INTERNATIONAL AND TRANSNATIONAL

CRIMINAL LAW
 ASPEN CASEBOOK SERIES

INTERNATIONAL AND
TRANSNATIONAL CRIMINAL LAW

Second Edition

David Luban
University Professor
Georgetown University Law Center

Julie R. O’Sullivan
Professor of Law
Georgetown University Law Center

David P. Stewart
Professor from Practice
Georgetown University Law Center
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1234567890

ISBN 978-1-4548-2834-1 (Casebound)

ISBN 978-1-4548-4827-1 (Loose-Leaf)

Library of Congress Cataloging-in-Publication Data

Luban, David, 1949- author.

International and transnational criminal law / David Luban, University Professor,
Georgetown University Law Center, Julie R. O’Sullivan, Professor of Law,
Georgetown University Law Center, David P. Stewart, Visiting Professor of Law,
Georgetown University Law Center. — Second edition.
p. cm. — (Aspen Casebook Series)
Includes bibliographical references and index.
ISBN 978-1-4548-2834-1 (alk. paper)
1. Criminal law. 2. Criminal jurisdiction. 3. International crimes. 4. International
criminal courts. I. O’Sullivan, Julie R., 1959- author. II. Stewart, David P. author.
III. Title.

K5015.4.L83 2014
345 — dc23 2014017677
 CHAPTER
1
The Idea of International Criminal Law

This chapter has a simple and straightforward goal: to introduce the subject of the
book and to sketch the background you need to make sense of the materials that
follow. First, we explain what the study of international criminal law encompasses.
Second, we provide a preliminary sketch of what gives criminal law its unique char-
acteristics. In the next chapter, we offer a second preliminary sketch, this one of the
basics of international law.
Each of these subjects is a large one, and the materials in these two chapters offer
no more than the ABCs of the subject. As the book proceeds, we flesh out each of
these sketches with more detail.

A. WHAT IS INTERNATIONAL CRIMINAL LAW?

At bottom, international criminal law is just what the name suggests: It consists of
criminal law applied across national borders. But this encompasses several different
legal regimes.

1. Transnational Criminal Law

The first category of international criminal law, which we call transnational criminal
law, consists of the part of any nation’s domestic criminal law that ‘‘regulates actions
or events that transcend national frontiers.’’1 The concept is very simple. A state2 such
as the United States has laws against crimes such as bank fraud. If a U.S. national, in
the United States, commits bank fraud against a U.S. bank, no transnational issue
arises, and ordinary domestic criminal law applies. But what if a Canadian, in Canada,
commits fraud against a U.S. bank, perhaps by hacking into its computers? In that
case, the perpetrator has presumably violated Canadian law — but what of U.S. law?

1. Phillip C. Jessup, Transnational Law 2 (1956).

2. As explained in more detail in the next chapter, the word state in international law refers to nations
or countries.

3
4 1. The Idea of International Criminal Law

Can the U.S. legal system reach the Canadian’s conduct in Canada? That is a question
of transnational criminal law. We will study many such questions. For example:

1. Where was the crime ‘‘committed’’ — where the hacker did his keyboard work
(Canada) or where the compromised computer system was (the United States)?
2. If the crime is deemed to have been committed in Canada, does the U.S. bank
fraud statute regulate conduct committed in Canada? Do U.S. courts have juris-
diction over such conduct?
3. What, if anything, can U.S. police do to arrest the Canadian suspect?
4. If Canadian police arrest the suspect, can he be extradited to the United States?
5. Do U.S. constitutional rights (such as the right against compelled self-incrimination)
apply to the Canadian in Canada?
6. Does it matter whether his conduct is also a crime under Canadian law, and, if it
does, which nation’s legal system gets priority?
7. What are the mechanics of evidence gathering in a foreign country?
8. What should Canada do if the punishment the suspect faces in the United States
would be grossly excessive (or, in the case of the death penalty, outlawed) under
Canadian law?

These are only some of the questions that arise.

In an era of globalization, transnational crimes — that is, crimes committed across
borders — have proliferated. Organized crime operates with the sophistication and
cosmopolitanism of vast multinational corporations — and some multinational cor-
porations engage in crime. Vast underworld networks exist for trafficking in narcotics,
human beings, weapons, stolen goods, diamonds, nuclear contraband, international
terror, and laundered money. Identity theft, within a matter of minutes, can put your
credit card information in the hands of a hacker half a world away. Much of trans-
national criminal law has evolved from the decades of efforts by national governments
to secure international cooperation and assistance in law enforcement against crimes
committed by foreigners. States are jealous of their own borders, prerogatives, and
jurisdictions. But, step by step and agreement by agreement, an infrastructure of
international legal assistance has developed, and these institutions have spurred
states’ efforts to ‘‘globalize’’ their own criminal law.

2. International Crimes

The second great division of international criminal law might be called international
criminal law in the strict sense — henceforth, we will simply say ‘‘international criminal
law’’ for short, as distinguished from transnational criminal law. International
criminal law refers to wrongs that are criminalized under international law, whether
or not they are also criminalized in states’ domestic laws. This category of crimes is
small and to date consists only of the ‘‘core crimes’’: crimes against humanity, geno-
cide, war crimes, and (as defined in 2010) the crime of aggression. These are the
‘‘core crimes’’ because they generally consist of mass atrocities that show up, glowing
in infamy, on the radar of world politics. Often, these crimes cannot effectively be
prosecuted or repressed by the territorial state where they are committed, either
because the state itself has perpetrated them or because its government has collapsed
in civil war, in anarchy, or through foreign conquest. These crimes may be tried either
by international tribunals or, under some jurisdictional theories, by hybrid (mixed
international and domestic) or purely domestic tribunals.
B. What is Criminal Law? 5

3. Treaty-Based Domestic Crimes

A third category of international criminal law, overlapping with the first two, consists
of activity declared criminal by international treaties but enforced under the domestic
law of states that join the treaties. Treaties sometimes criminalize conduct because
states recognize that it is international in character and can be attacked only through
international cooperation. Such conduct includes air piracy and hijacking, counter-
feiting, terrorism, human trafficking, and narcotics trafficking. We have already men-
tioned that many of these are transnational crimes: They violate some states’ domestic
criminal laws, but they must be enforced across borders. But others were criminalized
domestically only after the international community agreed on treaties to suppress
them.
Typically, these treaties require their parties to enact domestic criminal laws against
the activities, to grant themselves jurisdiction to try such crimes even when they are
committed abroad, and to participate in international enforcement by agreeing to
either extradite or prosecute suspected criminals in their custody. As the name sug-
gests, treaty-based domestic crimes blend properties of transnational and
international crimes. Like the ‘‘core crimes,’’ treaty-based crimes are objects of
international concern, and law enforcement efforts are coordinated through
international law and mechanisms. Like transnational crimes, statutory prohibitions
of these acts are part of domestic law, and domestic rather than international tribu-
nals enforce the laws. Although the distinction is somewhat artificial, we classify them
separately from the other two categories of international criminal law because the
treaties that drive the enforcement efforts are entirely international, but the enforce-
ment efforts themselves are conducted under the auspices of national law.
According to one noted authority, ‘‘international crimes’’ — encompassing both
the international and treaty-based domestic categories described here — consist of
conduct prohibited by multilateral treaties covering 22 subjects: (1) aggression,
(2) war crimes, (3) unlawful use or emplacement of weapons, (4) crimes against
humanity, (5) genocide, (6) racial discrimination and apartheid, (7) slavery and related
crimes, (8) torture, (9) unlawful human experimentation, (10) piracy, (11) aircraft
hijacking, (12) threat and use of force against internationally protected persons
(usually, these are government officials), (13) taking of civilian hostages, (14) drug
offenses, (15) international traffic in obscene publications, (16) destruction or theft
of national treasures, (17) environmental protection, (18) unlawful use of the mails,
(19) interference with submarine cables, (20) falsification and counterfeiting,
(21) bribery of foreign public officials, and (22) theft of nuclear materials.3 Today,
many would add international terrorism, in its various manifestations, to the list.

B. WHAT IS CRIMINAL LAW?

To understand what is distinctive in international criminal law, we must begin by

understanding the nature of criminal law itself. The excerpt following is one of
the best-known attempts to define the specific character of criminal law.4

3. M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International
Criminal Court 28-29 (1987).
4. Another valuable attempt to define the nature of criminal law and international criminal law is
Edward M. Wise, International Crimes and Domestic Criminal Law, 38 DePaul L. Rev. 923 (1989).
6 1. The Idea of International Criminal Law

HENRY M. HART, JR., THE AIMS OF THE CRIMINAL LAW

23 Law & Contemp. Probs. 401 (1958)

. . . What do we mean by ‘‘crime’’ and ‘‘criminal’’? Or, put more accurately, what
should we understand to be ‘‘the method of the criminal law,’’ the use of which is in
question? . . .
1. The method operates by means of directions, or commands, formulated in
general terms, telling people what they must or must not do. Mostly, the commands
of the criminal law are ‘‘must-nots,’’ or prohibitions, which can be satisfied by inac-
tion. ‘‘Do not murder, rape, or rob.’’ But some of them are ‘‘musts,’’ or affirmative
requirements, which can be satisfied only by taking a specifically, or relatively specif-
ically, described kind of action. ‘‘Support your . . . children,’’ and ‘‘File your income
tax return.’’
2. The commands are taken as valid and binding upon all those who fall within their
terms when the time comes for complying with them, whether or not they have been
formulated in advance in a single authoritative set of words. They speak to members
of the community, in other words, in the community’s behalf, with all the power and
prestige of the community behind them.
3. The commands are subject to one or more sanctions for disobedience which the
community is prepared to enforce.
Thus far, it will be noticed, nothing has been said about the criminal law which is
not true also of a large part of the noncriminal, or civil, law. The law of torts, the law of
contracts, and almost every other branch of private law that can be mentioned oper-
ate, too, with general directions prohibiting or requiring described types of conduct,
and the community’s tribunals enforce these commands. What, then, is distinctive
about the method of the criminal law?
Can crimes be distinguished from civil wrongs on the ground that they constitute
injuries to society generally which society is interested in preventing? The difficulty is
that society is interested also in the due fulfillment of contracts and the avoidance of
traffic accidents and most of the other stuff of civil litigation. . . . Does the distinction
lie in the fact that proceedings to enforce the criminal law are instituted by public
officials rather than private complainants? The difficulty is that public officers may
also bring many kinds of ‘‘civil’’ enforcement actions — or an injunction, for the
recovery of a ‘‘civil’’ penalty, or even for the detention of the defendant by public
authority.5 Is the distinction, then, in the peculiar character of what is done to people
who are adjudged to be criminals? The difficulty is that, with the possible exception of
death, exactly the same kinds of unpleasant consequences, objectively considered,
can be and are visited upon unsuccessful defendants in civil proceedings.
If one were to judge from the notions apparently underlying many judicial opin-
ions, and the overt language even of some of them, the solution of the puzzle is simply
that a crime is anything which is called a crime, and a criminal penalty is simply the
penalty provided for doing anything which has been given that name. So vacant a
concept is a betrayal of intellectual bankruptcy. . . . Moreover, it is false to popular
understanding, and false also to the understanding embodied in existing constitu-
tions. By implicit assumptions that are more impressive than any explicit assertions,
these constitutions proclaim that a conviction for crime is a distinctive and serious
matter — something, and not a nothing. What is that something?

5. [EDS.’ NOTE:] Moreover, in many countries, crime victims are permitted to initiate criminal
prosecutions.
B. What is Criminal Law? 7

4. What distinguishes a criminal from a civil sanction and all that distinguishes it, it
is ventured, is the judgment of community condemnation which accompanies and
justifies its imposition. As Professor Gardner wrote not long ago, in a distinct but
cognate connection:

The essence of punishment for moral delinquency is in the criminal conviction itself.
One may lose more money on the stock market than in a court-room; a prisoner of war
camp may well provide a harsher environment than a state prison; death on the field of
battle has the same physical characteristics as death by sentence of law. It is the expres-
sion of the community’s hatred, fear, or contempt for the convict which alone charac-
terizes physical hardship as punishment.

