31, the Human Rights Committee explained that where investigation reveals violation of “certain Covenant rights”, States parties “must ensure that those responsible are brought to justice”. The Committee said this applied “notably in respect of those violations recognised as criminal under either domestic or international law”, referring explicitly to torture and similar cruel, inhuman and degrading treatment (Art. 7 of the Covenant), summary and arbitrary killing (Art. 6) and enforced disappearance (Arts. 6, 7 and 9). The Committee also mentioned crimes against humanity and Article 7 of the Rome Statute of the   Ibid., Article 12.   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, pp. 92-98. 718   Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 422, para. 75. 716 717

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International Criminal Court 719. Similarly, the European Court of Human Rights has referred to the grave breach provisions of the four Geneva Conventions and Additional Protocol I, as well as to Rule 158 of the customary law study of the International Committee of the Red Cross: “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects”. The Grand Chamber said that the obligation to carry out an effective investigation of violations of the right to life “is broader than the corresponding obligation in international humanitarian law”, but that “[o]therwise, there is no conflict between the applicable standards in this regard under Article 2 of the Convention and the relevant provisions of international humanitarian law” 720. The scope of the “procedural obligation” figures in the debate about the permissibility of amnesty under certain circumstances. The only positive law provision on the subject is found in Additional Protocol II to the Geneva Convention, adopted in 1977: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict . . .” 721 The Commentary  General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, para. 18. For examples of cases where this is applied, see Amerasingh et al. v. Sri Lanka (No. 2209/2012), Views, 13 July 2017, CCPR/C/120/ D/2209/2012, para. 6.9; Pestaño v. Philippines (No. 1619/ 2007), Views, 23 March 2010, CCPR/C/98/D/1619/2007, para. 7.2. 720   Georgia v. Russia (II) [GC], No. 38263/08, para. 325, 21 January 2021. 721  Additional Protocol to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, (1979) 1125 UNTS 609, Article 6 (5). 719

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published by the International Committee of the Red Cross a decade after the adoption of the Protocol was uncritical of the text, saying the object of Article 6 (5) was “to encourage gestures of reconciliation which can contribute to re-establishing normal relations in the life of a nation which has been divided” 722. Somewhat later, after the anti-impunity movement had gained momentum, the International Committee of the Red Cross began citing the travaux préparatoires of Article 6 (5) of Additional Protocol II to support an interpretation by which war crimes were excluded from any amnesty. It said amnesties were “incompatible with the rule obliging States to investigate and prosecute persons suspected of having committed war crimes in non-international armed conflicts” 723. However, the suggestion that the drafters of the Protocol might have intended to limit the scope of amnesty with respect to war crimes meets the hurdle that in 1977 most States considered that there was no notion of war crimes in a non-international armed conflict. Why would they have intended to make an exception to a nonexistent rule? Some international criminal tribunals have suggested that a customary legal rule prohibiting amnesty is emerging. For example, the Appeals Chamber of the Special Court for Sierra Leone endorsed the Prosecutor’s submission that there was a “crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law”, although it cautioned that the opinion of the amici curiae  Sylvie-S. Junod, “Article 6”, in Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, Geneva: Martinus Nijhoff, 1987, para. 4618. 723  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, Cambridge: Cambridge University Press, 2005, p. 612.

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“that it has crystallised may not be entirely correct” 724. Similarly, the Extraordinary Chambers of the Courts of Cambodia stated that “an emerging consensus prohibits amnesties in relation to serious international crimes, based on a duty to investigate and prosecute these crimes and to punish their perpetrators” 725. At the International Criminal Court, three judges of a Pre-Trial Chamber wrote that “granting amnesties and pardons for serious acts such as murder constituting crimes against humanity is incompatible with internationally recognised human rights” 726. But in a separate opinion, Judge Perrin de Brichambault noted that there was an “ongoing political debate” on the subject, citing an academic who pointed to the widespread acceptance of South Africa’s amnesty 727. The Appeals Chamber did not endorse the Trial Chamber’s position, which it characterised as obiter dictum. “[I]t suffices to say only that international law is still in the developmental stage on the question of acceptability of amnesties”, said the Appeals Chamber 728.   Prosecutor v. Kallon et al. (SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E)), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 82. 725   Prosecutor v. Ieng Sary (No. 002/19-09-2007/ECCC/TC), Decision on Ieng Sary’s Rule 89 Preliminary Objections (ne bis in idem and amnesty and pardon), 3 November 2011, para. 53. 726   Prosecutor v. Gaddafi (ICC-01/11-01/11), Decision on the “Admissibility Challenge by Dr. Saif Al-Islam Gaddafi Pursuant to Articles 17 (1) (c), 19 and 20 (3) of the Rome Statute”, 5 April 2019, para. 77. 727   Prosecutor v. Gaddafi (ICC-01/11-01/11), Separate Concurring Opinion by Judge Marc Perrin de Brichambault, 5 April 2019, para. 136. 728   Prosecutor v. Gaddafi (ICC-01/11-01/11), Judgment on the Appeal of Mr Saif Al-Islam Gaddafi Against the Decision of Pre-Trial Chamber I Entitled “Decision on the ‘Admissibility Challenge by Dr. Saif Al Islam Gadafi 724

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A similarly equivocal position on amnesties emerges from recent work of the International Law Commission on the draft articles on crimes against humanity. Special Rapporteur Sean Murphy observed that “[c]onflicting views exist as to the permissibility of amnesties under international law” 729. He noted that State practice did not confirm a general condemnation of amnesties, even for international crimes 730. Murphy also pointed to an acknowledgement that customary law had not “crystallised” found in the statements of the Special Court for Sierra Leone and the Extraordinary Chambers of the Courts of Cambodia 731. Consequently, he said, “many publicists have found it difficult to conclude that there is a consensus on whether a complete prohibition on amnesties, even for serious crimes, has attained the status of customary international law” 732. The International Law Commission reached no conclusion on the issue of amnesties and did not include a provision requiring their prohibition in its draft articles 733. The amnesty issue has also been addressed at the European Court of Human Rights. A Chamber wrote that Pursuant to Articles 17 (1) (c), 19 and 20 (3) of the Rome Statute’ ” of 5 April 2019, 9 March 2020, para. 96. 729   Third Report on Crimes Against Humanity, by Sean D. Murphy, Special Rapporteur, A/CN.4/704, para. 286. His views received support from many members of the Commission: A/CN.4/SR.3349, p. 7 (Hassouna), ibid., p. 10 (Park); ibid., p. 13 (Nguyen); A/CN.4/SR.3350, p. 11 (Jalloh); A/CN.4/SR.3351, p. 4 (Kolodkin); ibid., p. 9 (Jalloh); ibid., p. 12 (Šturma); A/CN.4/SR.3352, p. 4 (Wood); A/CN.4/SR.3353, pp. 11-12 (Rajput). Contra A/CN.4/SR.3351, pp. 8-9 (Hmoud); A/CN.4/SR.3352, p. 3 (Ruda Santolaria); A/CN.4/SR.3353, pp. 6-7 (VázquezBermúdez); A/CN.4/SR.3353, pp. 12-13 (Hmoud). 730   Ibid., paras. 288, 290. 731   Ibid., para. 292. 732   Ibid., para. 296. 733   Report of the International Law Commission, SeventyFirst Session (29 April-7 June and 8 July-9 August 2019), A/74/10, pp. 95-96. William A. Schabas - 978-90-04-52150-6

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“[g]ranting amnesty in respect of ‘international crimes’ – which include crimes against humanity, war crimes and genocide – is increasingly considered to be prohibited by international law. This understanding is drawn from customary rules of international humanitarian law, human rights treaties, as well as the decisions of international and regional courts and developing State practice . . .” 734 . But when the decision was reconsidered, the Grand Chamber took a somewhat different position. It spoke of a “growing tendency in international law . . . to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights”, rather than “international crimes”. Without reaching any definite conclusion, the Grand Chamber appeared to acknowledge the legitimacy of a view that amnesties might be possible “where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims” 735. The Inter-American Court of Human Rights developed a doctrine whereby amnesty provisions are prohibited “because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary 736 or arbitrary execution and forced disappearance”  , rather than because they are “international crimes”. But in 2012, the seemingly absolute view of the InterAmerican Court of Human Rights was toned down, with a majority of the Court noting that none of its rulings had considered amnesty laws adopted “in the context of a process aimed at ending, through negotiations, a non  Marguš v. Croatia, No. 4455/10, para. 74, 13 November 2012. 735   Marguš v. Croatia [GC], No. 4455/10, para. 130, ECHR 2014-III. 736   Barrios Altos v. Peru, Judgment (Merits), 14 March 2001, Series C, No. 75, para. 41. 734

