International Criminal Law

by Cassese, Antonio

• ISBN13: 9780199259113
• ISBN10: 0199259119
• Edition: 1st
• Format: Paperback
• Copyright: 2003-05-15
• Publisher: Oxford University Press

Summary

This new book by Cassese provides a clear and concise account of the principles governing international crimes and an outline of international criminal trials. Adopting a combination of the classic common law and more theoretical approaches to the subject, it expounds the fundamentals of both substantive and procedural international criminal law, providing a theoretical framework to all the rules, principles, concepts, and legal constructs key to the subject. It also offers extensive treatment of the most significant traditional and novel cases in English, as well as unique English translations of a selection of relevant judgments in Dutch, French, German, Italian, and Spanish, demonstrating the historical and human dimensions of such cases, and providing effective illustration of the practical problems encountered by criminal courts.

Author Biography

Antonio Cassese is Professor of International Law at the University of Florence, and former President of the International Criminal Tribunal for the Former Yugoslavia

Table of Contents

Preface	xv
Abbreviations	xvii
Table of Cases Cited	xxiii
PART I: INTRODUCTION
The Reaction of the International Community to Atrocities	3	(12)
The failure of international sanctions by States	3	(2)
Other responses to atrocities	5	(10)
Fundamentals of International Criminal Law	15	(32)
The notion of international criminal law	15	(1)
General features of international criminal law	16	(7)
The notion of international crimes	23	(2)
Sources of international criminal law	25	(12)
The historical evolution of international crimes	37	(10)
PART II: SUBSTANTIVE CRIMINAL LAW
SECTION I: INTERNATIONAL CRIMES
War Crimes	47	(17)
The notion	47	(2)
The need for a link between the offence and an (international or internal) armed conflict	49	(1)
Establishing whether a serious violation of international humanitarian law has been criminalized	50	(4)
The objective elements of the crime	54	(3)
The subjective element of the crime	57	(2)
The definition of war crimes in the Statute of the ICC	59	(5)
Crimes Against Humanity	64	(32)
The notion	64	(3)
The origin of the notion	67	(7)
The objective element of the crime	74	(7)
The subjective element of the crime	81	(2)
The possible authors of the crime	83	(2)
The possible victims of the crime	85	(6)
Customary international law and Article 7 of the ICC Statute	91	(5)
Genocide	96	(14)
The notion	96	(2)
The objective element of the crime	98	(5)
The subjective element of the crime	103	(3)
Genocide and crimes against humanity	106	(1)
Article 6 of the ICC Statute	107	(3)
Other International Crimes (Aggression, Torture, and Terrorism)	110	(25)
Introduction	110	(1)
Aggression: the notion	111	(3)
Objective and subjective elements of aggression	114	(3)
The possible impact on judicial findings of the appraisal of aggression by international political bodies	117	(1)
Torture: general	117	(2)
The emergence of a customary rule on torture	119	(1)
Objective and subjective elements of torture	119	(1)
Trans-national, State-supported, or State-sponsored terrorism	120	(5)
The diverse forms of terrorism	125	(10)
SECTION II: FUNDAMENTALS OF INTERNATIONAL CRIMINAL RESPONSIBILITY
General Principles	135	(24)
Preliminary remarks	135	(1)
The principle of individual criminal responsibility	136	(3)
The principle of legality of crimes (nullum crimen sine lege)	139	(6)
Articulations of the principle of legality	145	(12)
The principle of legality of penalties (nulla poena sine lege)	157	(2)
Mens Rea	159	(20)
The methodological problem	159	(3)
General categories of mens rea: intent	162	(6)
Recklessness	168	(3)
Culpable negligence	171	(5)
The ICC Statute	176	(1)
Judicial determination of the subjective element	177	(2)
Perpetration and Other Modalities of Criminal Conduct	179	(21)
General	179	(1)
Perpetration	180	(1)
Co-perpetration	181	(1)
Participation in a common purpose or design	181	(8)
Incitement or instigation as a form of participation in international crimes	189	(1)
Inchoate crimes: general	190	(2)
Planning	192	(1)
Ordering	193	(1)
Attempt	194	(2)
Conspiracy to commit genocide	196	(2)
Incitement to genocide	198	(2)
Criminal Liability for Omissions	200	(12)
General	200	(1)
Rules imposing the positive obligation to act	201	(2)
Mens rea	203	(1)
The responsibility of superiors	203	(9)
Multiplicity of Offences	212	(7)
General	212	(1)
Differentiating classes of multiple offences	212	(5)
The test based on protected values	217	(1)
The impact of multiplicity of crimes on sentencing	217	(2)
Circumstances Excluding Criminal Liability: Justifications and Excuses	219	(12)
The distinction between justifications and excuses	219	(2)
Customary international law: general	221	(1)
Self-defence	222	(2)
Excuses: two main categories	224	(1)
Excuses based on lack of individual autonomy	224	(5)
The ICC Statute	229	(2)
Other Excuses: Superior Order, Necessity, Duress, and Mistake	231	(33)
Superior orders: may they be pleaded as a defence?	231	(11)
Necessity and duress	242	(9)
