International Criminal Law Sample Assignment

The nature of ICL can be expressed as complex because different factors contribute to its inconsistent application. The major factor is that it is composed of different strands of law. Mostly it is derived from International Humanitarian Law (IHL), which previously restricts nations to conduct war according to specified legal parameters. Those who violate those parameters were subject to be the culprit of war crime. In addition, the Nuremberg Tribunal also revealed that the roots of both customary law and treaty impose international criminal responsibility on persons. Other than International Humanitarian law, International Human rights Law is also the major contributor of ICL[15]. Many substantive misconducts are taken from the perspective of human rights especially the crimes of discrimination. Also, both the crimes of genocide and crimes against humanity fits in this model of ICL. International human rights possess the greatest potential to provide practical protections to the defendants of crime.

The norms of ICL comprise of precepts like protection against double jeopardy, ‘nullum crimen sine lege’ i.e. the concept of innocence, provision of protection of trials mainly derives from international human rights law[16]. The third strand of ICL comes from domestic law. When it comes to draft the treaties and development of customary international law, the participants involved in the drafting the ICL also brought in their own understanding of criminality which is based on their legal traditions. So many comments that international criminal law is something not new rather it is a complete or partial modification of domestic law which is now named as ICL[17]. This issue was raised because the nature of domestic and international crimes is different from cultural, political and legal context under which these crimes are conducted. But still many argue that domestic law approach can also be effective for international crimes.

Although the ICL presents general rules and a legal system for the punishment and conviction of those culpable of serious crimes, still the actual process for determining the culprit varies from system to system. This happens mostly when an individual has to be determined or identified for the collective criminality. The process for determining the culpability is characterized by several principles set against the accomplices, by the nature and complexity of crime, extent to which someone aid and assist in the act of crime and also to determine that whether the person is a co-perpetrator or not. As there are different international tribunals present, so each has its own set of criteria to assess and determine culpability and individual criminal responsibility.

As discussed earlier that one of the sources of incoherence in ICL is the multiple decision making. The different tribunals have their own principles to interfere with the founding documents of ICL which obviously impact the final results. Although the definitions of crimes are pretty much the same for all tribunal laws and documents but still the way, they interpret the text to reflect the variation in their procedures. For instance, the ICTY is designed in a way that it has to consider CIL, while on the other hand ICC can use its own statutory language for determining criminality and individual responsibility. However, there are some hybrid courts like Extraordinary Chambers in the Courts of Cambodia (“ECCC”)[18] which can apply both the domestic and international law[19]. This shows that definition of the mode of participation does create issues which are usually not expressed in founding documents of any tribunal.

Whenever the individual criminal responsibility is discussed under the ICL, it has to begin with Nuremberg. The developers of Nuremberg Charter focused on addressing the nature of Nazi delinquency in two distinct ways. First, they consider planning for liability and act of conspiracy as crime participation. The Charter also present a definition of certain crimes. For instance, the language used to define crimes against peace was “Planning, initiating, preparing, waging or naming any war of aggression, violation of international treaties in war or assurance or agreements or participating in the act of conspiracy or plan for any crime.” In addition, except from presenting the definitions of war crimes and crimes against Humanity the Nuremberg tribunal article 6 stated that “Organizers, leaders, accomplices, and instigators who participate in the development or execution of a conspiracy plan or involve in the commitment of an international crime will be held responsible for the acts performed by an individual for the completion of any such plan.” The two extracts from the tribunal document established the crime of conspiracy and mode of participation. Well, however, it is pretty much clear that the Nuremberg Tribunal has no authority or power to conduct the trial for individuals who were found to be the culprit of war crimes or crimes against humanity. Out of twenty-two- defendants, only eight defendants that were tried at IMT at Nuremberg were convicted for involving in acts of conspiracy and also only according to article 6 against crimes against peace.

Another way, the drafters of Charter statute purposed to condemn the crimes of the Nazi regime was to permit the prosecution and accusation of some institutes according to articles 9 and 10. For the trial of individual defendants, it was planned that the tribunal would have to declare the institute or organization from which the culprit member belong to as a criminal organization. Following that if an individual is in search of attaining membership in such organizations then it would be deemed as per se criminal according to national, military occupation courts. Any organization which is found to be involved in crimes against peace or found guilty of war crimes or crimes against humanity and criminal conspiracy will be liable to appear in criminal court. Hence according to the plan such organizations have will be declared illegal and their official will be subjected to arrest and prosecution in front of national courts.

Collective Crime, Responsibility & Punishment

The formation of collective responsibility by international law is created only for establishing certain rules with significant exceptions. There are certain procedures defined in international law against the person for whom the sanction will be directed which will further determine his own conduct and to what extent the law has been violated. George Fletcher argues that when the rights of an individual’s self-defense are discussed then they are not solely justified by individual rights but it should be defended by the collective legal order[20]. According to this opinion an attack against one is regarded as an attack against all, similarly defense for one is linked with defense for all. Fletcher[21] has further justified his belief by arguing that an individualist approach towards the justification of individual self-defense is substandard to a society based approach. As it is believed that the right of national or collective self-defense are interlinked with one another where more emphasis is placed on the right of an individual. However, Fletcher has reversed the analogy by reversing the directions of self-defense according to him the right of an individual towards self-defense is a projection of the idea of national defense where nations are using force for keeping dominance not only on their territories but also on their people[22].