If this is what a ‘‘criminal’’ penalty is, then we can say readily enough what a
‘‘crime’’ is. It is not simply anything which a legislature chooses to call a ‘‘crime.’’
It is not simply antisocial conduct which public officers are given a responsibility to
suppress. It is not simply any conduct to which a legislature chooses to attach a
‘‘criminal’’ penalty. It is conduct which, if duly shown to have taken place, will
incur a formal and solemn pronouncement of the moral condemnation of the
community.
5. The method of the criminal law, of course, involves something more than the
threat (and, on due occasion, the expression) of community condemnation of anti-
social conduct. It involves, in addition, the threat (and, on due occasion, the impo-
sition) of unpleasant physical consequences, commonly called punishment. But if
Professor Gardner is right, these added consequences take their character as punish-
ment from the condemnation which precedes them and serves as the warrant for their
infliction. Indeed, the condemnation plus the added consequences may well be con-
sidered, compendiously, as constituting the punishment. Otherwise, it would be
necessary to think of a convicted criminal as going unpunished if the imposition
or execution of his sentence is suspended. . . .

NOTES AND QUESTIONS

1. Throughout this excerpt, Hart refers to ‘‘the community’’: the community’s

sense of right and wrong, standards that speak to members of the community, the
conditions of community life and the interdependencies of the people who are living
in the community, duty to the community, community attitudes and needs, and so on.
Is there a single, cohesive international ‘‘community’’ for these purposes? On what
basis can one nation’s criminal law be justly applied across borders, to foreigners
living in a foreign country? That is, if the criminal law reflects a single community’s
moral sense and depends on shared knowledge of that moral sense and widespread
knowledge of the law, how can ‘‘the method of criminal law’’ apply transnationally in
very different communities?
2. Malum in se and malum prohibitum. Elsewhere in his essay, Hart emphasizes that
if criminal law is to work, people must know of its existence and content:

If the legislature does a sound job of reflecting community attitudes and needs, actual
knowledge of the wrongfulness of the prohibited conduct will usually exist. Thus, almost
everyone is aware that murder and forcible rape and the obvious forms of theft are
wrong. But in any event, knowledge of wrongfulness can fairly be assumed. For any
D. The Need for Safeguards in the Criminal Law 15

where the line should be drawn to realize the optimal level of protection, but the line
must be drawn somewhere. Thus, judgments of criminal responsibility necessarily
involve a weighing of competing interests that judgments of moral responsibility
do not.

2. The Basic Protections in Criminal Law and Procedure

Whether the defining feature of criminal law is punishment or moral condemnation,

everyone recognizes that criminal condemnation is perhaps the most serious action
the law can take. As a result, in most nations, criminal law and procedure must
conform to especially stringent requirements. Among those recognized in U.S.
domestic law as well as in contemporary international criminal law are the following.

1. Principle of Legality: No one can be criminally convicted for conduct that is not
unlawful; and no one can be punished except as the law specifies. The Principle of
Legality actually contains two sub-principles, which are often stated in two Latin
maxims:
(A) nulla crimen sine lege (no crime without law) and
(B) nulla poena sine lege (no punishment without law).
These two versions of the Principle of Legality, although similar, are not
identical. The first principle has to do with what kind of conduct can result in
criminal conviction. It insists that only conduct that the law says is criminal can
result in criminal conviction. Typically, that means that conduct, no matter how
heinous, cannot lead to criminal conviction unless a criminal statute, specifying
both the actus reus and the mens rea of the offense, prohibits it. The second
principle focuses on punishment, not on conduct. It says that no punishment
can be inflicted unless the law provides for it. To see why the second principle
differs from the first, imagine someone convicted of a crime for which the law
provides punishment of up to a year in prison. If the judge sentences the offender
to two years, the sentence violates nulla poena sine lege (because the punishment is
greater than what the law provides) but not nulla crimen sine lege (because the
conviction is lawful). Both principles are essential parts of the Principle of Legal-
ity. As we will see, the Principle of Legality plays an important role in international
criminal law, because critics as well as defendants often complain that laws and
courts created in the aftermath of atrocities violate the Principle of Legality.
2. Principle of Fair Notice: No one can be condemned for a crime without fair notice
that the conduct is criminal.
3. Principle of Nonretroactivity: No criminal law can be applied retroactively.
Nonretroactivity can be regarded as a corollary to the Principle of Legality and
the Principle of Fair Notice. If the criminal statute is retroactive, then at the time
the ‘‘crime’’ was committed there was no law against it and no notice that it was
criminal. A conviction would therefore violate both the Principle of Legality and
the Principle of Fair Notice. The Principle of Nonretroactivity is embodied in the
U.S. Constitution in the ban on ex post facto laws in Article I, Section 9, Clause 3.
4. Principle of Lenity: This principle is also known as strict construction of the criminal
law. Criminal statutes must always be narrowly construed, and if a statute is ambig-
uous, it must be construed in the most lenient way, that is, in the way most
favorable for the defendant. ‘‘Principle of Lenity’’ is U.S. terminology; in many
other legal systems, the principle is referred to as in dubio pro reo (‘‘when in doubt,
for the accused’’), or simply as strict construction of the criminal law.
16 1. The Idea of International Criminal Law

5. The presumption of innocence.

6. The requirement that guilt must be established beyond a reasonable doubt.
7. The basic procedural rights:
(A) The right to a (i) speedy (ii) public trial before (iii) an impartial tribunal that
(iv) bases its decision solely on the evidence offered at trial.
(B) The right to offer a defense.
(C) The right to be informed of the charges, in a language that the accused
person understands, through a written indictment that specifies the charges
and the conduct charged.
(D) The right of the accused to confront the witnesses against him.
(E) The right of the accused to have compulsory process for obtaining witnesses
in his favor.
(F) The right to counsel and the privilege against self-incrimination.
(G) The ban on double jeopardy — that is, repeated prosecution for the same
offense. In international legal standards, the ban on double jeopardy is called
ne bis in idem (literally, ‘‘not twice for the same’’).
All of these are embodied in American constitutional law, mostly in the Fifth
and Sixth Amendments. All are embodied explicitly in the Statute of the
International Criminal Court. Furthermore, all these rights are guaranteed in
Articles 14 and 15 of the International Covenant on Civil and Political Rights,
one of the basic treaties concerning international human rights (which has 160
states parties, including the United States).
Also important are basic principles governing the prosecutor’s role. However,
unlike the other rights listed here, these are not firmly settled in international law:
8. (A) The prosecutor must (in the words of U.S. ethical standards), seek justice, not
simply victory.
(B) The prosecutor must not initiate or continue proceedings against someone
without probable cause.
Finally, as alluded to in our earlier discussion of Kant, criminal guilt must be
personal:
9. Principle of Personal Responsibility: No one should be convicted of a crime unless she
bears personal responsibility for that crime, either as a principal or as an
accessory. Guilt by mere association is unjust.
Notice that the Principle of Personal Responsibility does not require the
offender to have committed the crime himself. He may have hired someone
else to do it, or tricked someone into doing it, or assisted someone else in
doing it, or condoned it as a superior officer. What matters is that, directly or
indirectly, he bears personal responsibility for the crime in some way.
It also deserves mention that personal responsibility may, but need not,
include legal entities such as corporations. In U.S. law, for example, corporations
may be convicted of crimes if their employees commit those crimes in the actual
or apparent scope of their duties with the intention to benefit the corporation.
Corporations act only through their agents, and so convicting the corporation for
the crimes of its agents is a form of personal responsibility for the corporate
‘‘person.’’ But it would violate the Principle of Personal Responsibility to convict
one employee of the corporation for a crime with which she had no connection at
all, merely because the perpetrator was also an employee. (Many legal systems, it
should be noted, do not have the concept of corporate criminality.)

All of these principles and requirements have one basic purpose: to safeguard
against the danger of wrongful criminal conviction.
D. The Need for Safeguards in the Criminal Law 13

Convention on Human Rights’ prohibition on inhuman or degrading punishment.

This ruling effectively requires European Union member states to abolish life without
parole.16 In addition to reflecting different philosophies of punishment, this striking
discrepancy between these approaches foreshadows some of the difficulties that
international tribunals face in determining sentencing schemes that seem just to
all the participating nations. We take up this subject in Chapter 4.
Do you see relevant differences between domestic criminal justice systems and the
international legal community? Do the arguments for condemnation (not necessarily
punishment) have more or less traction with regard to international crimes? What
about Beccarian concerns about prevention and deterrence, or Kantian notions of
retribution? Compare the U.S. sentencing statutes with the following excerpt from an
opinion of the International Criminal Tribunal for the former Yugoslavia (ICTY).

PROSECUTOR v. BLAŠKIĆ
Case No. IT-95-14-A, Judgment ( July 29, 2004)

678. . . . The Appeals Chamber recalls that Article 24(1) of the Statute [creating the
ICTY] limits the penalty imposed by the Trial Chamber to imprisonment. In imposing
a sentence, the International Tribunal has recognized the following purposes to be
considered: (i) individual and general deterrence concerning the accused and, in
particular, commanders in similar situations in the future; (ii) individual and general
affirmative prevention aimed at influencing the legal awareness of the accused, the
victims, their relatives, the witnesses, and the general public in order to reassure them
that the legal system is being implemented and enforced; (iii) retribution; (iv) public
reprobation and stigmatisation by the international community; and (v) rehabilitation.

NOTES AND QUESTIONS

1. The phrase ‘‘individual and general affirmative prevention’’ in Blas˘kic´ derives

from the German theory of positive general prevention.
2. What, if anything, is the difference between retribution (aim (iii)) and ‘‘public
reprobation and stigmatisation’’ (aim (iv))? Doesn’t retribution always stigmatize the
criminal? Are there forms of stigmatizing people that aren’t retribution?
3. Is rehabilitation a legitimate goal of punishment for perpetrators of mass atroc-
ities? Is it consistent with public reprobation and stigmatization?

D. THE NEED FOR SAFEGUARDS IN THE CRIMINAL LAW

So far, we have introduced basic concepts of criminal law and punishment, linking
both to the moral blameworthiness of wrongdoers. As the following excerpt indicates,
however, this leaves out an equally important part of the picture: the need for safe-
guards against wrongful conviction and punishment.

16. Vinter and Others v. The United Kingdom, App nos. 66069/09, 130/10 and 3896/10 (ECHR,
9 July 2013).
E. Is International Criminal Law Different? The Eichmann Trial 17

E. IS INTERNATIONAL CRIMINAL LAW DIFFERENT?

THE EICHMANN TRIAL

In our initial excerpt, Hart — like most criminal lawyers — is evidently thinking exclu-
sively of domestic criminal law, that is, criminal law within a single national community.
The questions following the excerpt suggested that standard theories of the aims of
criminal law, such as Hart’s, may have a tougher time accounting for transnational
criminal law, that is, national law applied across borders in other countries. The same
may be true of international criminal law, that is, the law governing the basic
international crimes of genocide, crimes against humanity, and war crimes.
Here the difficulty is perhaps more fundamental than the questions of jurisdiction
and fair notice across borders. It arises from the fact that the aims of trying perpe-
trators of the great crimes — notably, national leaders — are anything but routine.
Such trials always follow moments of cataclysm: wars and civil wars, bloody ethnic or
religious struggles, political upheavals, revolutions, or other changes of basic political
systems. Instead of being a normal part of the daily functioning of government,
international criminal trials typically occur after governments have fallen or been
radically altered.
Such trials, then, are part of transitional justice — the whole range of legal issues that
arise when one form of government replaces another. Where ordinary criminal law is
a product of continuity, international criminal law in the strict sense is a product of
discontinuity, of upheaval and political rupture. Inevitably, then, the trials take on
political overtones; and sometimes the requirements of politics and those of criminal
law are in tension with each other. Politics is broad and partial; criminal law, as we
have seen, is supposed to be narrow and impartial.
Furthermore, there is often a fundamental difference between the perpetrators of
atrocity crimes and ‘‘ordinary’’ criminals. Ordinary crimes are deviations from the
social order, but mass atrocities are often organized by the leaders of a regime, and
the perpetrators are not deviants but conformists. The political philosopher Hannah
Arendt — excerpted below — coined the phrase ‘‘banality of evil’’ to describe every-
day, obedient conformists who commit horrible crimes without malicious motives
beyond the desire to do what they are told. Mark Drumbl, in an important study of
legal punishment for mass atrocities, emphasizes this difference and argues that it
may remove one of the most important reasons for punishment: the incapacitation of
wrongdoers.17
Finally, in the aftermath of a cataclysm, the desire to give victims a voice and allow
them to seek whatever closure remains to them by condemning their persecutors
seems especially urgent, more so than in everyday domestic criminal enforcement
(where it is also important, of course). This, too, can create tensions with the require-
ments of justice for the accused. As two commentators observe, this tension derives
from the close connection between international criminal law and international
human rights law. After all, the mass atrocities that form the subject matter of
international criminal law are invariably major human rights violations. But, the
two commentators note:

In several fundamental ways, however, the working presumptions of human rights law
and criminal law present mirror images of each other. In a criminal proceeding, the