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international armed conflict” 737. The judges recognised that limitations on the obligation to investigate and prosecute could not be ruled out when this was part of a broader process of post-conflict peace-building and accountability. 5.7.  Commissions of Inquiry The linkages between international criminal law and international human rights law are very apparent in the work of many of the Commissions of Inquiry and similar bodies established by the Human Rights Council 738. More than thirty such mechanisms, in a variety of configurations, have been established over the past fifteen years. Although not necessarily mandated to investigate alleged international crimes, some of the Commissions have gone beyond the language of violations of human rights and humanitarian law, venturing opinions and analysis in the area of international criminal law. They have also recommended that prosecution before international criminal tribunals be undertaken. Among the most celebrated, and controversial, was the Commission established to inquire into the events of the Gaza conflict in 2009. The mandate of the Commission required it to examine an alleged violation of international human rights law and international humanitarian law 739. “International criminal law has   Massacres of El Mozote and nearby places v. El Salvador, Judgment (Merits, Reparations and Costs), 25 October 2012, Series C, No. 52, Concurring 2 Opinion of Judge Diego Garcia-Sayán, para. 9. 738  Christopher Harwood, “Human Rights in Fancy Dress? The Use of International Criminal Law by Human Rights Council Commission of Inquiry in Pursuit of Accountability”, (2015) 58 Japanese Yearbook of International Law, 71. 739  The Grave Violations of Human Rights in the Occupied Palestinian Territory, Particularly Due to the Recent Israeli Military Attacks Against the Occupied Gaza Strip, A/HRC/ RES/S-9.1 para. 14. 737

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become a necessary instrument for the enforcement of IHL and IHRL”, the Commission wrote in its report. “Criminal proceedings and sanctions have a deterrent function and offer a measure of justice for the victims 740 of violations.”  The Commission encouraged the prosecution for international crimes on the basis of universal jurisdiction, describing it as “a potentially efficient tool for enforcing international humanitarian law and international human rights law, preventing impunity and promoting international accountability” 741. The Commission made several findings that war crimes may have been committed 742. It also said “some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed” 743. It said the firing of rockets and mortars by armed Palestinian groups “constitute war crimes and may amount to crimes against humanity” 744. A subsequent Commission dealing with the Occupied Palestinian Territory was assigned “to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people” 745. The Commission noted the possible application of international criminal law but made no findings and reached no conclusions on the subject 746.  Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, para. 286. 741   Ibid., para. 1857. 742   Ibid., paras. 931, 937, 1105, 1106, 1171-1175, 1409. 743   Ibid., para. 75. Also paras. 1332-1335, 1502. 744   Ibid., paras. 108, 1691. 745  Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the Occupied Syrian Golan, A/HRC/RES/19/17, para. 9. 746   Report of the Independent International Factfinding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem, A/HRC/22/63, para. 17. 740

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The Commission that investigated the 2014 Gaza conflict had explicit references to international crimes in its mandate. The Council resolution establishing the Commission said it was “to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable” 747. The Commission made findings that war crimes had been perpetrated 748, and stressed the role of the International Criminal Court 749. Some other Commissions of Inquiry have also had explicit elements of international criminal law in their mandates. The Syria Commission of Inquiry, established by the Human Rights Council in March 2011, was assigned “to investigate all alleged violations of international human rights law . . . and, where possible, to identify those responsible with a view to ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable” 750. The Commission has issued more than twenty reports over the course of an entire decade, devoting enormous attention to the description and characterisation of international crimes. The first report of the Commission contained a substantial section entitled “International Criminal Law” that relied upon the definition in Article 7 of the Rome Statute, concluding that various acts were widespread and systematic and that they were conducted pursuant to  Ensuring Respect for International Law in the Occupied Palestinian Territory, including East Jerusalem, A/HRC/ RES/S-21/1, para. 13. 748   Report of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/52, paras. 38, 40, 50, 52 53, 60, 68, 71, 74, 78, 79. 749   Ibid., paras. 83, 86 (e), 89 (d). 750  Situation of Human Rights in the Syrian Arab Republic, A/HRC/RES/S-17/1, para. 13. 747

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a State policy 751. In subsequent reports the Commission also examined crimes against humanity perpetrated by non-State armed groups such as the Free Syrian Army 752. The Commission has prepared confidential lists of individuals suspected of responsibility for crimes against humanity 753. With reference to a ruling of the InterAmerican Court of Human Rights, the Commission has said the prohibition of crimes against humanity is a jus cogens or peremptory rule, and that consequently “the punishment of such crimes is obligatory pursuant to the general principles of international law” 754. It has urged the Security Council to refer the situation in Syria to the International Criminal Court 755. The Syria Committee has also considered other international crimes. It has noted that acts of torture that are not widespread or systematic cannot be considered crimes against humanity but can be prosecuted as war   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/S-17/2/Add.1, paras. 101-108. 752   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/19/69, paras. 105-120. 753   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/22/59, para. 164. 754   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/S-17/2/ Add.1, para. 110, citing Almonacid-Arellano et al. v. Chile, Judgment (Preliminary Objections, Merits, Reparations and Costs), 26 September 2006, Series C, No. 154, para. 99. 755   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/25/65, para. 163 (b); Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/30/48, para. 184 (c); Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/31/68, para. 161 (d). 751

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crimes 756. In one report, it said that “despoiling bodies of the deceased” is a war crime, although without citing any authority 757. It has also spoken in some detail about the war crimes of “sentencing or execution without due process” 758 and of attacking historic and religious objects 759. It has addressed the conduct of hostilities including the use of prohibited weapons 760 and “laying siege”, sometimes describing these as violations of obligations under international humanitarian law rather than war crimes 761. In a policy paper published in 2018, the Commission said that although “the use of sieges in Syria has violated international criminal law”,   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/22/59, para. 103. 757   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/23/58, para. 57. In another report, the Commission said that such acts constituted the war crime of outrages upon personal dignity: Rule of Terror: Living under ISIS in Syria, A/HRC/27/CRP.3, para. 50. 758   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/22/59, paras. 53-55; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/23/58, paras. 58-63; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/33/55, para. 171-172; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/43/57, para. 38. 759   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/23/58, paras. 115-121; Rule of Terror: Living under ISIS in Syria, A/HRC/27/CRP.3, para. 31. 760   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/36/55, paras. 67-77. 761   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/24/46, paras. 111-190; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/25/65, paras. 85-150. 756

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the International Criminal Court “has no jurisdiction over most parties to the conflict” 762. The real issue, of course, was not jurisdiction ratione personae but rather jurisdiction ratione materiae. The Commission has referred to the war crime of “collective punishment” 763, which is not included in the Rome Statute. Judgments of the Special Court for Sierra Leone, on which the Commission relied, are premised on what Shane Darcy has called “strained judicial reasoning” 764. Referring to the customary law study of the International Committee of the Red Cross, in 2014 the Commission said that starvation was a war crime 765. It appears to have misread the study, because although the Committee pointed to starvation of civilians as a war crime when perpetrated in international armed conflict 766, it was more equivocal in its discussion of starvation of civilians when perpetrated in non-international armed conflict 767. This is consistent with the Rome Statute of the International Criminal Court whereby starvation of civilians is a war crime in international armed conflict but not in non-international armed conflict. Only in December 2019 was an amendment to the Statute adopted to make starvation of civilians in non-international armed  Sieges as a Weapon Of War, Encircle, Starve, Surrender, Evacuate, 29 May 2018, para. 7. 763   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/43/57, para. 80. 764  Shane Darcy, “Prosecuting the War Crime of Collective Punishment Is It Time to Amend the Rome Statute?”, (2010) 8 Journal of International Criminal Justice 29. 765   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/37/72, para. 70. 766  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, Cambridge: Cambridge University Press, 2005, pp. 580-581. 767   Ibid., p. 603. 762