Further Fletcher argues that when some domestic crime is highlighted then it is also connected with collective victim, and in such case criminal punishment for an individual in not enough because the harm exists in a collective form rather than as an individual. For instance if a case of assassination is considered then the issue at this point is the value of life as a whole and not particularly the life of deceased individual. The victims of such crimes when appear in criminal law as individual then they are perceived as representatives of the public as a whole. The perception of Fletcher regarding war crime is almost similar in which he states that crimes of international criminal law are different from domestic crimes. The reason provided for this perception is that such crimes involve collective victims and are also committed by collective representatives. At this point what needs to be understood is that war is something which does not occur between man and man but it is something which happens between states. The collective nature of crime which is mentioned here is that the enemies of one state will be another state and not just men at all. This perception has further been elaborated by Rousseau[23] who agrees with the fact that war happens between states and when condition of war is imposed on any state then it recreates an alternative identity for the people of that state. The individuals who participate in war, is although an individual but at this time becomes a soldier who follows a chain of commands. Hence soldier is just a servant of the state and is not an autonomous agent at this point.

In contrast to international law, International criminal law consider individual persons as accountable rather than states accountable for the crime performed which falls in the jurisdiction of the ICC. The crimes categorized in this category by ICC include: crimes against humanity, aggression, genocide and above all war crimes. The collective orientation of such crimes to explicit recognition of individual liability for crimes are specified in Rome Statute[24] in Hague and Geneva Conventions[25]. But here Fletcher claims that there is an underlying aspect which must be explored during the occurrence of these offenses. This justification further lead to the transformation of individual liability at the International Criminal Court to collective offenses. The crimes which are prosecuted in ICC will thus be deemed as collective crimes although in such cases an individual is prosecuted for the crime performed. But here this individual represent the group and that person will be considered as a member of that hostile group and how they all engaged towards the commencement of a particular crime.

When a collective crime is performed it is usually perceived to give collective punishment in the form of war with that particular group. Fletcher has disapproved collective punishment because he has provided justification in which he proposes that a culture is responsible for nurturing criminals or terrorists. It would be unjust to punish people collectively in this scenario because it is not right to punish everyone in that group for the crime committed by some particular individual. He further states that arbitrary punishment should be regarded as an alternative to collective punishment, as it is unjust to accuse everyone who are the member of that group as criminals and punish them collectively.

Conclusion

Well, it can be concluded that since the beginning and end of World War II the need for enforcing fair war laws was identified. The development of Nuremberg tribunal, ad hoc, and various other tribunals were the steps towards establishing such a system. However, there are certain facts identified in the essay that reflect that as these tribunals were established based on different situations, and in response to different war crimes, so they vary in their process of determining war crimes. Besides, the major participants of the Security Council or these tribunals were the member of superpowers who themselves were the culprit of many war crimes. Hence their power and influence seldom led them under the prosecution of war crimes. The study also highlighted and defined different types of crimes that are dealt with under the International Criminal law. In addition, the individual responsibility of crime and the concept of collective criminality is also discussed in detail. The statute of different tribunals clearly defines the principles against which the war crimes can be determined and also provide the understanding that in what circumstances individuals and the organizations to which they are related are determined as criminals. The sole purpose of creating international criminal law was to provide an international system for punishing those who violate the humanitarian laws in war. But still, after so many reforms the ICL is limited in many ways. 

Having considered the detailed discussion about various offenses and crimes which are dealt by International Criminal Law it is clear that the Rome Statue[26] is the defining procedure for such crimes. The Rome Statue indicates the type of consequences of a particular act of crime, hence the corresponding statues are applied in deciding the nature and the form of punishment for international prosecution. Further the collective nature of crimes which involve genocide and crimes against humanity are regarded as serious war crimes as compared to other international crimes because in such cases negating the liability of such cases is almost difficult to excuse. At this point it is also clearly elaborated in international crime law that genocide is regarded as a more severe crime in comparison to the crimes against humanity or war crimes and it is liable to find the nature of such offense and what was the real purpose behind such mass destruction. Still there are serious lacking in the law which makes genocide as the hardest crime which can be proved and be defensed for, hence some statues and standards must be defined for such crime both at national and international levels. 