17. Mark A. Drumbl, Atrocity, Punishment, and International Law (2007).

18 1. The Idea of International Criminal Law

focus is on the defendant and the burden is on the prosecuting authority to prove that
the individual before the court has committed a crime. Ambiguity about that assertion is
to be construed in favor of the criminal defendant, and the trier of fact is charged with
determining what the defendant did and what his mental state was toward the acts
constituting the crime. In human rights proceedings, by contrast, the focus is on the
harms that have befallen the victim and on the human rights norm that has been vio-
lated. One consequence of this focus is that the substantive norms of international
human rights law are generally broadly interpreted to ensure that harms are recognized
and remedied, and that, over time, there is progressively greater realization of respect for
human dignity and freedom. The analogous rules of domestic criminal law, by contrast,
are supposed to be strictly construed in favor of the defendant. And while criminal law
tends toward the specific and the absolute, human rights law embraces some contingent,
aspirational norms.
The confluence in international criminal law between criminal law principles drawn
from domestic criminal law and the philosophical commitments of international human
rights law sets up two opposing optics with which to adjudicate a violation. Should it be in
the defendant-centered mode of a criminal trial or the victim-oriented style of a human
rights proceeding? Should it hew to the rule of lenity that protects defendants from
unexpected expansions of the law, or should it reflect the aspirational character of
international human rights law? . . . [T]hese conflicting tensions surface in important
ways in the jurisprudence of international criminal law.18

The following excerpts explore these tensions through a case study — the trial of
Adolf Eichmann. Along with the postwar Nuremberg trials, the trial of Eichmann was
the most significant criminal case arising from the Holocaust.
Eichmann (1906-1962) was a Nazi SS lieutenant colonel who was in charge of
rounding up Europe’s Jews and transporting them to death camps. At the end of
World War II he managed to escape to Argentina, where he lived incognito until 1960.
At that time, Israeli agents kidnapped Eichmann on the streets of Buenos Aires and
transported him to Israel to be put on trial. Previous war-crimes trials at Nuremberg
had focused principally on the ‘‘crimes against peace’’ — Germany’s war of aggres-
sion that became World War II — rather than specifically focusing on the Holocaust,
and the Eichmann trial was the first major trial of an individual emphasizing solely the
mass murder of the European Jews. The trial received an enormous amount of pub-
licity. Eichmann was convicted and executed in 1962.
David Ben-Gurion, who was prime minister of Israel at the time, was quite explicit
about the aims of putting Eichmann on trial. He wanted to educate Israelis — many of
them recent immigrants from non-European countries — about the Holocaust. He
also wanted to remind the rest of the world of its horrors, in order to emphasize the
importance and necessity of the state of Israel. Furthermore, although this was not
one of Ben-Gurion’s aims, the trial would prove to be a crucial therapeutic moment
for Holocaust survivors in Israel. Many of them had kept their stories to themselves for
years, and the Eichmann trial provided an opportunity for the survivors to bring their
terrible stories out into the open.
The readings that follow use the Eichmann trial to raise crucial threshold questions
about international criminal law. How does it differ from ‘‘everyday’’ domestic
criminal law? Do trials of the major international crimes have different purposes
from ordinary law enforcement? What are those differences, are they legitimate,

18. Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Com-
mand Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 89-90
(2005).
E. Is International Criminal Law Different? The Eichmann Trial 19

and are they consistent with doing justice to the accused? Are these trials political
trials, and if so, are they political in an objectionable way?

PROSECUTOR v. EICHMANN
Criminal Case No. 40/61, Judgment
Israel, District Court of Jerusalem (1961)

1. Adolf Eichmann has been brought to trial in this Court on charges of unsurpassed
gravity — charges of crimes against the Jewish People, crimes against humanity, and
war crimes. The period of the crimes ascribed to him, and their historical
background, is that of the Hitler regime in Germany and in Europe, and the counts
of the indictment encompass the catastrophe which befell the Jewish People during
that period — a story of bloodshed and suffering which will be remembered to the
end of time.
This is not the first time that the Holocaust has been discussed in court proceed-
ings. It was dealt with extensively at the International Military Tribunal at Nuremberg
during the Trial of the Major War Criminals, and also at several of the trials which
followed; but this time it has occupied the central place in the Court proceedings, and
it is this fact which has distinguished this trial from those which preceded it. Hence
also the trend noticed during and around the trial, to widen its range. The desire was
felt — understandable in itself — to give, within the trial, a comprehensive and
exhaustive historical description of events which occurred during the Holocaust,
and in so doing, to emphasize also the inconceivable feats of heroism performed
by ghetto-fighters, by those who mutinied in the camps, and by Jewish partisans.
How could this happen in the light of day, and why was it just the German people
from which this great evil sprang? Could the Nazis have carried out their evil designs
without the help given them by other peoples in whose midst the Jews dwelt? Would it
have been possible to avert the Holocaust, at least in part, if the Allies had displayed a
greater will to assist the persecuted Jews? Did the Jewish People in the lands of free-
dom do all in its power to rally to the rescue of its brethren and to sound the alarm for
help? What are the psychological and social causes of the group-hatred [sic] which is
known as anti-Semitism? Can this ancient disease be cured, and by what means? What
is the lesson which the Jews and other nations must draw from all this, as well as every
person in his relationship to others? There are many other questions of various kinds
which cannot even all be listed.
2. In this maze of insistent questions, the path of the Court was and remains clear. It
cannot allow itself to be enticed into provinces which are outside its sphere. The
judicial process has ways of its own, laid down by law, and which do not change,
whatever the subject of the trial may be. Otherwise, the processes of law and of
court procedure are bound to be impaired, whereas they must be adhered to punc-
tiliously, since they are in themselves of considerable social and educational signifi-
cance, and the trial would otherwise resemble a rudderless ship tossed about by the
waves.
It is the purpose of every criminal trial to clarify whether the charges in the pros-
ecution’s indictment against the accused who is on trial are true, and if the accused is
convicted, to mete out due punishment to him. Everything which requires clarifica-
tion in order that these purposes may be achieved, must be determined at the trial,
and everything which is foreign to these purposes must be entirely eliminated from
the court procedure. Not only is any pretension to overstep these limits forbidden to
the court — it would certainly end in complete failure. The court does not have at its
20 1. The Idea of International Criminal Law

disposal the tools required for the investigation of general questions of the kind
referred to above. For example, in connection with the description of the historical
background of the Holocaust, a great amount of material was brought before us in the
form of documents and evidence, collected most painstakingly, and certainly in a
genuine attempt to delineate as complete a picture as possible. Even so, all this
material is but a tiny fraction of all that is extant on this subject. According to our
legal system, the court is by its very nature ‘‘passive,’’ for it does not itself initiate the
bringing of proof before it, as is the custom with an enquiry commission. Accordingly,
its ability to describe general events is inevitably limited. As for questions of principle
which are outside the realm of law, no one has made us judges of them, and therefore
no greater weight is to be attached to our opinion on them than to that of any person
devoting study and thought to these questions. These prefatory remarks do not mean
that we are unaware of the great educational value, implicit in the very holding of this
trial, for those who live in Israel as well as for those beyond the confines of this state.
To the extent that this result has been achieved in the course of the proceedings, it is
to be welcomed. Without a doubt, the testimony given at this trial by survivors of the
Holocaust, who poured out their hearts as they stood in the witness box, will provide
valuable material for research workers and historians, but as far as this Court is
concerned, they are to be regarded as by-products of the trial.

MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW

1-2, 60-62, 65-67 (1997)

We ought to evaluate transitions to democracy with greater attention to the kind of

public discussion they foster concerning the human rights abuse perpetrated by
authoritarian rulers, recently deposed. We should evaluate the prosecution of
these perpetrators in light of how it influences such public deliberations.
To that end, the law’s conventional concerns with deterrence and retribution will
receive lesser emphasis. The rules designed to keep these concerns at center stage will
sometimes need to be compromised. Such compromises are necessary and appropri-
ate, I suggest, in the aftermath of large-scale brutality sponsored by an authoritarian
state [as in the Argentine Dirty War]. At such times, the need for public reckoning
with the question of how such horrific events could have happened is more important
to democratization than the criminal law’s more traditional objectives. This is because
such trials, when effective as public spectacle, stimulate public discussion in ways that
foster the liberal virtues of toleration, moderation, and civil respect. Criminal trials
must be conducted with this pedagogical purpose in mind. . . .
By highlighting official brutality and public complicity, these trials often make
people willing to reassess their foundational beliefs and constitutive commitments,
as few events in political life can do. In the lives of individuals, these trials thus often
become, at very least, an occasion for personal stock-taking. They are ‘‘moments of
truth,’’ in several senses. Specifically, the present moments of transformative oppor-
tunity in the lives of individuals and societies, a potential not lost upon the litigants
themselves. Prosecutors and judges in these cases thus rightly aim to shape collective
memory of horrible events in ways that can be both successful as public spectacle and
consistent with liberal legality. . . .
There is reason to wonder whether justice to the defendant, however heinous his
wrongs, has been compromised when it can be said, as does one Israeli historian, that
‘‘the trial was only a medium, and Eichmann’s role was simply to be there, in the glass
E. Is International Criminal Law Different? The Eichmann Trial 21

booth; the real purpose of the trial was to give voice to the Jewish people, for whom
Israel claimed to speak.’’ Another Israeli scholar adds that ‘‘Eichmann rather swiftly
became peripheral to his own trial, which was deliberately designed to focus more
comprehensively on the Nazi crimes against the Jews.’’ Those initially willing to testify
in his defense were deterred from so doing by threat of prosecution for their own
wartime activities. . . .
The primary limit that liberalism imposes on storytelling in criminal trials is the
principle of personal culpability: the requirement that no defendant be held respon-
sible for the wrongs of others beyond his contemplation or control. This entails a
judicial duty to focus on a very small piece of what most observers will inevitably view as
a much larger puzzle, to delimit judicial attention to that restricted place and period
within which the defendant willfully acted.
Episodes of administrative massacre, however, generally involve many people
acting in coordinated ways over considerable space and time, impeding adherence
to this stricture. Moreover, to tell a compelling story, one that will persuade its
intended audience that it is not unfairly singling out a serviceable scapegoat, the
state (in the person of the prosecutor) must be able to paint the larger tableaux.
Hence the recurrent tension, of which trial participants have often been well aware,
between the needs of persuasive storytelling and the normative requirements of
liberal judgment.
. . . The orchestration of criminal trials for pedagogic purposes — such as the trans-
formation of a society’s collective memory — is not inherently misguided or morally
indefensible. The defensibility of the practice depends on the defensibility of the
lessons being taught. . . .
. . . [A] liberal state may employ a ‘‘show trial’’ for administrative massacre to
display the horrific consequences of the illiberal vices and so to foster among its
citizens the liberal values (including respect for basic individual rights . . .). . . . The
law accomplishes this only when courts and juries themselves respect the law, that is,
when they adhere to legal rules reflecting liberal principles of procedural fairness and
personal culpability as conditions of criminal liability. The most gripping of legal
yarns must hence be classified as a failure if its capacity for public enthrallment is
purchased at the price of violating such strictures.

HANNAH ARENDT, EICHMANN IN JERUSALEM:

A REPORT ON THE BANALITY OF EVIL
5, 286 (rev. ed. 1964)

There is no doubt from the very beginning that it is Judge Landau who sets the tone,
and that he is doing his best, his very best, to prevent this trial from becoming a show
trial under the influence of the prosecutor’s love of showmanship. . . . Clearly, this
courtroom is not a bad place for the show trial David Ben-Gurion, Prime Minister of
Israel, had in mind when he decided to have Eichmann kidnapped in Argentina and
brought to the District Court of Jerusalem to stand trial for his role in the ‘‘final
solution of the Jewish question.’’ . . . [I]n the courtroom [Ben-Gurion] speaks with
the voice of Gideon Hausner, the Attorney General, who, representing the govern-
ment, does his best, his very best, to obey his master. And if, fortunately, his best often
turns out not to be good enough, the reason is that the trial is presided over by
someone who serves Justice as faithfully as Mr. Hausner serves the State of Israel. . . .
Justice insists on the importance of Adolf Eichmann, son of Karl Adolf Eichmann, the
22 1. The Idea of International Criminal Law

man in the glass booth built for his protection: medium-sized, slender, middle-aged,
with receding hair, ill-fitting teeth, and nearsighted eyes, who throughout the trial
keeps craning his scraggy neck toward the bench (not once does he face the audi-
ence), and who desperately and for the most part successfully maintains his self-
control despite the nervous tic to which his mouth must have become subject long
before this trial started. On trial are his deeds, not the sufferings of the Jews, not the
German people or mankind, not even anti-Semitism and racism. . . .
It may be argued that all the general questions we involuntarily raise as soon as we
begin to speak of these matters — why did it have to be the Germans? why did it have
to be the Jews? what is the nature of totalitarian rule? — are far more important than
the question of the kind of crime for which a man is being tried, and the nature of the
defendant upon whom justice must be pronounced; more important, too, than the
question of how well our present system of justice is capable of dealing with this special
type of crime and criminal. . . . It can be held that the issue is no longer a particular
human being, a single distinct individual in the dock. . . . All this has often been
argued. . . . If the defendant is taken as a symbol and the trial as a pretext to bring
up matters which are apparently more interesting than the guilt or innocence of one
person, then consistency demands that we bow to the assertion made by Eichmann and
his lawyer: that he was brought to book because a scapegoat was needed. . . .
I need hardly say that I would never have gone to Jerusalem if I had shared these
views. I held and hold the opinion that this trial had to take place in the interests of
justice and nothing else.