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conflict a war crime 768. When this course was delivered, in January 2021, the amendment had been ratified by three States parties: Andorra, the Netherlands and New Zealand. In 2016 the Syria Commission alleged that genocide was being committed against the Yazidi minority by ISIS. Its report pointed to such underlying acts as forcible transfer, forced religious conversion, unlawful detention and sexual enslavement. The analysis did not adequately take into account the hesitation manifested in recent case law of both the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia whereby it must be established that the intent of the perpetrators was physical destruction or extermination of the protected group. The Commission said that genocide against the Yazidi was ongoing 769. It made perfunctory reference to its 2016 report on genocide 770 but has otherwise never returned to the subject or to any subsequent developments in a crime that it had initially said was continuing. Its silence can only cast doubt on the seriousness of the original claim. The Syria Commission has also discussed the issue of superior or command responsibility, which is an important feature of international criminal law, codified in Article 28 of the Rome Statute. In one of its reports it said that “military commanders and civilian superiors may reasonably be suspected of responsibility for crimes against humanity because of their knowing failure to take all necessary and reasonable measures within their power  Resolution on Amendments to Article 8 of the Rome Statute of the International Criminal Court, ICC-ASP/18/Res.5. 769  “They Came to Destroy”: ISIS Crimes Against the Yazidis, A/HRC/32/CRP.2. 770  “I Lost My Dignity”: Sexual and Gender-Based Violence in the Syrian Arab Republic A/HRC/37/72/CRP.3, para. 113; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/37/72, para. 37. 768

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to prevent or repress the commission of relevant crimes by their subordinates or to submit the matter to the competent authorities” 771. This is not an entirely accurate depiction of command responsibility. The essence of command responsibility is its imposition of liability on a commander for whom there is insufficient evidence of knowledge; it is not about “knowing failure” but rather about failure to intervene when the commander “should have known” about the conduct of subordinates 772. In another report the Commission presented a different but also inaccurate definition of the concept that made no mention whatever of the mental element 773. Like the Syria Commission, the Commission of Inquiry established in 2013 for the Democratic People’s Republic of Korea was specifically assigned to investigate crimes against humanity 774. Several paragraphs in its final report dealt with the subject, assessing the issue “on the basis of definitions set out by customary international criminal law and in the Rome Statute of the International Criminal Court” 775. The Commission concluded that it had reasonable grounds to believe a range of crimes against humanity had been perpetrated, including the inhumane act of knowingly causing prolonged starvation. It said that crimes against humanity were ongoing “because the policies, institutions and patterns of impunity that lie at   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/19/69, para. 100. 772  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 28 (a) (i). 773   Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/21/50, para. 137. 774   Situation of Human Rights in the Democratic People’s Republic of Korea, A/HRC/RES/22/13, para. 5. 775  Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, A/HRC/25/63, para. 21. 771

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their heart remain in place” 776. The mandate of another fact-finding mission, for Venezuela, employed some of the nomenclature of the punishable acts but without using the term crimes against humanity itself 777. Nevertheless, its first report pointed to several acts of crimes against humanity although it did not attempt any legal analysis of the concept 778. No reference is made to international crimes in the resolution creating the South Sudan Commission, which was “[t]o monitor and report on the situation of human rights in South Sudan and make recommendations for 779 its improvement”  and on “alleged violations and abuses of human rights” 780. References in the mandate to impunity and accountability resulted in an important international criminal law dimension of the reports, which have spoken of “lack of accountability for gross human rights violations and abuses, serious violations of international humanitarian law, and related international crimes” 781. One of the members of the Commission, Andrew Clapham, has stressed the potential for the exercise of universal jurisdiction as well as a role for the International Criminal Court 782. Allegations of genocide were also made by the FactFinding Mission on Myanmar, established by the Human   Ibid., para. 76.  Situation of Human Rights in the Bolivarian Republic of Venezuela, A/HRC/RES/42/25, para. 24. 778   Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, A/HRC/45/33, paras. 161-162. 779  Situation of Human Rights in South Sudan, A/RES/31/20, para. 18. 780   Situation of Human Rights in South Sudan, A/HRC/ RES/34/25, para. 15; Situation of Human Rights in South Sudan, A/HRC/RES/40/19, para. 15. 781   Transitional Justice and Accountability: A Roadmap for Sustainable Peace in South Sudan, A/HRC/45/CRP.4, para. 51. 782  A/HRC/45/CRP.4, paras. 64-66. 776 777

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Rights Council in 2017. There was no explicit reference to international crimes in its mandate, but the Mission was charged with investigating “alleged recent human rights violations by military and security forces, and abuses . . . with a view to ensuring full accountability for perpetrators” 783. The following year the Mission issued a report that concluded both crimes against humanity and war crimes had been perpetrated, principally by the military forces of the country but also by some armed groups 784. After discussing inferences of genocidal intent, the Commission said that “there is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command, so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State” 785. A detailed version of the report developed the charge of genocide, pointing to historic patterns of discrimination, the prevalence of hate propaganda on social media, and birth control policies, as well as violence associated with “clearance operations” in August and September 2017 that provoked huge refugee flows to neighbouring Bangladesh 786. The findings and legal conclusions of the Fact-Finding Mission were largely relied upon by The Gambia in the application it filed against Myanmar in November 2019 alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide 787. In the provisional measures order issued in  Situation of Human Rights in Myanmar, A/HRC/RES/34/22, para. 11. 784   Report of the Independent International Fact-Finding Mission on Myanmar, A/HRC/39/64, paras. 89-90. 785   Ibid., paras. 84-88. 786  Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/39/ CRP.2, paras. 1388-1441. 787   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. 783

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January 2020, the Court referred to the work of the FactFinding Mission 788. The Human Rights Council responded to the FactFinding Mission’s conclusions with the establishment of a complementary “mechanism” assigned “to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011, and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law” 789. The Human Rights Council has established what amounts to an international criminal justice institution confirming the intimacy of the relationship between human rights law and international criminal law.

Myanmar), Application Instituting Proceedings and Request for Provisional Measures, 11 November 2019. 788   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order, 23 January 2020, paras. 27, 55. 789  Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar, A/HRC/RES/39/2, para. 22. William A. Schabas - 978-90-04-52150-6

CHAPTER 6

CONCLUSIONS This course has explored the relationships that exist between international criminal law and three closely associated branches of public international law concerned with human rights, the law of armed conflict and the protection of refugees, as well as general international law. Perhaps general international law is distinct from the other three categories in that it furnishes a source of so-called secondary rules that are common to all of the branches. Moreover, the very purpose of such secondary rules is to complement and complete the primary rules set by individual branches of public international law. There is less, if any, space for conflict. But when the branches interact, difficulties arise. A recent example is provided by the General Comment on the right to life adopted by the United Nations Human Rights Committee in November 2018. The final paragraph in the General Comment affirms: “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto Article 6 of the Covenant” 790. This is a somewhat different message from that of the law of armed conflict which at the very least tolerates the taking of human life by aggressors to the extent that they observe certain rules governing the conduct of hostilities with respect to targeting, choice of weapons and proportionality. Martti Koskenniemi has spoken of the “more relaxed standard of killing” adopted by humanitarian law as opposed to human rights 790

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law 791. In its advisory opinion on Nuclear Weapons, the International Court of Justice opted to prioritise international humanitarian law over human rights law, describing it as the lex specialis 792. Koskenniemi explained that it would have been “too idealistic” for the Court to allow full scope to human rights law because of the speciality and persistence of armed conflict. He said it “created a systemic view of the law in which the two sets of rules related to each other as today’s reality and tomorrow’s promise, with a view to the overriding need to ensure ‘the survival of a State’ ” 793. Subsequent rulings of the Court have taken a step back from the view that human rights law is displaced by humanitarian law, emphasising the complementary components rather than any divergence of the two branches of international law 794. International criminal law seems to straddle the divide between international humanitarian law and international human rights law. It most certainly deals with the criminal prosecution of acts of aggression that may result in the destruction of human life. Yet there, its scope is   Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi, A/CN.4/L.682, para. 96. 792   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, para. 26. 793   Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi, A/CN.4/L.682, para. 104. 794   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, para. 106; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168, paras. 215-216. 791

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confined to military and civilian leaders at the highest level under provisions of the Rome Statute that reserve such prosecution to a narrow cohort of individuals 795. This limitation is itself inconsistent with the more general rule by which lower-ranking individuals may not invoke a defence of superior orders unless the act was not manifestly unlawful 796. It might be contended that the Rome Statute’s restriction on prosecution for aggression is jurisdictional in nature, and that criminal justice for subordinates who participate in acts of aggression are left to be dealt with at the national level, like the rule excluding jurisdiction of the Court over juvenile offenders 797. However, this is not a very convincing interpretation. The message of the Rome Statute is that killing by those who participate in acts of aggression but who are not in positions of leadership is lawful and innocent. But that, surely, is not consistent with the General Comment of the Human Rights Committee. Moreover, the General Comment requires the effective investigation and prosecution of violations of the right to life 798. The counterpart to this obligation is the right to justice for the victims and their next of kin. Addressing this conundrum engages three branches of international law, all of them with somewhat different answers. That of international humanitarian law is actually the least “humanitarian”, although its neutrality with respect to the jus ad bellum is said to be crucial to its effectiveness. That of international criminal law has an element of irrationality, reserving criminal liability for those in leadership positions while absolving the great majority of combatants who violate the right of life  Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Article 8 bis (1) and 25 (3) bis. 796   Ibid., Article 33. 797   Ibid., Article 26. 798  General Comment 36, Article 6: Right to Life, CCPR/C/ GC/36, paras. 27-28. 795