Mistake of fact	251	(5)
Mistake of law	256	(8)
Immunities	264	(13)
General: various classes of immunities	264	(1)
Functional and personal immunities provided for in international customary law	265	(2)
The customary rule lifting functional immunities in the case of international crimes	267	(4)
International personal immunities	271	(2)
National personal immunities	273	(4)
PART III: PROSECUTION AND PUNISHMENT BY NATIONAL COURTS
Legal Grounds of Jurisdiction	277	(24)
Introduction	277	(1)
The principle of territoriality	277	(4)
The principle of active nationality	281	(1)
The principle of passive nationality	282	(2)
The universality principle	284	(8)
Objections to universality	292	(1)
Is the exercise of universal jurisdiction allowed by customary international law?	293	(2)
Trends in the exercise of national criminal jurisdiction	295	(6)
The Impact of International Law on National Legislation	301	(11)
Are there international customary rules obliging States to prosecute international crimes?	301	(2)
Are there customary rules authorizing States to prosecute international crimes?	303	(1)
The limited impact of international law on national courts	303	(6)
International rules imposing respect for fundamental safeguards in national trials	309	(3)
Legal Impediments to the Exercise of National Jurisdiction	312	(15)
Amnesty	312	(4)
Statues of limitation	316	(3)
The prohibition of double jeopardy (ne bis in idem)	319	(2)
Immunities	321	(6)
PART IV: PROSECUTION AND PUNISHMENT BY INTERNATIONAL COURTS
SECTION I: GENERAL
The Establishment of International Criminal Tribunals	327	(21)
Abortive early attempts (1919--1945)	327	(2)
Criminal prosecution in the aftermath of the Second World War: the Nuremberg and Tokyo Tribunals (1945--1947)	329	(4)
The work of the ILC (1950--1954) for the elaboration of the statute of an international criminal court	333	(1)
The post-Cold War `new world order' and the development of ad hoc Tribunals (1993--1994)	334	(6)
The drafting and adoption of the Statute of the ICC (1994--1998)	340	(3)
The establishment of so-called internationalized or mixed criminal courts or tribunals	343	(5)
International Versus National Jurisdiction	348	(17)
Primacy and complementarity	348	(1)
The primacy of the ICTY and the ICTR	349	(2)
The complementarity of the ICC	351	(2)
The Nuremberg scheme versus the ICC scheme	353	(2)
The need for international criminal courts and tribunals to rely upon State co-operation	355	(1)
Models of co-operation	355	(2)
Co-operation of States under the ICTY and ICTR scheme	357	(1)
Co-operation of States under the ICC scheme	358	(2)
The question of surrender of nationals	360	(5)
SECTION II: INTERNATIONAL CRIMINAL TRIALS
The Adoption of the Fundamental Features of the Adversarial System at the International Level	365	(24)
The adversarial versus the inquisitorial system: general	365	(2)
How the two models work: a comparison	367	(9)
The transposition of the adversarial model on to the international legal level	376	(10)
The principal elements of the inquisitorial model incorporated into international procedure	386	(1)
Towards a `mixed' procedural model	387	(2)
The General Principles Governing International Criminal Trials	389	(17)
The nature and role of the principles	389	(1)
The presumption of innocence	390	(3)
The principle that judges must be independent and impartial	393	(2)
The principle of fair and expeditious trial	395	(5)
The principle that the accused must be present at his trial	400	(6)
Stages of International Proceedings in Outline	406	(39)
Prosecutor's Investigations and Pre-Trial Proceedings
General	406	(1)
The setting in motion of international criminal investigations	406	(2)
Conditions the prosecutor must fulfil before initiating an investigation	408	(1)
Conduct of investigations by the prosecutor	409	(7)
Pre-trial proceedings	416	(2)
Trial Proceedings
Case presentation	418	(3)
Rules of evidence	421	(4)
Control of proceedings	425	(1)
Deliberations	425	(2)
Sentencing	427	(2)
Reparation or compensation to victims	429	(1)
Appellate and Review Proceedings
General	430	(2)
Appeals against interlocutory decisions	432	(1)
Appeals against judgment or sentence	433	(1)
Review of judgment or sentence	434	(1)
Review of other final decisions	435	(1)
Enforcement of Sentences
Place of imprisonment	436	(1)
Conditions of detention	436	(1)
Reduction or commutation of sentence and pardon	437	(1)
Supervision of imprisonment	438	(1)
The Specificity of International Trials
The unique traits of international criminal trials	439	(2)
The merits of international criminal justice	441	(1)
The main problems of international criminal proceedings	442	(3)
The Outlook for International Criminal Justice	445	(14)
The importance of reacting to widespread atrocities	445	(1)
Current trends in the reaction to widespread atrocities	446	(4)
Resorting to improved Truth and Reconciliation Commissions	450	(2)
Enhancing the role of national courts	452	(3)
National criminal judges and international courts	455	(1)
Using mixed criminal courts and tribunals for international crimes	456	(1)
Some tentative conclusions: the need to work for criminal justice on various fronts	457	(2)
Index	459