NOTES AND QUESTIONS

1. The Jerusalem court and Hannah Arendt both argue that the sole legitimate aim
of a criminal trial is to determine the guilt or innocence of the defendant. In contrast,
Mark Osiel contends that determining guilt or innocence after mass atrocities, where
many people participate, requires examining a context that is far wider than the
defendant’s own actions. Osiel also defends the legitimacy of framing trials with
political goals in mind. Who is right? Or is there some way to reconcile the two
positions?
2. Osiel highlights a recurrent dilemma facing prosecutors in cases of state-spon-
sored or organization-sponsored atrocities. The prosecutor may focus solely and nar-
rowly on the deeds of the accused and not on other atrocities in which the accused
played no direct role — but at the cost of misunderstanding the humanitarian catas-
trophe in which the accused played a part. Alternatively, the prosecutor can try to
‘‘paint with a broad brush’’ to make the entire situation comprehensible — but at the
cost of introducing legal irrelevancies. How should prosecutors resolve this dilemma?
In the United States, the Federal Rules of Evidence prohibit the introduction of
irrelevant evidence, where Rule 401 defines evidence as relevant if ‘‘it has any ten-
dency to make a fact more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.’’ Furthermore, even relevant
evidence ‘‘may be excluded if its probative value is substantially outweighed by the
danger of one of the following: unfair prejudice, confusion of the issues, or mislead-
ing the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.’’19

19. Fed. R. Evid. 403.

E. Is International Criminal Law Different? The Eichmann Trial 23

In the Eichmann trial, the prosecution introduced a great deal of testimony by

Holocaust survivors that would have failed these tests, because the events to which
they testified either had nothing directly to do with Eichmann, or could amply be
proven without any recourse to their testimony. As Prosecutor Gideon Hausner
explained, if convicting Eichmann had been his only goal, ‘‘it was obviously enough
to let the archives speak; a fraction of them would have sufficed to get Eichmann
sentenced ten times over. . . . I knew we needed more than a conviction; we needed a
living record of a gigantic human and national disaster.’’20 Hausner explained that
the intended audience was both the younger generation of Israelis, with ‘‘no real
knowledge, and therefore no appreciation, of the way in which their own flesh and
blood had perished,’’ and the world at large, ‘‘which had so lightly and happily
forgotten the horrors that occurred before its eyes, to such a degree that it even
begrudged us the trial of the perpetrator.’’21
Commentator Lawrence Douglas describes Hausner’s goal as follows:

The act of creating an opportunity for the public sharing of the narratives of the survi-
vors, the proxies of the dead, was itself a way of doing justice. Hausner’s reflections on the
strategy of the prosecution thus reveal a remarkable reversal of legal priority: instead of
the testimony serving as a means of proving the state’s case, Hausner asks one to imagine
the trial itself as a means of offering public testimonials. No doubt Hausner would
vigorously resist the force of this observation, arguing that the individual testimonies
served to clarify the nature and meaning of the defendant’s actions. Still, the juridical
value of the testimony can be understood as largely a by-product of a process prompted
by a radical theory of the trial. The trial was a vehicle of the stories of survivors.22

Douglas adds:

For Hausner, . . . the magnitude of the crimes, their unprecedented nature, the scars on
the survivors created the need to reimagine the legal form; the court, by contrast,
reached the opposite conclusion. It was the very magnitude of the horrors that framed
the futility of attempting to comprehend them. . . . [T]he attempt to do so was an act of
overreaching that, in the court’s mind, would erode the legitimacy of the . . . institution
making such pronouncements. To attempt fully to represent and explain the Holocaust
is to exit the world of legitimate juridical function and to risk spectacular failure.23

Two excerpts from the Eichmann trial illustrate the tension. Both involved the testi-
mony of Holocaust survivors who were also literary figures. The first was the testimony
of Abba Kovner, a celebrated resistance fighter and one of Israel’s best-known poets.
Although Kovner’s testimony touched on Eichmann at a few points, most of it con-
sisted of stories, some inspiring and some heartbreaking, of the resistance fighters of
the Vilna ghetto and their fates. After Kovner concluded his testimony, the court
admonished the prosecutor:

Presiding Judge: Mr. Hausner, we have heard shocking things here, in the language of a
poet, but I maintain that in many parts of this evidence we have strayed far from the
subject of this trial. There is no possibility at all of interrupting evidence such as this,
while it is being rendered, out of respect for the witness and out of respect for the matter

20. Gideon Hausner, Justice in Jerusalem 291, 292 (1966).

21. Id.
22. Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holo-
caust 106 (2001).
23. Id. at 144.
24 1. The Idea of International Criminal Law

he is relating. It is your task . . . to eliminate everything that is not relevant to the trial, so
as not to place the Court once again — and this is not the first time — in such a situation.
I regret that I have to make these remarks, after the conclusion of evidence such as this.24

The most famous moment in the Eichmann trial occurred during the testimony of
Yehiel Dinur, a death-camp survivor who, after moving to Israel, had published several
books on Auschwitz under the name ‘‘Katzetnik [concentration camp inmate]
135633’’ — the number tattooed on his arm in the camp.25

Q : What was the reason that you hid your identity behind the pseudonym ‘‘K. Zetnik,’’
Mr. Dinur?
A : It was not a pen name. I do not regard myself as a writer and a composer of literary
material. This is a chronicle of the planet of Auschwitz. I was there for about two years.
Time there was not like it is here on earth. Every fraction of a minute there passed on a
different scale of time. And the inhabitants of this planet had no names, they had no parents
nor did they have children. There they did not dress in the way we dress here; they were not
born there and they did not give birth; they breathed according to different laws of nature;
they did not live — nor did they die — according to the laws of this world. Their name was
the number ‘‘Katzetnik.’’ They were clad there, how would you call it. . . .
Q : Yes. Is this what you wore there? [Shows the witness the prison garb of Auschwitz.]
A : This is the garb of the planet called Auschwitz. And I believe with perfect faith that I have
to continue to bear this name so long as the world has not been aroused after this crucifixion
of a nation, to wipe out this evil, in the same way as humanity was aroused after the cruci-
fixion of one man. I believe with perfect faith that, just as in astrology the stars influence our
destiny, so does this planet of the ashes, Auschwitz, stand in opposition to our planet earth,
and influences it. If I am able to stand before you today and relate the events within that
planet, if I, a fall-out of that planet, am able to be here at this time, then I believe with perfect
faith that this is due to the oath I swore to them there. They gave me this strength. . . .
For they left me, they always left me, they were parted from me, and this oath always
appeared in the look of their eyes. For close on two years they kept on taking leave of me and
they always left me behind. I see them, they are staring at me, I see them, I saw them standing
in the queue. . . .
Q : Perhaps you will allow me, Mr. Dinur, to put a number of questions to you, if you will
agree?
A : [Tries to continue] I remember . . .
Presiding Judge : Mr. Dinur, kindly listen to what the Attorney General has to say.
[Witness Dinur rises from his place, descends from the witness stand, and collapses on the
platform. The witness fainted.]
Presiding Judge : I think we shall have to adjourn the session. I do not think that we can
continue.
Attorney General : I did not anticipate this.
Presiding Judge : [After some time] I do not think that it is possible to go on. We shall adjourn
the Session now, and please, Mr. Hausner, inform us of the condition of the witness and
whether he will at all be able to give his testimony today. And I would ask you to do so soon.26

Dinur did not return. In the Judgment, the court alluded to his abortive testimony
only once:

24. 1 Eichmann Trial at 466, quoted in Douglas, supra, at 137-138, and available at http://www.nizkor
.org/hweb/people/e/eichmann-adolf/transcripts/Sessions/Session-027-10.html (at Session 27, Part 10).
25. ‘‘KZ’’ — pronounced ‘‘kah-tzet’’ in German, hence the pen-name ‘‘Katzetnik’’ — stands for Kon-
zentrationslager, that is, ‘‘concentration camp.’’
26. 3 Eichmann Trial at 1237, available at http://www.nizkor.org/hweb/people/e/eichmann-adolf/
transcripts/Sessions/Session-068-01.html (Session 68, Part 1).
E. Is International Criminal Law Different? The Eichmann Trial 25

Katzetnik(Yehiel Dinur) collapses at the Eichmann trial.

. . . Documents were submitted describing the Holocaust in the East, but the bulk of the
evidence consisted of statements by witnesses, ‘‘brands plucked from the fire,’’ who
followed each other in the witness box for days and weeks on end. They spoke simply,
and the seal of truth was on their words. But there is no doubt that even they themselves
could not find the words to describe their suffering in all its depth. . . . This is a task for
the great writers and poets. Perhaps it is symbolic that even the author, who himself went
through the hell named Auschwitz, could not stand the ordeal in the witness box and
collapsed.
Moreover, this part of the indictment is not in dispute in this case. The witnesses who
gave evidence about this part were hardly questioned at all by Counsel for the Defence,
and at a certain stage in the proceedings he even requested that the Court therefore
26 1. The Idea of International Criminal Law

waive the hearing of these witnesses. To this we could not agree because, since the
Accused denied all the counts in the indictment, we had to hear also the evidence on
the factual background of the Accused’s responsibility, and could not break up the
indictment according to a partial admission of facts by the Accused.27

Do you find persuasive the court’s reason for permitting witnesses with no specific
knowledge about Eichmann to testify about the horrors of the Holocaust ‘‘for days
and weeks on end’’? Is it true, as Judge Landau says of the testimony of Abba Kovner,
that ‘‘[t]here is no possibility at all of interrupting evidence such as this, while it is
being rendered, out of respect for the witness and out of respect for the matter he is
relating’’? The defense had offered to stipulate to the facts of the Holocaust. Did the
court owe a duty to permit the survivors their days and weeks in court? Was their
testimony essential to provide context for understanding Eichmann’s actions? Is this
what a criminal trial is supposed to be?

27. Eichmann Judgment, ¶119.

 CHAPTER
3
International Criminal Tribunals: From
Nuremberg to The Hague — and Beyond

In the materials that follow, we examine the background of modern international

criminal law in the strict sense (as we labeled it in Chapter 1): law establishing
international crimes and international institutions for trying them.
We begin by examining in detail the prototype of all subsequent international
tribunals. This was the military tribunal set up by the victorious World War II Allies
at Nuremberg, Germany, to try Germans and their allies accused of war crimes,
aggression, and crimes against humanity. We then briefly examine the parallel
Tokyo Tribunal, which tried Japanese leaders facing similar charges. There were
no further international criminal tribunals for nearly half a century, until the United
Nations established the International Criminal Tribunal for the Former Yugoslavia
(ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994.
In the remainder of the chapter, we briefly survey the range of post-ICTR tribunals —
in East Timor, in Sierra Leone, in Cambodia, and elsewhere. The International
Criminal Court (ICC) is treated in a separate chapter.

A. THE NUREMBERG TRIBUNAL

By the time the World War II ended on August 16, 1945, an estimated 50 to 60 million
people had perished as a result of the fighting. The Soviet Union alone lost almost
25 million, more than half of them civilians. Germany suffered 7.5 million war dead,
amounting to more than 10 percent of its population; these included more than
300,000 civilians killed in Allied bombing of German cities. The war dead included
6 million Jewish victims of genocide and 3 million Soviet prisoners of war who died of
mistreatment in POW camps. Other groups targeted for total eradication during the
Holocaust included Jehovah’s Witnesses, Roma and Sinti people (gypsies), and
homosexuals; in addition, the Nazis murdered an estimated 200,000 mentally and
physically handicapped persons in a eugenics-inspired, pseudoscientific program of
‘‘mercy killings.’’ In addition to groups targeted for total destruction, the Nazis killed
approximately 2 million non-Jewish Poles, especially targeting intelligentsia, political
leaders, and clergy. Other atrocities included slave labor; horrifying medical experi-
ments performed on conscious human beings in the camps; widespread torture,
looting, rape; and ‘‘disappearances’’ of political prisoners.