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of those on the receiving end of aggressive war. From the standpoint of protecting the jus cogens norm of the right to life, human rights law takes the best position. In Croatia v. Serbia, the International Court of Justice noted that “as a general rule, a particular act may be perfectly lawful under one body of legal rules and unlawful under another”. Consequently, it said, “it cannot be excluded in principle that an act carried out during an armed conflict and lawful under international humanitarian law can at the same time constitute a violation by the State in question of some other international obligation incumbent upon it” 799. For more than a quarter of a century, public international law has been vexed by the relationships between different branches of the discipline. This is perhaps no more than a natural consequence of the growth of the system as a whole, and the emergence of an everexpanding universe of courts, tribunals and other bodies, many of them with highly specialised mandates in terms both of subject-matter and regional application. In the identification and resolution of conflicts between the different branches, there is a relative absence of hierarchical rules. One notable exception is Article 103 of the Charter of the United Nations: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The other is the superior position of peremptory norms (jus cogens), initially developed as a form of public order invalidation of incompatible treaties but taking on more robust proportions over the years. The tribunals and other institutions that apply and interpret international law are often not placed within a 799

  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3, para. 474. William A. Schabas - 978-90-04-52150-6

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hierarchic relationship whereby possible conflicts may be resolved with the higher-ranking body prevailing. There are, to be sure, internal hierarchies, for example in the relationship between the Appeals Chamber and the Trial and Pre-Trial Chambers of the International Criminal Court, that of the Grand Chamber and the other judicial formations of the European Court of Human Rights and between the human rights commissions and courts of the African and inter-American human rights systems. The great concerns about the “fragmentation” of international law that preoccupied the discipline at the turn of the century were largely about this hierarchical dimension 800. It seems the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had kicked this hornet’s nest when it disputed a finding of the International Court of Justice about State responsibility for the acts of non-State military units 801. That is a quite separate issue from the difficulties that may arise because of apparent conflicts of norms between different branches of international law. In any event, the forlorn aspiration of an international legal order where the International Court of Justice irons out the creases in jurisprudence of the “lower courts” could only partially resolve conflicts that arise when different branches of public international law interact.   Georges Abi-Saab, “Fragmentation or Unification: Some Concluding Remarks”, (1999) 3 New York University Journal of International Law and Politics 919; Martti Koskenniemi and Päivi Leino, “Fragmentation of International Law? Postmodern Anxieties”, (2002) 15 Leiden Journal of International Law 553; Pierre Marie Dupuy, “L’unité de l’ordre juridique internationale. Cours général de droit international public”, (2002) 297 Recueil des cours. 801   Prosecutor v. Tadić (IT-94-1-A), Judgment, 15 July 1999, paras. 124-145, disputing the holding of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14, paras. 239-249. 800

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In a 1996 advisory opinion, the International Court of Justice confronted the interaction between international humanitarian law and international human rights law. It proclaimed that in the context of armed conflict, international humanitarian was the lex specialis. Although international human rights law continued to apply, the Court implied that where norms drawn from the law of armed conflict were applicable, they effectively displaced those of the other system 802. The maxim lex specialis derogat legi generali is sometimes thought of as a “general principle of law” as this expression is used in Article 38 (1) of the Statute of the International Court of Justice. But lex specialis is not really a source of law as such, in the sense that other general principles such as the obligation of reparation for injury are. Rather it is a canon of interpretation, one among many, some of them codified in the Vienna Convention, that judges may apply in construing rules and principles 803. Lex specialis is particularly suited to legal systems that are coherent and self-contained because it provides a guide to the intent of the lawmaker where this is not otherwise entirely clear. It is also a much more general notion familiar enough, at least intuitively and without the need for Latin, in ordinary human communication. When a university lecturer says that a class will take two hours, with a tenminute break in the middle, nobody will be troubled by an apparent contradiction in such a pronouncement. A general rule has been stated, followed by an exception. The class actually lasts for only one hour and fifty minutes. The coffee break is lex specialis. Everybody   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, para. 26. 803   See the discussion in Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi, A/CN.4/L.682, paras. 56-97. 802

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will understand, without the need to refer to the case law of the International Court of Justice or studies of the International Law Commission, that the class will finish in two hours and not in two hours and ten minutes. But unlike the facially inconsistent words of the university lecturer, international law is not the creation of a single lawmaker. If those who established the main legal instruments applicable to international human rights had manifested an intent to defer to the law of armed conflict during wartime, recognition of a lex specialis principle might be plausible. But there is no evidence of this. This course has aspired to provide an introductory examination of the relationships between international criminal law and the other branches of public international law with which it is most closely associated. Any one of these relationships merits a more thorough exploration. That there is a relationship can hardly be doubted. Yet like most families, it has its tensions. All of the branches are concerned, in one way or another, with the rights and protection of the individual, with dignity and humanity, with justice and responsibility. Reconciling the differences so as to reduce “fragmentation” may be desirable but the process should not be pushed too far. Absolute harmonisation or assimilation is probably impossible. Nor should the possibility be discounted that one of the branches will, over time, come to achieve some sort of hegemony over the others.

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ABOUT THE AUTHOR

Biographical Note William Anthony Schabas, born 19 November 1950, in Cleveland, Ohio, United States. Canadian and Irish nationality. BA in History (Toronto, 1972); MA in History (Toronto, 1973); LLB (Montreal, 1983); LLM (Montreal, 1990); LLD (Montreal, 1993); Professor of Law, Université du Québec à Montréal (1990-2000); Professor of Human Rights Law and Director of the Irish Centre for Human Rights, National University of Ireland Galway (2000-2011); Professor of International Law, Middlesex University, London (since 2011); Professor of International Criminal Law and Human Rights, Leiden University (2012-2021). Member, Sierra Leone Truth and Reconciliation Commission (2002-2004); Chairman, Board of Trustees, United Nations Voluntary Fund for Technical Cooperation in the Field of Human Rights (2009-2011); Chairman, Independent International Commission of Inquiry to Investigate All Violations of International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014 (2014-2015); President, International Association of Genocide Scholars (2009-2011); Chair and President, Institute for International Criminal Investigation (since 2000); President, Irish Branch, International Law Association (2008-2015). Officer of the Order of Canada (2006); Member of the Royal Irish Academy (2007); Certificate of Merit for a book in a specialised area of international law, American Society of International Law, 2007; Doctor of Laws (LLD) honoris causa, Dalhousie University, Canada (2007); Doctor of Laws (LLD) honoris causa, Case Western Reserve University, Cleveland, United States (2009); Vespasian V. Pella Medal for International Criminal Justice, Association internationale de droit pénal (2010); Book of the Year Award, International Association of Penal Law, American National Section (2010); Doctor of Laws (LLD) honoris causa, Northwestern University, Chicago, United States (2011); Gold Medal in William A. Schabas - 978-90-04-52150-6

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the Social Sciences, Royal Irish Academy (2011); Diamond Jubilee Medal (Canada) (2012); Doctor of Laws (LLD) honoris causa, University of Copenhagen, Denmark (2012).

