What is international criminal law?

International criminal law (ICL) is a body of public international law which ascribes criminal responsibility to individuals. Public international law (PIL) governs the relationships, rights and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for the violation of those prohibitions imposed by states. International criminal law comprises elements of both PIL and criminal law, in that its sources are those of international law while its consequences are penal sanctions imposed on individuals. For a detailed discussion on international criminal justice and the ICC, please see the information sheets entitled, “International Criminal Court”, “An introduction to International Crimes” and “The Global ‘System’ of International Criminal Justice”.

Sources of ICL
As a subset of international law, ICL’s sources are the same as those that comprise international law. The classical enumeration of those sources is in Article 38 (1) of the 1946 Statute of the International Court of Justice and comprises international conventions, customary international law, general principles of law, and as a subsidiary measure, judicial decisions and the most highly qualified legal writings. More concretely, the crimes which ICL covers are derived from international humanitarian law, international human rights law and elements of domestic criminal law.

 International crimes

1. Genocide
   The Convention on the Prevention and Punishment of the Crime of Genocide (or “Genocide Convention”) came into force in 1948. The crime of genocide is defined in Article II of the Genocide Convention and Article 6 of the Rome Statute of the International Criminal Court (ICC) as consisting of five specific acts which are committed with dolus specialis or special intent to destroy in whole or in part a national, ethnic, racial or religious group as such.The five acts include: killing members of the group; causing serious bodily or mental harm; imposing conditions on the group calculated to destroy it; preventing births within the group; and forcibly transferring children from the group to another group.The acts can be committed in times of peace or armed conflict, as there is no requirement for a link to an armed conflict.The first conviction by an international tribunal for the crime of  genocide was in the case of Jean Paul Akayesu, the mayor of the Rwandan town of Taba. In a landmark ruling, the International Criminal Tribunal for Rwanda convicted Akayesu of genocide and crimes against humanity. Several other accused were convicted of genocide in Rwanda by the same tribunal. Other tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the Cambodia tribunal, have also convicted individuals for genocide. A major criticism levelled against the definition of the crime of genocide is that it is too narrow and excludes groups such as political or cultural groups.
2. Crimes against humanity
   Crimes against humanity (CAH) are particularly odious offences, in that they constitute a serious attack on human dignity or a grave humiliation or degradation of one or more human beings. Similar to the crime of genocide, CAH do not need to be linked to an armed conflict and can also occur in peacetime. According to Article 7 (1) of the Rome Statute, CAH have two layers: the first involves the acts committed, which include murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, persecution, enforced disappearance, apartheid and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health.The second layer, known as the “chapeau element”, requires that these acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.The Rome Statute goes on to explain that an “attack directed against any civilian population” means a course of conduct involving the multiple commission of the prohibited acts, and done in pursuit or in furtherance of a state or organisational policy to commit such an attack. Such a plan or policy does not have to be clearly stated or officially agreed upon, but can rather be understood from looking at all the circumstances that existed at the time the offence was committed. Unlike genocide, CAH do not have to single out a particular group. Instead, any civilian population, irrespective of its affiliation or identity, can be the victim of the attack. In addition, unlike the crime of genocide, it is not necessary to prove that there is an overall specific intent. It suffices for there to be an intention to commit any of the prohibited acts listed, with the single exception of the act of persecution, which requires special intent to discriminate against persons on specific grounds.
3.  War crimes
   War crimes are derived from the simple realisation that, during war, certain persons have to be protected and certain conduct has to be prohibited. Simply put, not every means of warfare is allowed. A substantial part of the legal framework outlining the conduct of war is contained in the Four Geneva Conventions of 1949 and the Additional Protocols of 1977, and is supplemented by several other conventions regulating the means and the methods of warfare. Article 8 of the Rome Statute defines war crimes as serious violations of the laws and customs applicable in international armed conflict and in armed conflicts not of an international character. As a result, and in contrast to the crime of genocide and CAH, war crimes must in every case take place in the context of an armed conflict. This can either be an international armed conflict, which is the classical state–versus-state conflict, or non-international armed conflict, which involves armed forces fighting against organised armed groups, or organised armed groups fighting against one another.Lastly, it may involve a combination of both international and non-international armed conflicts occurring concurrently.In addition, for an non-international armed conflict to be considered as such, a certain threshold of intensity in the fighting is needed, namely, “protracted armed violence”, a situation that is deemed to extend beyond sporadic violence.Article 8 of the Rome Statute draws a distinction between war crimes committed in international and non-international armed conflicts, and provides a comprehensive list of acts that constitute war crimes in either scenario. To summarise these provisions broadly, the following acts would amount to war crimes:
   a) war crimes against persons requiring particular protection – committing acts such as murder, mutilation, cruel treatment and torture, taking hostages, internationally directing attacks against a civilian population, recruiting children under the age of 15 years to participate in armed conflict, etc.;
   b) war crimes against those providing humanitarian assistance and peacekeeping operations;
   c) war crimes against property and other rights – this would include acts such as, intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
   d) using prohibited methods of warfare – this would include acts such as starvation, pillaging, rape, sexual slavery, forced pregnancy or any other form of sexual violence; and,
   e) prohibited means of warfare – this would include employing poison or poisoned weapons, asphyxiating, poisonous or other gases, bullets which expand or flatten easily in the human body, among others.For an act to amount to a war crime, there must be a “nexus” or functional linkage between the act in question and the armed conflict. This is known as the contextual element, which requires that the conduct took place in the context of and was associated with an international or non-international armed conflict. Secondly, the perpetrator must have had the intention to commit the act in question and had knowledge of the existence of the armed conflict. This is known as the mental element which requires the intention to commit the individual act and the knowledge of the contextual element. In contrast to CAH, war crimes can be committed against combatants or non-combatants (the civilian population).

Key takeaways:

• International criminal law is best understood as an attempt by the community of states to address the most serious crimes of international concern.
• ICL addresses crimes that incur individual criminal responsibility under international law, and that include genocide, crimes against humanity and war crimes.
• Genocide requires special intent to destroy a group, based on national, ethnic, racial or religious grounds, through the commission of specific acts. No nexus or connection to an armed conflict is required.
• Crimes against humanity are particularly odious offences constituting a serious attack on human dignity. They are not isolated or sporadic events but are rather part of a governmental policy or a widespread practice of atrocities tolerated or condoned by a government or de facto authority. No nexus to armed conflict is required.
• War crimes are serious violations of the laws and customs applicable in international armed conflict and armed conflicts not of an international character. Article 8 of the Rome Statute categorises war crimes based on the type of conflict (i.e., international or non-international). It includes acts, such as attacks against persons, objects, using prohibited means or methods of warfare.

Resources

1. ICRC – International Humanitarian Law Databases (EN) (AR)
2. The Rome Statute of the International Criminal Court (EN) (AR)