73
74 3. International Criminal Tribunals

In September 1944, U.S. Secretary of State Henry Stimson wrote to President

Franklin D. Roosevelt: ‘‘It is primarily by the thorough apprehension, investigation
and trial of all the Nazi leaders and instruments of the Nazi system of terrorism such as
the Gestapo, with punishment delivered as promptly, swiftly and severely as possible,
that we can demonstrate the abhorrence which the world has for such a system and
bring home to the German people our determination to extirpate it and its fruits
forever.’’1 Stimson’s memorandum contains the root idea of the Nuremberg trial of
the German leadership, which was created at U.S. insistence, over the objections of
Great Britain. The British did not want to put the top Nazis on trial — they wanted to
round them up and shoot them. The British feared that Adolf Hitler and other
German leaders ‘‘would use the courtroom as a forum for accusing the British and
French of having grievously injured Germany after World War I by the terms of the
Versailles Treaty, the French occupation of the Ruhr in 1923, the failure of the vic-
torious powers to disarm, and other political and economic sins.’’2 In the British view,
war-crimes trials should be reserved for low-ranking accused; the higher-ups should
face summary execution on the basis of purely political decisions. The Soviet govern-
ment had a third view: The guilt of the German leadership should be determined by
political decision with no trials — the same as the British idea — but international
trials should nevertheless be held to determine degree of guilt and sentences.3
The U.S. view prevailed. The Allies met in London to discuss and draft the charter
of the future tribunal, which set up shop in the southwest German city of Nuremberg.
Heading the U.S. delegation was Supreme Court Justice Robert Jackson, who took a
leave of absence from the Court and afterward served as lead U.S. prosecutor at
Nuremberg.
The Allies hoped to try the top Nazis in the first round of trials; but most of the Nazi
leadership had committed suicide or fled. Eventually, the Allies tried 22 members of
the remaining political, economic, and military leadership of the Third Reich. Three
were acquitted of all charges, and others of some of the charges; two committed
suicide during the trial; and the remainder received terms of years or death sentences.
The following excerpt sets out the substantive criminal law of the Charter.

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL

(THE ‘‘LONDON AGREEMENT’’ OR ‘‘NUREMBERG CHARTER’’)
Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, 284

. . . ARTICLE 6

The Tribunal established by the Agreement referred to in Article 1 hereof for the trial
and punishment of the major war criminals of the European Axis countries shall have
the power to try and punish persons who, acting in the interests of the European Axis
countries, whether as individuals or as members of organizations, committed any of
the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the
Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging
of a war of aggression, or a war in violation of international treaties, agreements or

1. Ann Tusa & John Tusa, The Nuremberg Trial 52 (1984).

2. Telford Taylor, The Anatomy of the Nuremberg Trials 51 (1992).
3. Id. at 59.
A. The Nuremberg Tribunal 75

assurances, or participation in a common plan or conspiracy for the accomplishment

of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations
shall include, but not be limited to, murder, ill-treatment or deportation to slave labor
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 devasta-
tion not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population,
before or during the war; or persecutions on political, racial or religious grounds
in execution of or in connection with any crime within the jurisdiction of the Tribu-
nal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation
or execution of a common plan or conspiracy to commit any of the foregoing crimes
are responsible for all acts performed by any persons in execution of such plan.

ARTICLE 7

The official position of defendants, whether as Heads of State or responsible officials

in Government Departments, shall not be considered as freeing them from respon-
sibility or mitigating punishment.

ARTICLE 8

The fact that the Defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered in mitigation
of punishment if the Tribunal determines that justice so requires.

ARTICLE 9

At the trial of any individual member of any group or organization the Tribunal may
declare (in connection with any act of which the individual may be convicted) that the
group or organization of which the individual was a member was a criminal
organization.

ARTICLE 10

In cases where a group or organization is declared criminal by the Tribunal, the

competent national authority of any Signatory shall have the right to bring individuals
to trial for membership therein before national, military or occupation courts. In any
such case the criminal nature of the group or organization is considered proved and
shall not be questioned.

NOTES AND QUESTIONS

1. Notice from Article 6 that the jurisdiction of the Tribunal reaches only
‘‘persons . . . acting in the interests of the European Axis countries. . . .’’ No provision
76 3. International Criminal Tribunals

permitted the trial of Allied perpetrators of similar crimes. Yet Jackson wrote to Tru-
man that the Allies ‘‘have done or are doing some of the very things we are prose-
cuting Germans for. The French are so violating the Geneva Convention in the
treatment of prisoners of war that our command is taking back prisoners sent to
them. . . . We are prosecuting plunder and our Allies are practicing it. We say aggres-
sive war is a crime and one of our allies asserts sovereignty over the Baltic States based
on no title except conquest.’’4 Churchill ordered the bombing of civilian neighbor-
hoods in German cities, and Truman himself ordered the atomic bombing of Hiro-
shima and Nagasaki; U.S. Admiral Chester Nimitz admitted that he conducted
unrestricted submarine warfare (a war crime charged against German Admiral
Dönitz); and the Soviet Union massacred between 15,000 and 20,000 Polish officers
in Katyn Forest in anticipation of a postwar conquest of Poland. Does the Charter’s
limited jurisdiction reduce the Tribunal to mere hypocrisy or ‘‘victor’s justice’’?
Should the Tribunal have extended its jurisdiction to the Allies? What would the
likely response have been to such a proposal?
One consequence of restricting Article 6 to Axis defendants was that aggressive war,
war crimes, and crimes against humanity were not turned into genuine international
crimes at Nuremberg: They were crimes only when committed by the Axis countries.
Not until 1950 did the UN General Assembly declare that the substantive law of the
Nuremberg Charter constitutes universal principles of international law.5
2. Notice also that ‘‘[l]eaders, organizers, instigators and accomplices participating
in the formulation or execution of a common plan or conspiracy to commit any of the
foregoing crimes are responsible for all acts performed by any persons in execution of
such plan.’’ The purpose of this clause was to enable the Tribunal to ‘‘reach back’’ to
the years between Hitler’s 1933 ascendancy to power and September 1, 1939.
One difficulty with this idea was that the crime of conspiracy is unknown in civil law
countries, including France and Russia. As one historian reported the London
debates:

During much of the discussion, the Russians and French seemed unable to grasp all the
implications of the concept; when they finally did grasp it, they were genuinely shocked.
The French viewed it entirely as a barbarous legal mechanism unworthy of modern law,
while the Soviets seemed to have shaken their head in wonderment. . . .6

One reason for this shocked response was the proposition that each and every
conspirator is ‘‘responsible for all acts performed by any persons in execution of
such plan’’ — in this case, for literally tens of millions of murders. Is this extended
theory of liability a good way to treat participation in a conspiracy? A few months after
the adoption of the Nuremberg Charter, the U.S. Supreme Court incorporated this
extended notion of liability into federal criminal law in Pinkerton v. United States,7
which holds that each conspirator is responsible for all reasonably foreseeable
offenses committed by other conspirators in furtherance of the conspiracy. This
concept is now known in U.S. law as ‘‘Pinkerton liability.’’ As we shall see in Chapter 17,
subsequent international tribunals have dropped the crime of conspiracy from those
enumerated in international criminal law. The conspiracy crime does not appear in
the UN’s 1950 Nuremberg Principles.

4. Robert E. Conot, Justice at Nuremberg 68 (1983).

5. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and Judg-
ment of the Tribunal, U.N. GAOR, 5th Sess., Supp. No. 12, U.N. Doc. A/1316 (July 29, 1950).
6. Bradley F. Smith, Reaching Judgment at Nuremberg 51 (1977).
7. 328 U.S. 640, 647 (1946).
A. The Nuremberg Tribunal 77

3. Another of the Allies’ ideas for putting the Nazi movement as well as individuals
on trial is embodied in Articles 9 and 10 of the Charter. Article 9 enables the Tribunal
to declare entire organizations to be criminal organizations. The indictment asked for
such declarations of criminality against the Leadership Corps of the Nazi Party, the
Gestapo (secret police) and Security Service, the SS, the Storm Troopers, the Reich
Cabinet, the General Staff, and the High Command. According to Article 10, after
such a finding, any member of the organization could be found guilty of its crimes
simply by proving that he was a member of the organization. It is a concept of
collective guilt. As we shall see below, the Tribunal found Articles 9 and 10 hard to
stomach and drastically limited their applicability. These articles also do not appear in
the UN’s Nuremberg Principles.
4. One persistent challenge facing international tribunals lies in the fact that their
procedural rules must meld the widely varying procedures of different legal systems.
As Telford Taylor explains, this was true at Nuremberg:

Under the Continental system (known to lawyers as the ‘‘inquisitorial’’ system), most of
the documentary and testimonial evidence is presented to an examining magistrate, who
assembles all of it in a dossier. If this process establishes a sufficient basis for prosecution,
copies of the dossier and the indictment based on it are given to the defendant and to the
court which is to try the case, and the trial then proceeds with both the court and
the concerned parties fully informed in advance of the evidence for and against the
defendant. If the court, on its own motion or at the request of one of the parties, decides
to take further testimony, the witnesses are usually questioned by the judges, rather than
the lawyers, so that cross-examinations by opposing counsel, which play so large a part in
Anglo-American trials, do not often occur. The defendant is not allowed to testify under
oath, but may make an unsworn statement to the court. . . .
Naturally, the limited role of lawyers in Continental criminal trials had little appeal for
British barristers or American advocates. The French and Russians went a long way to
meet their allies’ psychological needs for the adversarial process, even though they
understood it very imperfectly; at the very last meeting Nikitchenko had to ask:
‘‘What is meant in the English by ‘cross-examine’?’’ Falco found ‘‘a little shocking’’
the idea that the defense would not, prior to trial, be informed of ‘‘the whole case against
them’’ and complained: ‘‘It seems there is a possibility under this draft that the defense
could be faced during the trial with the opening of a Pandora’s box of unhappy surprises,
inasmuch as during the trial there is liberty to the prosecution to produce something
new.’’ Jackson was driven close to distraction:
. . . I would not know how to proceed with a trial in which all the evidence had
been included in the indictment. I would not see anything left for a trial and, for
myself, I would not know what to do in open court.
The differences were resolved by compromises which were crude but proved work-
able. For example, the Charter would require, contrary to Anglo-American practice, that
the indictment ‘‘shall include full particulars specifying in detail the charges against the
defendants’’ and that there would be ‘‘documents’’ submitted with the indictment, but,
contrary to Continental practice, it did not require that the prosecution present all of its
evidence with the indictment. Contrary to Continental practice the defendants could
testify as witnesses in their own behalf, but contrary to Anglo-American practice, defen-
dants could also make an unsworn statement at the end of the trial.8

The four victorious powers (France, Great Britain, the Soviet Union, and the United
States) divided the judicial and prosecutorial responsibilities among them. All four

8. Telford Taylor, The Anatomy of the Nuremberg Trials 63-64 (1992).

78 3. International Criminal Tribunals

had judges on the tribunal, and all four shared in prosecuting the case: There were
four chief prosecutors, each focusing on one aspect of the cases. United States
Supreme Court Justice Robert Jackson opened for the prosecution, in a lengthy
and famous speech. We quote two excerpts from the speech — Jackson’s initial pre-
sentation of the case and part of his argument that the trial was not illegitimately ex
post facto.