Principal Publications Books The Abolition of the Death Penalty in International Law, Cambridge: Grotius Publications, 1993. Genocide in International Law, Cambridge: Cambridge University Press, 2000. Introduction to the International Criminal Court, Cambridge: Cambridge University Press, 2001. The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge: Cambridge University Press, 2006. The International Criminal Court: A Commentary on the Rome Statute, Oxford: Oxford University Press, 2010. Unimaginable Atrocities: Justice, Politics and Rights at the War Crimes Tribunals, Oxford: Oxford University Press, 2012. The Universal Declaration of Human Rights: The travaux préparatoires, 3 vols., Cambridge: Cambridge University Press, 2013. The European Convention on Human Rights: A Commentary, Oxford: Oxford University Press, 2015. The Trial of the Kaiser, Oxford: Oxford University Press, 2018. Nowak’s Commentary on the International Covenant on Civil and Political Rights, 3rd ed., Kehl: Engel, 2019. The Customary International Law of Human Rights, Oxford: Oxford University Press, 2021. Articles and book chapters “Substantive and Procedural Issues in the Ratification by Canada of the American Convention on Human Rights”, (1991) 12 Human Rights Law Journal 405-413. “The Omission of the Right to Property in the International Covenants”, (1991) 4 Hague Yearbook of International Law 135-160. “Extradition et la peine de mort: le Canada renvoie deux fugitifs au couloir de la mort”, (1992) 4 Revue universelle des droits de l’homme 65-70. “International Norms on Execution of the Insane and of the Mentally Retarded”, (1993) 4 Criminal Law Forum 95-117. William A. Schabas - 978-90-04-52150-6

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“Kindler v. Canada”, (1993) 87 American Journal of International Law 128-133. “Les réserves des États-Unis d’Amérique aux articles 6 et 7 du Pacte international relatif aux droits civils et politiques”, (1994) 6 Revue universelle des droits de l’homme 137150. “Soering’s Legacy: The Human Rights Committee and the Judicial Committee of the Privy Council Take a Walk Down Death Row”, (1994) 43 International and Comparative Law Quarterly 913-924. “Is the United States Still a Party to the International Covenant on Civil and Political Rights?”, (1995) 21 Brooklyn Journal of International Law 277-325. “Reservations to International Human Rights Treaties”, (1995) 32 Canadian Yearbook of International Law 39-81. “Reservations to the Convention on the Rights of the Child”, (1995) 18 Human Rights Quarterly 472-491. “South Africa’s Constitutional Court Outlaws the Death Penalty”, (1995) 16 Human Rights Law Journal 133-148. “Justice, Democracy and Impunity in Post-Genocide Rwanda: Searching for Solutions to Impossible Problems”, (1996) 7 Criminal Law Forum 523-560. “Sentencing and the International Tribunals: For a Human Rights Approach”, (1997) 7 Duke Journal of Comparative and International Law 461-517. “Canada and the Adoption of the Universal Declaration of Human Rights”, (1998) 43 McGill Law Journal 403-442. “International Sentencing: From Leipzig (1923) to Arusha (1996)”, in M. Cherif Bassiouni (ed.), International Criminal Law, 2nd rev. ed., New York: Transnational Publishers, 1999, pp. 171-193. “Mugesera v. Minister of Citizenship and Immigration”, (1999) 93 American Journal of International Law 529533. “The Follow-Up to Rome, Preparing for Entry into Force of the International Criminal Court Statute”, (1999) 20 Human Rights Law Journal 157-166. “Barayagwiza v. Prosecutor”, (2000) 94 American Journal of International Law 638-645. “Hate Speech in Rwanda: The Road to Genocide”, (2000) 46 McGill Law Journal 141-171. “Islam and the Death Penalty”, (2000) 9 William & Mary Bill of Rights Journal 223-236. “Life, Death and the Crime of Crimes: Supreme Penalties and the ICC Statute”, (2000) 2 Punishment & Society 263-286. William A. Schabas - 978-90-04-52150-6

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“Perverse Effects of the nulla poena Principle: National Practice and the Ad Hoc Tribunals”, (2000) 11 European Journal of International Law 521-539. “Twenty-Five Years of Public International Law at the Supreme Court of Canada”, (2000) 79 Canadian Bar Review 174-195. “Case Comment: United States v. Burns”, (2001) 95 American Journal of International Law 666-671. “Enforcing International Humanitarian Law: Catching the Accomplices”, (2001) 82 International Review of the Red Cross 439-459. “Problems of International Codification: Were the Atrocities in Cambodia and Kosovo Genocide?”, (2001) 35 New England Law Review 287-302. “The Jelisic Case and the Mens Rea of the Crime of Genocide”, (2001) 14 Leiden Journal of International Law 125140. “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the former Yugoslavia”, (2001) 25 Fordham International Law Journal 23-53. “National Security Interests and the Rights of the Accused”, in H. Roggemann and P. Sarcevic (eds.), National Security and International Criminal Justice, The Hague: Kluwer Law International, 2002, pp. 105-113. “Penalties”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford University Press, 2002, pp. 1497-1534. “The ICJ Ruling Against the United States: Is It Really About the Death Penalty?”, (2002) 27 Yale Journal of International Law 445-452. “Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice”, (2003) 25 Loyola Los Angeles International & Comparative Law Review 581-604. “National Courts Finally Begin to Prosecute Genocide, the ‘Crime of Crimes’ ”, (2003) 1 Journal of International Criminal Justice 39-63. “Punishment of Non-State Actors in Non-International Armed Conflict”, (2003) 26 Fordham International Law Journal 907-933. “The Relationship Between Truth Commissions and International Courts: The Case of Sierra Leone”, (2003) 25 Human Rights Quarterly 1035-1066. “A Synergistic Relationship: The Sierra Leone Truth and William A. Schabas - 978-90-04-52150-6

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Reconciliation Commission and the Special Court for Sierra Leone”, (2004) 15 Criminal Law Forum 3-54. “Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone”, (2004) 11 University of California, Davis Journal of International Law and Policy 145-169. “Conjoined Twins of Transitional Justice? The Sierra Leone Truth and Reconciliation Commission and the Special Court”, (2004) 2 Journal of International Criminal Justice 1082-1099. “United States Hostility to the International Criminal Court: It’s All About the Security Council”, (2004) 15 European Journal of International Law 701-720. “Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide”, (2005) 18 Leiden Journal of International Law 871-885. “Genocide, Crimes Against Humanity and Darfur: The Commission of Inquiry’s Findings on Genocide”, (2005) 27 Cardoza Law Review 101-119. “Article 37, Prohibition of Torture, Prohibition of Death Penalty and Life Imprisonment and the Deprivation of Liberty”, in André Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva Berghmans and Mieke Verheyde (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Leiden and Boston: Martinus Nijhoff, 2006, xii (with Helmut Sax). “First Prosecutions at the International Criminal Court”, (2006) 25 Human Rights Law Journal 25-40. “Movement Toward World Wide Abolition of the Death Penalty”, in Chen Zexian (ed.), Strengthening the Defence in Death Penalty Cases, Beijing: Chinese Academy of Social Sciences, 2006, pp. 135-159 (in Chinese). “The ‘Odious Scourge’: Evolving Interpretations of the Crime of Genocide”, (2006) 1 Genocide Studies and Prevention 93-106. “Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes, (2007) 2.2 Genocide Studies and Prevention 101-122. “Ireland, the European Convention on Human Rights and the Personal Contribution of Seán Mac Bride”, in John Morison, Kieran McEvoy and Gordon Anthony (eds.), Judges, Transition, and Human Rights, Oxford: Oxford University Press, 2007, pp. 251-274. “Le Tribunal spécial pour le Liban: Fait-il partie de la catégorie de ‘certaines juridictions pénales internationales’?, (2007) William A. Schabas - 978-90-04-52150-6

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Revue québécoise de droit international (special issue) 119132. “Lex specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad bellum”, (2007) 40 Israel Law Review 592-613. “Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom Under the European Convention on Human Rights”, (2007) 2 Irish Yearbook of International Law 3-30 (with Aisling O’Sullivan). “Study of the Right to Enjoy the Benefits of Scientific and Technological Progress and its Applications”, in Yvonne Donders and Vladimir Volodin (eds.), Human Rights in Education, Science and Culture: Legal Developments and Challenges, Aldershot: Ashgate Publishing / UNESCO, 2007, pp. 273-308. “Complementarity in Practice: Some Uncomplimentary Thoughts”, (2008) 19 Criminal Law Forum 5-33. “ ‘Die verabscheuungswürdige Geissel’: Völkermord, 60 Jahre Danach”, in Gerd Hankel (ed.), Die Macht und das Recht, Beiträge zum Völkerrecht und Völkerstrafrecht am Beginn des 21. Jahrhunderts, Hamburg: Hamburger Edition, 2008, pp. 189-228. “ ‘Schöne Neue Welt’: Zur Rolle des Anklägers des Internationalen Strafgerichtshofs”, (2008) 83.4 Die FriedensWarte 11-31. “Should Active Recruitment of Health Workers from SubSaharan Africa Be Viewed as a Crime?”, (2008) 371 The Lancet 687-690 (with Edward J. Mills, Jimmy Volmink, Roderick Walker, Nathan Ford, Elly Katabira, Aranka Anema, Michel Joffres, Pedro Cahn and Julio Montaner). “State Policy as an Element of International Crimes”, (2008) 98 Journal of Criminal Law & Criminology 953-982. “Louise Arbour”, in David P. Forsythe (ed.), Encyclopedia of Human Rights, Vol. 1, Oxford: Oxford University Press, 2009, pp. 88–91. “Prosecutorial Discretion and Gravity”, in Carsten Stahn and Göran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Leiden: Brill, 2009, pp. 229246. “The International Criminal Tribunals”, in Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan and Alfred de Zayas (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller, Leiden: Brill, 2009, pp. 275-284. William A. Schabas - 978-90-04-52150-6