Hence it can thus be concluded that whenever a collective crime is executed then there has to be joint acceptance of the consequences. There are situations when collective crimes are executed as politically legitimate and morally right then in such condition it is the responsibility of the state and its subjects to face the consequences of the crime which can either be positive or negative. In such condition the consequences of the crime will also be acknowledged as legitimate and right. This is the stage of apprehending the problem and taking moral responsibility of the criminal act executed through joint participation. After the establishment of United Nations the creation of ICC is thus regarded as a beneficial event in the international law arena because it has stipulated one of the complicated instruments that has ever been adopted. Thus the statue proposed by ICC does not stop on mere criminal responsibility of individuals who have committed crime as defined by the Statue. It is also applicable on the individuals who are found to be indirectly involved in committing crime under the statues of international law. Therefore the decisions and recommendations which will be made further in this regard by the tribunals will be of significant importance, as they will be further strengthen international criminal and international humanitarian law along with identification of asserting individual criminal responsibility.

Bibliography

Books

Creyer, R., An Introduction to International Criminal Law and Procedure. 3rd Edition ed. s.l.:Cambri-dge University Press, [2014].

Damgaard, C., Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues. s.l.:Springer Science & Business Media, [2008].

Krammer, A., War Crimes, Genocide, and the law. s.l.:Praeger, [2010].

May, L., Crimes Against Humanity – A Normative Account. s.l.:Cambridge University Press, [2005].

Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].

Schabas, W. A., An Introduction to the International Criminal Court. 3rd Edition ed. s.l.:Cambridge University Press, [2007].

Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].

W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].

Journals

Dembour, M.-B. & Haslam, E., Silencing Hearings? Victim-Witnesses at War Crimes Trials. European Journal of International Law, 15(1), [2004].

Drumbl, M. A., Collective Violence and Individual Punishment: The Criminality of Mass Atrocity. Washington and Lee University School of Law, pp. 1-99, [2005].

Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].

Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].

McGuire, J., A review of effective interventions for reducing aggression and violence. Philosophical Transactions London Biological Sciences, Volume 363, p. 2577–2597, [2008].

Muttukumaru, C., Reparation to Victims, in Roy S. Lee.. The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results. The Hague: Kluwer Law International, [1999].

Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].

Websites

Dimitrijevic, N., 2006. Moral responsibility for collective crime. [Online]
Available at: https://www.eurozine.com/moral-responsibility-for-collective-crime/
[Accessed 2019].

MCMAHAN, J., 2008. Collective Crime and Collective Punishment, Criminal Justice Ethics. [Online]
Available at: https://pdfs.semanticscholar.org/10e0/8efb70847377e75fb39952a3ae17db01d5db.pdf
[Accessed 2019].

Legislations

Rome Statute of the International Criminal Court (1998)

Additional Protocol I (1977) of the Geneva Convention (1949)

Convention on the Prevention and Punishment of the Crime of Genocide (1948)

[1] Schabas, W. A., An Introduction to the International Criminal Court. 3rd Edition ed., Cambridge University Press, [2007].

[2] Creyer, R., An Introduction to International Criminal Law and Procedure. 3rd Edition ed. Cambridge University Press, [2014].

[3] May, L., Crimes Against Humanity – A Normative Account. s.l.:Cambridge University Press, [2005].

[4] Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].

[5] Convention on the Prevention and Punishment of the Crime of Genocide (1948)

[6] Krammer, A., War Crimes, Genocide, and the law. s.l.:Praeger, [2010].

[7] Rome Statute of the International Criminal Court (1998)

[8] Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].

[9] Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].

[10] W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].

[11] Schabas, W. A., An Introduction to the International Criminal Court. 3rd edition ed. Caambridge: Cambridge University Press, [2007].

[12] W.A.Schabas, The International Criminal Court: A Commentary on the Rome Statute. s.l.:Oxford University Press, [2010].

[13] Damgaard, C., Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues. s.l.:Springer Science & Business Media, [2008].

[14] Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].

[15] Kelsen, H., Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals. California Law Review, [2010].

[16] Drumbl, M. A., Collective Violence and Individual Punishment: The Criminality of Mass Atrocity. Washington and Lee University School of Law, pp. 1-99, [2005].

[17] Stephens, P. J., Collective Criminality and Individual Responsibility: The Constraints of Interpretation. Fordham International Law Journal, Vermont Law School Research Paper , p. 501, [2014].

[18] Dembour, M.-B. & Haslam, E., Silencing Hearings? Victim-Witnesses at War Crimes Trials. European Journal of International Law, 15(1), [2004].

[19] Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].

[20] Garkawe, S., Victims and the International Criminal Court: Three major issues. International Criminal Law Review, Volume 345, pp. 3-12, [2003].

[21] Fletcher and Ohlin, DH, 196-97, Fletcher, RW, 156

[22] Schabas, W. A., Genocide in International Law. s.l.:Cambridge University Press, [2000].

[23] Jean-Jacques Rousseau, The Social Contract, in Social Contract: Essays by Locke, Hume, and Rousseau, trans. Gerard Hopkins (Oxford, UK: Oxford University Press, 1947), 249-50

[24] Rome Statute of the International Criminal Court (1998)

[25] Additional Protocol I (1977) of the Geneva Convention (1949)