OPENING STATEMENT OF ROBERT JACKSON

2 The Trial of German Major War Criminals by the International
Military Tribunal Sitting at Nuremberg, Germany, Nov. 21, 1945 (1946)

May it please Your Honour,

The privilege of opening the first trial in history for crimes against the peace of the
world imposes a grave responsibility. The wrongs which we seek to condemn and
punish have been so calculated, so malignant and so devastating, that civilisation
cannot tolerate their being ignored, because it cannot survive their being repeated.
That four great nations, flushed with victory and stung with injury, stay the hands of
vengeance and voluntarily submit their captive enemies to the judgment of the law, is
one of the most significant tributes that Power ever has paid to Reason.
This Tribunal, while it is novel and experimental, is not the product of abstract
speculations nor is it created to vindicate legalistic theories. This inquest represents
the practical effort of four of the most mighty of nations, with the support of
seventeen more, to utilise International Law to meet the greatest menace of our
times — aggressive war. The common sense of mankind demands that law shall not
stop with the punishment of petty crimes by little people. It must also reach men who
possess themselves of great power and make deliberate and concerted use of it to set
in motion evils which leave no home in the world untouched. It is a cause of that
magnitude that the United Nations will lay before Your Honour . . . .
In justice to the nations and the men associated in this prosecution, I must remind
you of certain difficulties which may leave their mark on this case. Never before in
legal history has an effort been made to bring within the scope of a single litigation the
developments of a decade, covering a whole continent, and involving a score of
nations, countless individuals, and innumerable events. Despite the magnitude of
the task, the world has demanded immediate action. This demand has had to be
met, though perhaps at the cost of finished craftsmanship. In my country, established
courts, following familiar procedures, applying well-thumbed precedents, and deal-
ing with the legal consequences of local and limited events, seldom commence a trial
within a year of the event in litigation. Yet less than eight months ago today the
courtroom in which you sit was an enemy fortress in the hands of German S.S. troops.
Less than eight months ago nearly all our witnesses and documents were in enemy
hands. The law had not been codified, no procedures had been established, no
tribunal was in existence, no usable courthouse stood here, none of the hundreds
of tons of official German documents had been examined, no prosecuting staff had
been assembled, nearly all of the present defendants were at large, and the four
prosecuting powers had not yet joined in common cause to try them. I should be
the last to deny that the case may well suffer from incomplete researches, and quite
likely will not be the example of professional work which any of the prosecuting
nations would normally wish to sponsor. It is, however, a completely adequate case
to the judgment we shall ask you to render, and its full development we shall be
obliged to leave to historians.
A. The Nuremberg Tribunal 79

Before I discuss particulars of evidence, some general considerations which may

affect the credit of this trial in the eyes of the world should be candidly faced. There is
a dramatic disparity between the circumstances of the accusers and of the accused
that might discredit our work if we should falter, in even minor matters, in being fair
and temperate.
Unfortunately, the nature of these crimes is such that both prosecution and judg-
ment must be by victor nations over vanquished foes. The world-wide scope of the
aggressions carried out by these men has left but few real neutrals. Either the victors
must judge the vanquished or we must leave the defeated to judge themselves. After
the First World War we learned the futility of the latter course. The former high
station of these defendants, the notoriety of their acts, and the adaptability of their
conduct to provoke retaliation, make it hard to distinguish between the demand for a
just and measured retribution, and the unthinking cry for vengeance which arises
from the anguish of war. It is our task, so far as is humanly possible, to draw the line
between the two. We must never forget that the record on which we judge these
defendants today is the record on which history will judge us tomorrow. To pass
these defendants a poisoned chalice is to put it to our lips as well. We must summon
such detachment and intellectual integrity to our task that this trial will commend
itself to posterity as fulfilling humanity’s aspirations to do justice. At the very outset, let
us dispose of the contention that to put these men to trial is to do them an injustice
entitling them to some special consideration. These defendants may be hard pressed
but they are not ill used. . . .
If these men are the first war leaders of a defeated nation to be prosecuted in the
name of the law, they 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,
when in power, they rarely extended even 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. . . .
We would also make clear that we have no purpose to incriminate the whole
German people. We know that the Nazi Party was not put in power by a majority
of the German vote. We know it came to power by an evil alliance between the most
extreme of the Nazi revolutionists, the most unrestrained of the German reaction-
aries, and the most aggressive of the German militarists. If the German populace had
willingly accepted the Nazi programme, no Storm-troopers would have been needed
in the early days of the Party, and there would have been no need for concentration
camps or the Gestapo, both of which institutions were inaugurated as soon as the
Nazis gained control of the German state. Only after these lawless innovations proved
successful at home were they taken abroad . . . .
While this declaration of the law by the Charter is final, it may be contended that
the prisoners on trial are entitled to have it applied to their conduct only most char-
itably if at all. It may be said that this is new law, not authoritatively declared at the time
they did the acts it condemns, and that this declaration of the law has taken them by
surprise.
I cannot, of course, deny that these men are surprised that this is the law; they really
are surprised that there is any such thing as law. These defendants did not rely on any
law at all. Their programme ignored and defied all law. . . . International Law, Natural
Law, German Law, any law at all, was to these men simply a propaganda device to be
80 3. International Criminal Tribunals

invoked when it helped and to be ignored when it would condemn what they wanted
to do. That men may be protected in relying upon the law at the time they act, is the
reason we find laws of retrospective operation unjust. But these men cannot bring
themselves within the reason of the rule which in some systems of jurisprudence
prohibits ex post facto laws. They cannot show that they ever relied upon International
Law in any state or paid it the slightest regard. . . .
The re-establishment of the principle that there are unjust wars and that unjust wars
are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg
Pact of 1928, by which Germany, Italy and Japan, in common with practically all
nations of the world, renounced war as an instrument of national policy, bound
themselves to seek the settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international controversies. This pact altered the
legal status of a war of aggression. . . .
Any resort to war — to any kind of a war — is a resort to means that are inherently
criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and
destruction of property. An honestly defensive war is, of course, legal and saves those
lawfully conducting it from criminality. But inherently criminal acts cannot be
defended by showing that those who committed them were engaged in a war,
when war itself is illegal. The very minimum legal consequence of the treaties making
aggressive wars illegal is to strip those who incite or wage them of every defence the law
ever gave, and to leave war-makers subject to judgment by the usually accepted prin-
ciples of the law of crimes.
But if it be thought that the Charter, whose declarations concededly bind us all,
does contain new law, I still do not shrink from demanding its strict application by this
Tribunal. The rule of law in the world, flouted by the lawlessness incited by these
defendants, had to be restored at the cost to my country of over a million casualties,
not to mention those of other nations. I cannot subscribe to the perverted reasoning
that society may advance and strengthen the rule of law by the expenditure of morally
innocent lives, but that progress in the law may never be made at the price of morally
guilty lives.
It is true, of course, that we have no judicial precedent for the Charter. But
International Law is more than a scholarly collection of abstract and immutable
principles. It is an outgrowth of treaties and agreements between nations, and of
accepted customs. Yet every custom has its origin in some single act, and every agree-
ment has to be initiated by the action of some State. Unless we are prepared to
abandon every principle of growth for International Law, we cannot deny that our
own day has the right to institute customs and to conclude agreements that will
themselves become sources of a newer and strengthened International Law.
International Law is not capable of development by the normal processes of legisla-
tion, for there is no continuing international legislative authority. Innovations and
revisions in International Law are brought about by the action of governments such as
those I have cited, designed to meet a change in circumstances. It grows, as did the
Common Law, through decisions reached from time to time in adapting settled
principles to new situations. The fact is that when the law evolves by the case method,
as did the Common Law and as International Law must do if it is to advance at all, it
advances at the expense of those who wrongly guessed the law and learned too late
their error. The law, as far as International Law can be decreed, had been clearly
pronounced when these acts took place. Hence we are not disturbed by the lack of
judicial precedent for the inquiry it is proposed to conduct.
A. The Nuremberg Tribunal 81

JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL

FOR THE TRIAL OF GERMAN MAJOR WAR CRIMINALS
Nuremberg, Sept. 30 and Oct. 1, 1946 . . .

THE LAW OF THE CHARTER

The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the
crimes coming within the jurisdiction of the Tribunal, for which there shall be
individual responsibility, are set out in Article 6. The law of the Charter is decisive,
and binding upon the Tribunal.
The making of the Charter was the exercise of the sovereign legislative power by the
countries to which the German Reich unconditionally surrendered; and the
undoubted right of these countries to legislate for the occupied territories has
been recognized by the civilised world. The Charter is not an arbitrary exercise of
power on the part of the victorious nations, but in the view of the Tribunal, as will be
shown, it is the expression of international law existing at the time of its creation; and
to that extent is itself a contribution to international law.
The Signatory Powers created this Tribunal, defined the law it was to administer,
and made regulations for the proper conduct of the Trial. In doing so, they have done
together what any one of them might have done singly; for it is not to be doubted that
any nation has the right thus to set up special courts to administer law. With regard to
the constitution of the court, all that the defendants are entitled to ask is to receive a
fair trial on the facts and law.
The Charter makes the planning or waging of a war of aggression or a war in
violation of international treaties a crime; and it is therefore not strictly necessary
to consider whether and to what extent aggressive war was a crime before the execu-
tion of the London Agreement. But in view of the great importance of the questions
of law involved, the Tribunal has heard full argument from the Prosecution and the
Defence, and will express its view on the matter.
It was urged on behalf of the defendants that a fundamental principle of all law —
international and domestic — is that there can be no punishment of crime without a
pre-existing law. ‘‘Nullum crimen sine lege, nulla poena sine lege.’’ It was submitted that ex
post facto punishment is abhorrent to the law of all civilised nations, that no sovereign
power had made aggressive war a crime at the time that the alleged criminal acts were
committed, that no statute had defined aggressive war, that no penalty had been fixed
for its commission, and no court had been created to try and punish offenders.
In the first place, it is to be observed 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 have attacked
neighboring 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. Occu-
pying the positions they did in the government of Germany, the defendants, or at least
some of them must have known of the treaties signed by Germany, outlawing recourse
to war for the settlement of international disputes; they must have known that they
were acting in defiance of all international law when in complete deliberation they
carried out their designs of invasion and aggression. On this view of the case alone, it
would appear that the maxim has no application to the present facts.
This view is strongly reinforced by a consideration of the state of international law
in 1939, so far as aggressive war is concerned. The General Treaty for the
82 3. International Criminal Tribunals

Renunciation of War of 27th August, 1928, more generally known as the Pact of Paris
or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany,
Italy and Japan at the outbreak of war in 1939. . . .
The question is, what was the legal effect of this Pact? The nations who signed the
Pact or adhered to it unconditionally condemned recourse to war for the future as an
instrument of policy, and expressly renounced it. After the signing of the Pact, any
nation resorting to war as an instrument of national policy breaks the Pact. In the
opinion of the Tribunal, the solemn renunciation of war as an instrument of national
policy necessarily involves the proposition that such a war is illegal in international
law; and that those who plan and wage such a war, with its inevitable and terrible
consequences, are committing a crime in so doing. . . .
But it is argued that the Pact does not expressly enact that such wars are crimes, or
set up courts to try those who make such wars. To that extent the same is true with
regard to the laws of war contained in the Hague Convention. The Hague Convention
of 1907 prohibited resort to certain methods of waging war. These included the
inhumane treatment of prisoners, the employment of poisoned weapons, the
improper use of flags of truce, and similar matters. Many of these prohibitions had
been enforced long before the date of the Convention; but since 1907 they have
certainly been crimes, punishable as offences against the laws of war; yet the Hague
Convention nowhere designates such practices as criminal, nor is any sentence
prescribed, nor any mention made of a court to try and punish offenders. For
many years past, however, military tribunals have tried and punished individuals
guilty of violating the rules of land warfare laid down by this Convention. In the
opinion of the Tribunal, those who wage aggressive war are doing that which is
equally illegal, and of much greater moment than a breach of one of the rules of
the Hague Convention. In interpreting the words of the Pact, it must be remem-
bered that international law is not the product of an international legislature, and
that such international agreements as the Pact of Paris 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 practised by military courts. This law is not static, but by
continual adaptation follows the needs of a changing world. Indeed, in many cases
treaties do no more than express and define for more accurate reference the
principles of law already existing. . . .

THE LAW RELATING TO WAR CRIMES AND CRIMES AGAINST HUMANITY . . .

With regard to crimes against humanity, there is no doubt whatever that political
opponents were murdered in Germany before the war, and that many of them were
kept in concentration camps in circumstances of great horror and cruelty. The
policy of terror was certainly carried out on a vast scale, and in many cases was
organised and systematic. The policy of persecution, repression and murder of
civilians in Germany before the war of 1939, who were likely to be hostile to
the Government, was most ruthlessly carried out. The persecution of Jews during
the same period is established beyond all doubt. To constitute crimes against
humanity, the acts relied on before the outbreak of war must have been in exe-
cution of, or in connection with, any crime within the jurisdiction of the Tribunal.
A. The Nuremberg Tribunal 83

The Tribunal is of the opinion that revolting and horrible as many of these crimes
were, it has not been satisfactorily proved that they were done in execution of, or
in connection with, any such crime. The Tribunal therefore cannot make a general
declaration that the acts before 1939 were crimes against humanity within the
meaning of the Charter, but from the beginning of the war in 1939 war crimes
were committed on a vast scale, which were also crimes against humanity; and
insofar as the inhumane acts charged in the Indictment, and committed after
the beginning of the war, did not constitute war crimes, they were all committed
in execution of, or in connection with, the aggressive war, and therefore consti-
tuted crimes against humanity. . . .