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“Genocide in International Law and International Relations Prior to 1948”, in C. Safferling and E. Conze (eds.), The Genocide Convention Sixty Years After its Adoption, The Hague: TMC Asser, 2010, pp. 19-34. “Gravity and the International Criminal Court”, in Chile EboeOsuji (ed.), Protecting Humanity: Essays in International Law and Policy in Honour of Navanethem Pillay, Leiden and Boston: Brill, 2010, pp. 689-706. “Il rapido progresso verso l’abolizione della pena di morte in Africa”, in Pietro Costa (ed.), Il diritto di uccidere, L’enigma della pena di morte, Milan: Feltrinelli, 2010, p. 247-262. “International Criminal Law and the Business World”, in Emmanuel Decaux (ed.), La responsabilité des entreprises multinationales en matière de droits de l’homme, Bruylant: Brussels, 2010, pp. 227-251. “Judicial Activism and the Crime of Genocide”, in Shane Darcy and Joseph Powderly (eds.), Judicial Creativity at the International Criminal Tribunals, Oxford: Oxford University Press, 2010, pp. 63-79. “La peine de mort et la Convention européene des droits de l’homme”, in Michel Levinet (ed.), Le droit au respect de la vie au sens de la Convention européenne des droits de l’homme, Brussels: Bruylant, 2010, pp. 243-252. “Les Naciones Unidas y la abolición de la Pena de Muerte”, in Luis Arroyo, Paloma Biglino and William Schabas (eds.), Hacia la Abolitión Universal de la pena capital, Valencia: Tirant lo Blanch, 2010, pp. 256-268. “Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes”, (2010) 23 Leiden Journal of International Law 847853. “Raphael Lemkin, Genocide and Crimes Against Humanity”, in Agnieszka Bieńczyk-Missala and Sławomir Dębski (eds.), Rafał Lemkin: A Hero of Humankind, Warsaw: Polish Institute of International Affairs, 2010, pp. 233-256. “Retroactive Application of the Genocide Convention”, (2010) 4 University of St. Thomas Journal of Law & Public Policy 36-59. “The Genocide Convention at 60”, in Alice YotopoulosMarangopoulos and Photini Pazartis (eds.), Le génocide revisité / Genocide Revisited, Athens: Ant. N. Sakkoulas / Brussels: Bruylant, 2010, pp. 15-36. “The International Criminal Court and Non-Party States”, (2010) 28 Windsor Yearbook of Access to Justice 1-21. “Victor’s Justice: Selecting ‘Situations’ at the International William A. Schabas - 978-90-04-52150-6

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Criminal Court”, (2010) 32 John Marshall Law Review 535-552. “1969 Vienna Convention, Article 23, Procedure Regarding Reservations”, in Olivier Corten and Pierre Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary, Oxford: Oxford University Press, 2011, pp. 594-625 (with Alain Pellet). “Article 6”, in Emmanuel Decaux (ed.), Le Pacte international relative aux droits civils et politiques, Commentaire article par article, Paris: Economica, 2011, pp. 179199. “Criminology, Accountability, and International Justice”, in Mary Bosworth and Carolyn Hoyle (eds.), What is Criminology?, Oxford: Oxford University Press, 2011, pp. 346357. “Deuxième Protocole facultatif se rapportant au Pacte international relatif aux droits civils et politiques, visant à abolir la peine de mort”, in Emmanuel Decaux (ed.), Le Pacte international relative aux droits civils et politiques, Commentaire article par article, Paris: Economica, 2011, pp. 869-882. “Gaza, Goldstone and Lawfare”, (2011) 43 Case Western Reserve Journal of International Law 307-312. “International War Crimes Tribunals and the United States”, (2011) 35 Diplomatic History 769-786. “Synergy or Fragmentation? International Criminal Law and the European Convention on Human Rights”, (2011) 9 Journal of International Criminal Justice 609-632. “The Human Right To Peace”, in Asbjørn Eide, Jakob Th. Möller and Inete Ziemele (eds.), Making Peoples Heard: Essays on Human Rights in Honour of Gudmundur Alfredsson, Leiden and Boston: Martinus Nijhoff, 2011, pp. 43-57. “The Rise and Fall of Complementarity”, in Carsten Stahn and Mohamed M. El Zeidy (eds.), The International Criminal Court and Complementarity, Vol. I, Cambridge: Cambridge University Press, 2011, pp. 150-164. “A Step to Universal Abolition of the Death Penalty: Protocol No. 6 to the European Convention”, in Olivier Delas and Michaela Leuprecht (eds.), Liber Amicorum Peter Leuprecht, Brussels: Bruylant, 2012, pp. 297-320. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia v. Herzegovina v. Serbia and Montenegro)”, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International William A. Schabas - 978-90-04-52150-6

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Law, Vol. I, Oxford: Oxford University Press, 2012, pp. 469-475. “Freedom from Fear and the Human Right to Peace”, in David Keane and Yvonne McDermott (eds.), The Challenge of Human Rights: Past, Present and Future, Cheltenham, UK and Northampton, MA: Edward Elgar, 2012, pp. 36-51. “Genocide and Crimes Against Humanity: Clarifying the Relationship”, in H. G. van der Wilt, J. Vervliet, G. K. Sluiter and J. Th. M. Houwink ten Cate (eds.), The Genocide Convention: The Legacy of 60 Years, Leiden and Boston: Martinus Nijhoff, 2012, pp. 3-14. “Genocide”, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Vol. IV, Oxford: Oxford University Press, 2012, pp. 405-414. “The International Criminal Court: Struggling to Find its Way”, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford: Oxford University Press, 2012, pp. 250-260. “Transitional Justice and the Norms of International Law”, (2012) 110 Kokusaiho Gaiko Zassi: The Journal of International Law and Diplomacy 563-587. “Una vision a futura de la Corte Penal Internacional”, in Bernardo Sepúlveda Amor (ed.), Nuevos Diálogos sobre la Justicia Internacional, Mexico City: Secretariá de Relaciones Exteriores, 2012, pp. 179-186. “Первые десять лет Mеждунapoднoгo yгoлobнoгo сyдa”, (2012) 2.3 Meждyнapoднoe Пravocyдиe 5-16. “Building the Narrative: The UN Tribunals for the former Yugoslavia, Rwanda and Sierra Leone”, in Christian Delage and Peter Goodrich (eds.), The Scene of the Mass Crime: History, Film and International Tribunals, Abingdon: Routledge, 2013, pp. 23-40. “Do the “Underlying Values” of the European Convention on Human Rights Begin in 1950?”, (2013) 33 Polish Yearbook of International Law 247-258. “Initiation of Investigations and Selection of Cases”, in Goran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev and Salvatore Zappalà (eds.), International Criminal Procedure, Principles and Rules, Oxford: Oxford University Press, 2013, pp. 131-170 (with M. M. deGuzman). “International Criminal Law and Tribunals and Human Rights”, in Scott Sheeran and Sir Nigel Rodley (eds.), Routledge Handbook of International Human Rights Law, London and New York: Routledge, 2013, pp. 215-230. “Rights, History, and Turning Points”, in David Goutor and William A. Schabas - 978-90-04-52150-6

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Stephen Heathorn (eds.), Taking Liberties: A History of Human Rights in Canada, Toronto: Oxford University Press, 2013, pp. 261-271. “The Banality of International Justice”, (2013) 11 Journal of International Criminal Justice 545-551. “The Contribution of the Eichmann Trial to International Law”, (2013) 26 Leiden Journal of International Law 667-699. “Travaux préparatoires of Human Rights Instruments”, in André Alen, Veronique Joosten, Riet Leysen and Willem Verrijdt (eds.), Liberae Cogitationes: Liber Amicorum Marc Bossuyt, Cambridge, Antwerp, Portland: Intersentia, 2013, pp. 579-590. ]“Accountability for International Crimes: Special Tribunals and Referrals to the International Criminal Court”, in Jared Genser and Bruno Stagno Ugarte (eds.), The United Nations Security Council in the Age of Human Rights, Cambridge: Cambridge University Press, 2014, pp. 173-194. “International Criminal Courts”, in Cesare P. R. Romano, Karen J. Alter and Yuval Shany (eds.), The Oxford Handbook of International Adjudication, Oxford: Oxford University Press, 2014, pp. 205-224. “The Right to Life”, in Andrew Clapham and Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict, Oxford: Oxford University Press, 2014, pp. 365386. “The United Nations War Crimes Commission’s Proposal for an International Criminal Court”, (2014) 25 Criminal Law Forum 171-189. “Genocide Trials and Gacaca Courts”, (2005) 3 Journal of International Criminal Justice 879-895. “Selecting Cases at the International Criminal Tribunal for Rwanda”, in Charles Jalloh and Alhagi B. M. Marong (eds.), Promoting Accountability Under International Law for Gross Human Rights Violations in Africa, Leiden and Boston: Brill Nijhoff, 2015, pp. 58-70. “Selecting Situations and Cases”, in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford: Oxford University Press, 2015, pp. 365-381. “The Future of the United Nations Human Rights System”, in M. Cherif Bassiouni (ed.), Globalization and Its Impact on the Future of Human Rights and International Criminal Justice, Antwerp: Intersentia, 2015, pp. 115-122. “The Katyn Forest Massacre and the Nuremberg Trial”, in Morten Bergsmo, Cheah Wui Ling, Song Tianying and Yi Ping (eds.), Historical Origins of International Criminal Law, William A. Schabas - 978-90-04-52150-6

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Vol. 3, Brussels: Torkel Opsahl Academic Publishers, 2015, pp. 249-297. “The Special Adviser on the Prevention of Genocide and his Inscrutable Mandate”, in Charles Tiziki Majinge (ed.), Rule of Law through Human Rights and International Criminal Justice: Essays in Honour of Adama Dieng, Newcastle upon Tyne: Cambridge Scholars Publishing, 2015, pp. 65-81. “Genocídio”, in Sylvia Helena Steiner and Leonardo Nemer Caldeira Brandt (eds.), O Tribunal Penal Internacional – Comentários ao Estatuto de Roma, Belo Horizonte: Del Rey Editora, 2016, pp. 137-160. “Aggression and International Human Rights Law”, in Claus Kreß and Stefan Barriga (eds.), The Crime of Aggression: A Commentary, Cambridge: Cambridge University Press, 2017, pp. 351-371. “Defining Enforced Disappearance as a Crime Against Humanity”, in Mylène Bideault, Mouloud Boumghar, Oliver de Frouville and Laurent Trigeaud (eds.), Mélanges en l’honneur du professeur Emmanuel Decaux, Réciprocité et universalité, Sources et régimes du droit international des droits de l’homme, Paris: Pédone, 2017, pp. 449-466. “El Mahdi Has Been Convicted of a Crime He Did Not Commit”, (2017) 49 Case Western Reserve Journal of International Law 75-102. “Genocide and the ICERD”, in David Keane and Annapurna Waughray (eds.), Fifty Years of the International Convention on the Elimination of All Forms of Racial Discrimination: A Living Instrument, Manchester: Manchester University Press, 2017, pp. 169-181. “Nikolaos Politis and the Earliest Negotiation to Establish an International Criminal Court”, in Jean-Paul Jacqué, Florence Benoît-Rohmer, Panagiotis Grigoriou and Maria Daniella Marouda (eds.), Liber Amicorum Stelios Perrakis, Athens: I. Sideris, 2017, pp. 167-177. “Strict Construction and the Rome Statute”, in Steven Dewulf (ed.), La [CVDW], Liber Amicorum Chris Van den Wyngaert, Antwerp and Apeldoorn: Masklu, 2017, pp. 425440. “The Human Right to Peace”, (2017) 58 Harvard International Law Journal 28-32. “The Use of Force in the Nicaraguan Cases”, in Edgardo Sobenes Obregon and Benjamin Samson (eds.), Nicaragua Before the International Court of Justice, Cham: Springer International, 2017, pp. 305-326. William A. Schabas - 978-90-04-52150-6

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“Article 4 – Interdiction de la torture et des peines ou traitements inhumains ou dégradants”, in Fabrice Picod and Sébastien Van Drooghenbroeck (eds.), Charte des droits fondamentaux de l’Union européenne, Commentaire article par article, Brussels: Bruylant, 2018, pp. 103-114. “Dreptul omului la Pace”, in Aurora Ciucă (ed.), 100 de ani de Gândire Juridică Românescă Vespasian V. Pella și dezvoltarea Dreptului Penal Internațional si Național, Iași: Editura Universității Alexandru Ioan Cuza, 2018, pp, 34-38. “International Prosecution of Sexual and Gender-Based Crimes Perpetrated During the First World War”, in Martin Böse, Michael Bohlander, André Klip and Otto Lagodny (eds.), Festschrift for Wolfgang Schomburg, Leiden: Brill, 2018, pp. 395-410. “Nuremberg and Aggressive War”, in Leila Nadya Sadat (ed.), Seeking Accountability for the Unlawful Use of Force, Cambridge: Cambridge University Press, 2018, pp. 5879. “Prevention of Crimes Against Humanity”, (2018) 16 Journal of International Criminal Justice 702-728. “Principle 20: Jurisdiction of International and Internationalized Criminal Tribunals”, in Frank Haldemann and Thomas Unger (eds.), The United Nations Principles to Combat Impunity: A Commentary, Oxford: Oxford University Press, 2018, pp. 219-225. “Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth?”, in Nanci Adler (ed.), Understanding the Age of Transitional Justice: Crimes, Courts, Commissions, and Chronicling, New Brunswick, NJ: Rutgers University Press, 2018, pp. 37-55. “International Law and the Abolition of the Death Penalty”, in Carol S. Steiker and Jordan M. Steiker (eds.), Comparative Capital Punishment, Cheltenham: Edward Elgar, 2019, pp. 217-231. “John Peters Humphrey: The Man Behind the First Draft of the Universal Declaration of Human Rights”, in Kasey McCall Smith, Jan Wouters and Felipe Gómez Isa (eds.), The Faces of Human Rights, Oxford: Hart, 2019, pp. 115-123. “Kwalifikacja prawna rzezi Woli”, in Eryk Habowski (ed.), Wola 1944, Nierzliczona Sbrodnia a Pojęcie Ludobójstwa, Warsaw: Instytut Solidarności i Męstwa im. Witolda Pileckiego, 2019, pp. 83-94. “The Right to Truth: When Does it Begin?”, in Fannie Lafontaine and François Larocque (eds.), Doing Peace the Rights Way: Essays in International Law and Relations in William A. Schabas - 978-90-04-52150-6

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Honour of Louise Arbour, Cambridge, Antwerp, Chicago: Intersentia, 2019, pp. 37-52. “Le droit coutumier, les normes impératives (jus cogens) et la Cour européenne des droits de l’homme”, (2020) Revue québécoise de droit international (special issue) 681-704. “Main Challenges and the Future of International Criminal Law”, in Sharon Weill, Kim Thuy Seelinger and Kerstin Bree Carlson (eds.), The President on Trial: Prosecuting Hissène Habré, Oxford: Oxford University Press, 2020, pp. 416-430. “The Dynamics of the Rome Conference”, in Margaret M. deGuzman and Valerie Oosterveld (eds.), The Elgar Companion to the International Criminal Court, Cheltenham: Edward Elgar, 2020, pp. 3-19.

William A. Schabas - 978-90-04-52150-6

William A. Schabas - 978-90-04-52150-6

PUBLICATIONS OF THE HAGUE ACADEMY OF INTERNATIONAL LAW

William A. Schabas - 978-90-04-52150-6

COLLECTED COURSES Since 1923 the top names in international law have taught at The Hague Academy of Inter­national Law. All the volumes of the Collected Courses which have been published since 1923 are available, as, since the very first volume, they are reprinted regularly in their original format. Since 2008, certain courses have been the subject of a pocketbook edition. In addition, the total collection now exists in electronic form. All works already published have been put “on line” and can be consulted under one of the proposed subscription methods, which offer a range of tariffs and possibilities.

WORKSHOPS The Academy publishes the discussions from the Workshops which it organizes. The lat­est title of the Workshops already pub­lished is as fol­lows  : Topicality of the 1907 Hague Conference, the Second Peace Conference (2007).

CENTRE FOR STUDIES AND RESEARCH The scientific works of the Centre for Studies and Research in International Law and International Relations of The Hague Academy of International Law, the subjects of which are chosen by the Curatorium of the Academy, have been published, since the Centre’s 1985 session, in a publication in which the Directors of Studies reported on the state of research of the Centre under their direction. This series has been discontinued and the title of the latest booklet published is as follows : Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts. Nevertheless, when the work of the Centre has been of particular interest and originality, the reports of the Directors of Studies together with the articles by the researchers form the subject of a collection published in the series The Law Books of the Academy.

Requests for information, catalogues and orders for publications must be addressed to

MARTINUS NIJHOFF PUBLISHERS P.O. Box 9000, 2300 PA Leiden    The Netherlands

http://www.brill.nl

William A. Schabas - 978-90-04-52150-6

POCKETBOOKS OF THE ACADEMY (By chronological order of publication)

1 Gaillard, E. : Aspects philosophiques du droit de l’arbitrage international, 2008, 252 pages.  (ISBN 978-90-04-17148-0) 2 Schrijver, N. : The Evolution of Sustainable Development in International Law : Inception, Meaning and Status, 2008, 276 pages. (ISBN 978-90-04-17407-8) 3 Moura Vicente, D. : La propriété intellectuelle en droit international privé, 2009, 516 pages.  (ISBN 978-90-04-17907-3) 4 Decaux, E. : Les formes contemporaines de l’esclavage, 2009, 272 pages. (ISBN 978-90-04-17908-0) 5 McLachlan, C. : Lis Pendens in International Litigation, 2009, 492 pages.  (ISBN 978-90-04-17909-7) 6 Carbone, S. M. : Conflits de lois en droit maritime, 2010, 312 pages. (ISBN 978-90-04-18688-0) 7 Boele-Woelki, K. : Unifying and Harmonizing Substantive Law and the Role of Conflict of Laws, 2010, 288 pages.  (ISBN 978-90-04-18683-5) 8 Onuma, Y. : A Transcivilizational Perspective in International Law, 2010, 492 pages. (ISBN 978-90-04-18689-7) 9 Bucher, A. : La dimension sociale du droit international privé. Cours général, 2011, 552 pages.  (ISBN 978-90-04-20917-6) William A. Schabas - 978-90-04-52150-6

10 Thürer, D. : International Humanitarian Law : Theory, Practice, Context, 2011, 504 pages. (ISBN 978-90-04-17910-3) 11 Alvarez, J. E. : The Public International Law Regime Governing International Investment, 2011, 504 pages.  (ISBN 978-90-04-18682-8) 12 Wang, G. : Radiating Impact of WTO on Its Members’ Legal System : The Chinese Perspective, 2011, 384 pages.  (ISBN 978-90-04-21854-3) 13 Bogdan, M. : Private International Law as Component of the Law of the Forum, 2012, 360 pages.  (ISBN 978-90-04-22634-0) 14 Davey, W. J. : Non-discrimination in the World Trade Organization : The Rules and Exceptions, 2012, 360 pages.  (ISBN 978-90-04-23314-0) 15 Xue Hanqin : Chinese Contemporary Perspectives on International Law — History, Culture and International Law, 2012, 288 pages.  (ISBN 978-90-04-23613-4) 16 Reisman, W. M. : The Quest for World Order and Human Dignity in the Twenty-first Century : Constitutive Process and Individual Commitment. General Course on Public International Law, 2012, 504 pages.  (ISBN 978-90-04-23615-8) 17 Dugard, J. : The Secession of States and Their Recognition in the Wake of Kosovo, 2013, 312 pages. (ISBN 978-90-04-25748-1) 18 Gannagé, L. : Les méthodes du droit international privé à l’épreuve des conflits de cultures, 2013, 372 pages. (ISBN 978-90-04-25750-4) William A. Schabas - 978-90-04-52150-6

19 Kohler, Ch. : L’autonomie de la volonté en droit international privé : un principe universel entre libéralisme et étatisme, 2013, 288 pages. (ISBN 978-90-04-25752-8) 20 Kreindler, R. : Competence-Competence in the Face of Illegality in Contracts and Arbitration Agreements, 2013, 504 pages. (ISBN 978-90-04-25754-2) 21 Crawford, J. : Chance, Order, Change : The Course of International Law. General Course on Public International Law, 2014, 540 pages. (ISBN 978-90-04-26808-1) 22 Brand, R. A. : Transaction Planning Using Rules on Jurisdiction and the Recognition and Enforcement of Judgments, 2014, 360 pages.  (ISBN 978-90-04-26810-4) 23 Kolb, R. : L’article 103 de la Charte des Nations Unies, 2014, 416 pages.  (ISBN 978-90-04-27836-3) 24 Benvenisti, E. : The Law of Global Governance, 2014, 336 pages. (ISBN 978-90-04-27911-7) 25 Yusuf, A. A. : Pan-Africanism and International Law, 2014, 288 pages.  (ISBN 978-90-04-28504-0) 26 Kono, T. : Efficiency in Private International Law, 2014, 216 pages.  (ISBN 978-90-04-28506-4) 27 Cachard, O., Le transport international aérien de passagers, 2015, 292 pages. (ISBN 978-90-04-29773-9) William A. Schabas - 978-90-04-52150-6

28 Corten, O. : La rébellion et le droit international, 2015, 376 pages.  (ISBN 978-90-04-29775-3) 29 Frigo, M., Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des litiges, 2016, 552 pages.  (ISBN 978-90-04-32129-8) 30 Bermann, G. A., International Arbitration and Private International Law, 2017, 648 pages. (ISBN 978-90-04-34825-7) 31 Bennouna, M., Le droit international entre la lettre et l’esprit, 2017, 304 pages.  (ISBN 978-90-04-34846-2) 32 Murphy, S., International Law relating to Islands, 376 pages. (ISBN 978-90-04-36154-6) 33 Hess, B., The Private-Public Law Divide in International Dispute Resolution, 328 pages. (ISBN 978-90-04-38490-3) 34 Rau, A. : The Allocation of Power between Arbitral Tribunals and State Courts, 2018, 608 pages.  (ISBN 978-90-04-38891-8) 35 Muir Watt, H. : Discours sur les méthodes du droit international privé (des formes juridiques de l’inter-altérité, 2019, 608 pages.  (ISBN 978-90-04-39558-9) 36 Nolte, G. : Treaties and Their Practice – Symptoms of Their Rise or Decline, 2018, 288 pages.  (ISBN 978-90-04-39456-8) William A. Schabas - 978-90-04-52150-6

37 Cuniberti, G. : Le fondement de l’effet des jugements étrangers, 2019, 288 pages.  (ISBN 978-90-04-41180-7) 38 D’Avout, L. : L’entreprise et les conflits internationaux de lois, 875 pages.  (ISBN 978-90-04-41668-0) 39 Brown Weiss, E. : Establishing Norms in a Kaleidoscopic World, 528 pages.  (ISBN 978-90-04-42200-1) 40 Brunnée, J. : Procedure and Substance in International Environmental Law, 2020, 240 pages. (ISBN 978-90-04-44437-9) 41 Rajamani, L. : Innovation and Experimentation in the International Climate Change Regime, 2020, 336 pages. (ISBN 978-90-04-44439-3) 42 Kessedjian, C. : Le tiers impartial et indépendant en droit international, juge, arbitre, médiateur, conciliateur, 2020, 832 pages. (ISBN 978-90-04-44880-3) 43 Maljean-Dubois, S. : Le droit international de la biodiversité, 2021, 590 pages. (ISBN 978-90-04-46287-8) 44 Dasser, F. : “Soft Law” in International Commercial Arbitration, 2021, 300 pages. (ISBN 978-90-04-46289-2) 45 Peters, A. : Animals in International Law, 2021, 641 pages. (ISBN 978-90-04-46624-1) William A. Schabas - 978-90-04-52150-6

46 Besson, S. : La due diligence en droit international, 2021, 363 pages. (ISBN 978-90-04-46626-5) 47 Ferrari, F. : Forum Shopping Despite Unification of Law, 2021, 446 pages. (ISBN 978-90-04-50291-8) 48 Wolfrum, R. : Solidarity and Community Interests: Driving Forces for the Interpretation and Development of International Law, 2021, 663 pages. (ISBN 978-90-04-50832-3) 49 Kolb, R. : Le droit international comme corps de « droit privé » et de « droit public », 2022, 967 pages. (ISBN 978-90-04-51836-0) 50 Tladi, D. : The Extraterritorial Use of Force against Non-State Actors, 2022, 193 pages. (ISBN 978-90-04-52147-6)

William A. Schabas - 978-90-04-52150-6

Printed in May 2022 by Triangle Bleu, 59600 Maubeuge (France) Setting : R. Mirland, 59870 Warlaing (France)

William A. Schabas - 978-90-04-52150-6