THE ACCUSED ORGANISATIONS

[Under Article 9 of the Charter, entire organisations could be declared criminal.

Under Article 10,] . . . the declaration of criminality against an accused organisation
is final, and cannot be challenged in any subsequent criminal proceeding against a
member of that organisation. Article 10 is as follows:

‘‘In cases where a group or organisation is declared criminal by the Tribunal, the com-
petent national authority of any Signatory shall have the right to bring individuals to trial
for membership therein before national, military or occupation courts. In any such case
the criminal nature of the group or organisation is considered proved and shall not be
questioned.’’

The effect of the declaration of criminality by the Tribunal is well illustrated by Law
Number 10 of the Control Council of Germany passed on 20th day of December,
1945, which provides:

‘‘. . . (3) Any person found guilty of any of the crimes above mentioned may upon
conviction be punished as shall be determined by the Tribunal to be just. Such
punishment may consist of one or more of the following:
(a) Death.
(b) Imprisonment for life or a term of years, with or without hard labour.
(c) Fine, and imprisonment with or without hard labour, in lieu thereof.’’

In effect, therefore, a member of an organisation which the Tribunal has declared

to be criminal may be subsequently convicted of the crime of membership and be
punished for that crime by death. This is not to assume that international or military
courts which will try these individuals will not exercise appropriate standards of jus-
tice. This is a far-reaching and novel procedure. Its application, unless properly safe-
guarded, may produce great injustice.
Article 9, it should be noted, uses the words ‘‘The Tribunal may declare’’ so that the
Tribunal is vested with discretion as to whether it will declare any organisation
criminal. This discretion is a judicial one and does not permit arbitrary action, but
should be exercised in accordance with well settled legal principles, one of the most
important of which is that criminal guilt is personal, and that mass punishments
should be avoided. If satisfied of the criminal guilt of any organisation or group,
this Tribunal should not hesitate to declare it to be criminal because the theory of
84 3. International Criminal Tribunals

‘‘group criminality’’ is new, or because it might be unjustly applied by some

subsequent tribunals. On the other hand, the Tribunal should make such declaration
of criminality so far as possible in a manner to insure that innocent persons will not be
punished.
A criminal organisation is analogous to a criminal conspiracy in that the essence of
both is cooperation for criminal purposes. There must be a group bound together
and organised for a common purpose. The group must be formed or used in con-
nection with the commission of crimes denounced by the Charter. Since the decla-
ration with respect to the organisations and groups will, as has been pointed out, fix
the criminality of its members, that definition should exclude persons who had no
knowledge of the criminal purposes or acts of the organisation and those who were
drafted by the State for membership, unless they were personally implicated in the
commission of acts declared criminal by Article 6 of the Charter as members of the
organisation. Membership alone is not enough to come within the scope of these
declarations.

NOTES AND QUESTIONS

1. What are Jackson’s and the tribunal’s arguments that the trial was not illegiti-
mately based on retroactive law? Are these arguments convincing?
2. What was the purpose of the Nuremberg trials? Deterrence? Retribution?
Rehabilitation?
3. Article 6(c) defines crimes against humanity as ‘‘murder, extermination, enslave-
ment, deportation, and other inhumane acts committed against any civilian popula-
tion, before or during the war . . .’’ (emphasis added). How faithful is the tribunal’s
judgment to the language indicating that atrocious conduct occurring before the
war can constitute crimes against humanity?
4. Under the tribunal’s analysis of Articles 9 and 10, what must prosecutors prove to
convict a member of a criminal organization such as the SS of crimes committed by
the SS? Is this a concept of collective guilt or individual guilt? Could an SS member
who never killed anyone be convicted of the war crime of murder?
5. The Allies greatly feared the revival of Nazism in Germany. Those Nuremberg
defendants sentenced to death were hanged, and their corpses were photographed
with their names pinned to their shirt-fronts, out of fear that neo-Nazis might whisper
that they were still alive. Then their bodies were cremated in the ovens of the Dachau
concentration camp, and the ashes scattered on a river — as a symbolic gesture, but
also to ensure that the graves would not become neo-Nazi shrines.
6. Do you agree with the tribunal that ‘‘[t]o initiate a war of aggression . . . is not
only an international crime; it is the supreme international crime’’? Is it worse than
genocide? Why might the tribunal have thought the answer is yes?

B. THE SUBSEQUENT NAZI TRIALS

The four Allied powers that occupied Germany at the end of the Second World War
together enacted a statute, Allied Control Council Law No. 10 (‘‘CCL 10’’), which
B. The Subsequent Nazi Trials 85

formed the basis for additional trials at Nuremberg and elsewhere. CCL 10, like the
Nuremberg Charter, criminalized crimes against peace, war crimes, crimes against
humanity, and membership in a criminal organization. It defined some of the
offenses slightly differently than the Nuremberg Charter, however. For example,
under CCL 10 crimes against peace included ‘‘initiation of invasions’’ of other
countries even when the invasions were not resisted — specifically, the German
annexation of Austria and part of Czechoslovakia before World War II. Its def-
inition of crimes against humanity included actions performed before the war;
and it added imprisonment, torture, and rape to the list of enumerated offenses
that would count as crimes against humanity. Although these were implicit in
the Nuremberg Charter’s catch-all category of ‘‘other inhumane acts,’’ CCL 10
was the first modern statute to declare that torture and rape during organized
attacks on civilian populations are international crimes.
Thousands of Germans were tried under CCL 10, by courts convened by one
or another of the Allies. Among the most interesting were the trials held by the
Americans in the second round at Nuremberg. Where the first Nuremberg trials
aimed at the leadership of the Third Reich, the second round singled out
representative categories of German society who had colluded with Nazi atroc-
ities: industrialists, doctors, lawyers, judges, and others. Thus, for example, the
defendants in the ‘‘Doctors Trial’’ were physicians and medical administrators
involved in one of the Third Reich’s most chilling criminal enterprises:
performing atrocious medical experiments on living, conscious concentration
camp inmates.
Doctors. Although some of these trials are now of merely historical interest, others
had a more lasting impact. Particularly influential was the Doctors’ Trial because in its
judgment the court articulated a set of principles — the Nuremberg Code — that
became the foundation for modern medical and experimental ethics. The Nurem-
berg Code marks the first authoritative statement of the principle that medical experi-
ments require the informed, voluntary consent of the subject.
Industrialists. Equally interesting (though less influential) were the trials of indus-
trialists who used slave labor. The idea that businessmen who are complicit in atro-
cious crimes may themselves be criminally liable is an important one. These cases
raise the difficult question of how active the complicity must be to rise from the level
of moral responsibility to that of criminal guilt. We study this question in greater
detail in Chapter 17.
Along the same lines, the British tried three men involved in the manufacture of
Zyklon B, the gas used in the death camps, which was originally devised and
manufactured as a pesticide. The defendants were the company’s CEO, his second
in command, and the gassing technician. They were charged with the war crime of
supplying poison gas knowing that it would be used in the murder of Allied nationals.
The technician was acquitted after persuading the court that he did not know Zyklon
B would be used on human beings; the other defendants were convicted and
hanged.9 The issue was revived in 2005 when a Dutch businessman, Franz van Anraat,
was convicted by a Dutch court of complicity in war crimes for selling Saddam

9. The Zyklon B Case (Trial of Bruno Tesch and Two Others), British Military Court, Hamburg, 1st-8th
March 1946, in 1 Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission,
London, HMSO, 1947.
86 3. International Criminal Tribunals

Hussein’s government chemicals used to make poison gas that Saddam used against
Kurds in Iraq.10
Lawyers and judges. Particularly poignant for lawyers was the Justice Case, which
tried leading judges and jurists from the Third Reich who had enforced discrimi-
natory or politicized Nazi law, or otherwise perverted the legal process to commit
war crimes or crimes against humanity. This included, for example, judges in the
infamous People’s Court, which handed out death sentences to political opponents
of the Hitler regime. Others were lawyers who wrote memos justifying the mistreat-
ment of Soviet prisoners and the executions of captured Soviet commissars and
captured Allied commandos. On the basis of Articles 6(c) and 7 (or, rather, their
counterparts in CCL 10), the tribunal found it irrelevant that all these actions
accorded with German law; it likewise brushed aside the defense of judicial immu-
nity, arguing that the defense would be available only to a genuinely impartial judge.
The Justice Case became the model for the Academy Award–winning film Judgment
at Nuremberg.

C. THE TOKYO TRIBUNAL

In addition to the Nuremberg trials, the end of World War II also saw an international
military tribunal for the Japanese leadership, held at Tokyo. Japan, like Germany, had
committed large- and small-scale atrocities, including mistreatment and murder of
captives, sexual enslavement of Korean ‘‘comfort women,’’ and massacres of civilians,
including the 1938 Rape of Nanking, in which up to 300,000 Chinese civilians were
killed.
Although it was nominally conducted by all the Allies, the International Military
Tribunal for the Far East (IMTFE) was dominated by the United States. The U.S.
general Douglas MacArthur established its Charter (based on the Nuremberg
Charter with a few small modifications and written by U.S. officials), chose
the judges, and made the important decision not to try the Japanese emperor or
crown prince. The 11 judges came from the 9 nations that were party to the Japanese
surrender agreement, plus India and the Philippines, who were added to provide
an Asian presence on the court. Although all 11 nations were represented on the
prosecution team, there was only a single chief prosecutor, Joseph Keenan,
an American. At Nuremberg, recall, each of the four principal Allies provided
its own chief prosecutor, and the four teams divided responsibilities among
themselves.
Due in large part to lack of understanding of Japanese governmental decision-
making processes, the selection of defendants at Tokyo was somewhat haphazard.
Twenty-eight military and governmental officials were eventually tried, including
Prime Minister Tojo. Two defendants died of natural causes, and one was removed
during the trial because of a mental breakdown. Far more than at Nuremberg, the
IMTFE involved a clash of cultures, including tensions between colonial powers like
Great Britain and colonies such as India. Indeed, the Indian judge, Radhabinod Pal,

10. Van Anraat narrowly escaped a genocide conviction because the court concluded that his inten-
tion was merely to make money, not to destroy the Kurds. See Harmen G. Van der Wilt, Genocide,
Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat
Case, 4 J. Intl. Crim. Just. 239 (2006).
D. The International Criminal Tribunal for Former Yugoslavia 87

issued a 700-page dissent from the IMTFE’s judgment, and in one frequently quoted
passage Justice Pal argued passionately that the ban on aggressive war represented an
effort by colonial powers to freeze the international status quo to their own advantage.
In addition to Justice Pal, one other judge dissented, and three wrote separate
opinions.
Seven of the defendants were sentenced to death, 16 to life imprisonment,
and 2 to terms of years. There were no acquittals. The rules of the tribunal
permitted a death penalty by simple majority vote of the judges, and one
defendant was hanged on a 6-5 vote.11 When the defendants appealed their
convictions to the U.S. Supreme Court, MacArthur announced that if the
Court granted habeas corpus, he would ignore it.12 Instead, the Court concluded
that it had no jurisdiction in Hirota v. MacArthur.13 In 1955, the 13 convicts who
remained alive were paroled.
The Tokyo trials developed an influential jurisprudence on crimes of sexual vio-
lence, centered around mass rapes committed in Nanking, China, and also important
decisions on the nature of command responsibility. However, to many observers it
seemed less fair than Nuremberg and more like victors’ justice — indeed, one major
book about the IMFTE is titled Victors’ Justice.14 So it appeared to Justice Pal, who wrote
in his dissenting opinion, ‘‘If Japan is judged, the Allies should also be judged
equally.’’
As a side note, the Tokyo Tribunal included the first female prosecutor at a major
war crimes trial, Grace Llewellyn Kanode.15

D. THE INTERNATIONAL CRIMINAL TRIBUNAL

FOR FORMER YUGOSLAVIA

It would be more than 40 years until the next international tribunal, which was
established by the United Nations in the wake of the brutal civil war (the ‘‘Balkan
Wars’’) following the breakup of Yugoslavia in the early 1990s.
In 1993, after a UN investigation of crimes committed in the Balkan Wars, the UN
Security Council adopted Resolutions 808 and 827, creating the International
Criminal Tribunal for the Former Yugoslavia (ICTY). The tribunal, sitting at The
Hague in the Netherlands, is divided into three Trial Chambers of three judges
each and one Appellate Chamber of five judges. Its statute grants it jurisdiction
over the crimes of genocide, crimes against humanity, ‘‘violations of the laws and
customs of war,’’ and grave breaches of the Geneva Conventions, committed in the
territory of former Yugoslavia after January 1, 1991.

11. Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial 91 (1977).
12. Herbert P. Bix, Hirohito and the Making of Modern Japan 609 (2000).
13. 338 U.S. 197 (1949).
14. Minear, supra note 11. See generally Allison Marston Danner, Beyond the Geneva Conventions:
Lesson from the Tokyo Tribunal in Prosecuting War and Terrorism, 46 Va. J. Intl. L. 83 (2005).
A comprehensive recent study, which incorporates documentary evidence unavailable to Minear, sum-
marizes the ‘‘victors’ justice’’ debate and sheds significant new light on the significance of the Tokyo trials.
Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008).
15. Neil Boiser & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal 78 (2008).
90 3. International Criminal Tribunals

next two years and assembled 65,000 pages of documents and 300 hours of video-
tapes. The subsequent work of the ICTY rested substantially on these documents,
videotapes, and the Commission’s 3,500-page final report.
The Bosnian War came to an end in 1995, after NATO bombed Serb forces in
Bosnia to protect the UN safe zones, and Croatian forces inflicted a decisive defeat
on the JNA, recapturing central Croatia. At that point, Milos̆ević became receptive to
peace talks, which occurred in Dayton, Ohio, and resulted in a treaty signed on
December 14.
Conflict erupted again in 1999, when the province of Kosovo attempted to secede
from Yugoslavia. Kosovo is inhabited by a Serb minority and an Albanian Muslim
majority. Escalating combat between Serb forces and the Muslim ‘‘Kosovo Liberation
Army’’ raised international fears of a second Bosnia. When peace talks, aimed at
installing NATO peacekeepers, failed, NATO, spearheaded by the United States
but without sanction from the UN Security Council, began bombing Serb units.
NATO eventually expanded its air war from Kosovo to Belgrade, Serbia’s capital
city, and Milos̆ević surrendered in June 1999, three months after the bombing
began. The Kosovo events became part of ICTY’s docket: While the Kosovo war
was going on, ICTY issued an indictment against Milos̆ević for war crimes and crimes
against humanity.
Two years later, a popular uprising overthrew Milos̆ević, and the successor Yugoslav
government eventually turned him over to the ICTY, where he was tried for numerous
crimes, including genocide. The Milos̆ević trial was notorious and controversial. Milo-
s̆ević never acknowledged the legitimacy of the tribunal, charging that it represented
nothing more than a Western plot against Serbia. At first he refused legal counsel and
insisted on representing himself. The result was delay and disruption, as Milos̆ević
delivered lengthy speeches and diatribes. He proved to be a fierce cross-examiner and
lost no opportunity to abuse and humiliate prosecution witnesses. The trial was also
repeatedly delayed because of Milos̆ević’s ill health (he had a heart condition).
Milos̆ević died mere weeks before the four-year-long trial was due to end. The death
of Milos̆ević before the trial’s completion meant that the tribunal could issue no
judgment in the case of its most prominent defendant.
In 2008 the Serbian government arrested Radovan Karadz̆ić, the former president
of the short-lived Bosnian Serb republic, and one of the two most wanted fugitives of
the Balkan Wars. The other is General Ratko Mladić, who was captured in 2011. As of
mid-2014, both of them are on trial — two of the final four trials.

2. The Tribunal

a. The ICTY Statute

Article 1 of ICTY’s statute grants it ‘‘the power to prosecute persons responsible for
serious violations of international humanitarian law committed in the territory of the
former Yugoslavia since 1991.’’ The substantive criminal law differs in some respects
from the law at Nuremberg. It does not include crimes against peace. War crimes are
specified in greater detail and are divided into two categories: grave breaches of the
Geneva Conventions (that is, crimes of violence against prisoners and detainees) and
war crimes involving excessive destruction or banned weapons. The list of crimes
against humanity derives from Allied Control Council Law No. 10, the statute used
in Germany in the second round of Nuremberg trials. Along with murder,
D. The International Criminal Tribunal for Former Yugoslavia 91

deportation, extermination, enslavement, persecution, and ‘‘other inhumane

acts’’ — the crimes against humanity enumerated in the Nuremberg Charter — it
adds imprisonment, rape, and torture, ‘‘when committed in armed conflict, whether
international or internal in character, and directed against any civilian population.’’
In addition, the ICTY statute adds genocide to the list of crimes, alongside war crimes
and crimes against humanity. Only natural persons (not corporations, organizations,
or governments) can be defendants; and, following the Nuremberg model, the head-
of-state and superior-orders defenses are abolished.
The ICTY established an organizational structure followed subsequently by the
ICTR and ICC. Sitting in The Hague, it consists of three Trial Chambers, an Appellate
Chamber, an independent Prosecutors’ Office, and a Registry that administers the
tribunal. Judges come from many nations and sit in three-judge panels (in the Trial
Chambers) and five-judge panels (in the Appellate Chamber). No two judges can be
nationals of the same state. Rules of procedure and evidence draw on both the
common law and civil law traditions.
ICTY can impose sentences of imprisonment, but not the death penalty.
Concerned about the costs of the ICTY and ICTR, in 2010 the UN Security Council
adopted Resolution 1966, which establishes a ‘‘Mechanism for International Tribu-
nals,’’ or ‘‘MICT.’’ The MICT will replace the ICTY and ICTR with a ‘‘residual mech-
anism’’ that is supposed to be smaller, more efficient, and temporary. The transition
from the ICTY to the MICT began in summer 2013. As of mid-2014, however, the ICTY
and MICT continue to overlap, including overlapping personnel.

b. Jurisdiction

The tribunal has concurrent jurisdiction with national tribunals of the various
Yugoslav states: Cases can be tried either before the tribunal or a national court.
But ICTY has primacy over national courts; it was feared that if the national tribu-
nals had primacy they might insist on trying their own perpetrators in order to
shield them. In this respect, the ICTY differs radically from the International
Criminal Court, which gives national tribunals primacy and can admit only
cases that states are unwilling or unable to investigate and try. The ICTY has
transferred a few cases to national courts involving lower-level figures, whom
the tribunal generally does not indict.
The jurisdiction of ICTY is broad, perhaps broader than the drafters of the statute
had contemplated. As indicated above, it possesses ‘‘the power to prosecute
persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991 in accordance
with the provisions of the present Statute.’’ (The final clause, ‘‘in accordance
with the provisions of the present Statute,’’ means simply that the tribunal can
try only the crimes enumerated in the statute.) The jurisdiction was framed
broadly in order to encompass all the varying ethnic groups involved in the
violence, but it had at least one unexpected consequence: When NATO forces
began bombing in the 1998 Kosovo war, then-ICTY prosecutor Louise Arbour
personally visited all the NATO capitals to warn member states that any serious
war crimes their forces committed fell under ICTY’s jurisdiction and could be
prosecuted. Reportedly, her visits caused considerable astonishment. (There
were, however, no prosecutions of NATO forces, despite Serbian allegations
of NATO war crimes.)
92 3. International Criminal Tribunals

c. The Work of the Tribunal

As of mid-2014, ICTY has tried more than 100 cases. Its docket (including both
completed and uncompleted cases) involves 161 defendants. Defendants include all
the ethnic groups in former Yugoslavia and all levels of the command structure: grunt-
level perpetrators of atrocities, local and larger-scale military commanders, and major
political leaders.
The best way to obtain a quick overview of ICTY’s work is by examining its Web site,
http://www.icty.org (click on ‘‘The Cases’’). Cases are indexed by defendants’ names
and also include the names of geographic regions where the crimes took place —
thus, for example, the case known as Mucic´ et al. is subtitled ‘‘C˘elebic´i.’’ It concerns
several defendants occupying positions of authority at the C̆elebići prison camp in
Bosnia, where inmates were tortured, raped, beaten, killed, or otherwise abused.
Half an hour spent skimming these summaries will provide a measure of the
tribunal’s work and also of the range of atrocities and depth of tragedy in the
Balkan Wars. The full opinions are also available, but they are very lengthy,
running to hundreds of pages, because — in the civil law tradition — they include
detailed descriptions of the evidence and fully reasoned factual findings as well as
legal findings. The tribunal also aims to establish a historical record and therefore
includes very full factual findings.
At first ICTY’s work was hampered by the difficulty of capturing defendants, who
were often protected by political sympathizers. UN and NATO troops, who
might have helped capture suspects, reportedly were reluctant to do so because
they believed it would undermine their basic peacemaking mission by making
them appear to be taking sides in the ethnic conflict. The tribunal’s first case
arose because the defendant, Draz̆en Erdemović — a soldier who participated in
the Srebrenica massacre — turned himself in and pled guilty. ICTY’s first con-
tested trial came about only because the defendant, Dus̆ko Tadić, made the
mistake of visiting Germany, where he was arrested and turned over to ICTY.
Tadić, a Bosnian Serb café owner and karate instructor, had repeatedly visited
a prison camp, where he participated in brutal beatings and tortures of prison-
ers. He was convicted and sentenced to 25 years. He was granted early release
in 2008.
Other practical issues confronting ICTY — as well as ICTR, the Rwanda tribunal —
include the difficulty of gathering evidence in communities that are often quite
hostile to the enterprise, and the difficulty and expense of protecting witnesses,
who may be subject to vengeance and retribution if they testify before the tribunal
and then return to their own communities. This is particularly difficult for victims of
sexual violence. Relocating a Yugoslav family in a witness protection program cost
hundreds of thousands of dollars a year, and although the tribunals have large bud-
gets (ICTY’s peak budget was almost $350 million, while ICTR’s was $250 million),
extensive witness relocation was impracticable.
The ICTY jurisprudence is extensive (the judgments of the tribunal amount to
thousands of pages) and remarkably interesting; the tribunal has innovated in
many areas of both substantive international criminal law and procedure. Arguably,
its jurisprudence has ‘‘moved the ball’’ in international criminal law more than any
other development since Nuremberg, and possibly more than the Nuremberg Tri-
bunal itself. Rather than discussing the ICTY’s jurisprudence here, we will refer to it
repeatedly in other chapters as topics arise.
96 3. International Criminal Tribunals

an international criminal tribunal as an instrument for the exercise of its own

principal function of maintenance of peace and security, i.e., as a measure contrib-
uting to the restoration and maintenance of peace in the former Yugoslavia. . . .
40. For the aforementioned reasons, the Appeals Chamber considers that the
International Tribunal has been lawfully established as a measure under
Chapter VII of the Charter.

NOTES AND QUESTIONS

1. Is it reasonable to suppose that the work of the tribunal would help lead to a
reestablishment of peace and security in former Yugoslavia? How would the tribunal
do so?
2. A major issue confronting ICTY, as well as other international tribunals, is
whether it should direct its attention entirely at the ‘‘big fish’’ defendants —
organizers and planners — or should it include prosecutions of low-level perpetra-
tors. ICTY has prosecuted both. Erdemović and Tadić were both low-level perpetra-
tors, and perhaps they were prosecuted only because at that time they were the only
defendants ICTY had in its custody. The general rule has been to target only the most
senior officials. It is also arguable that the colossal expense of trial before an
international tribunal can be justified only if the defendants are important figures.
For one thing, important figures are arguably the only ones likely to be deterred by
the prospect of prosecution in an international tribunal, which will seem quite remote
to foot soldiers and other ‘‘little’’ defendants. On the other hand, if one purpose of
the tribunals is to give victims justice, it may be important to try at least some of the
actual rapists and triggermen. That may, of course, give rise to the sense of selective
prosecution — the sense that one triggerman is singled out almost at random while
his comrades go on their way. What is your view?
3. Early in its existence, the ICTY confronted an ethical problem among defense
lawyers: It was discovered that some defense counsel were paying their clients kick-
backs to ensure that they could keep their lucrative assignments. The practice, which
was also prevalent in the ICTR, was quickly stamped out.
4. The ICTY, like subsequent international tribunals, has no death penalty.
5. For rather obvious reasons, the ICTY made efforts to ensure that it tried defen-
dants from all major ethnic groups and places within former Yugoslavia. Some believe
that this policy has led to disparities in the strength or seriousness of some cases.

e. Plea Bargaining

One of the most controversial issues facing the ICTY, as well as the other
international tribunals, is the practice of plea bargaining. The purposes of plea bar-
gaining are essentially two: first, to clear the docket by obtaining convictions without
the difficulty and uncertainty of a trial; and second, to get defendants to cooperate by
offering information needed to investigate other cases. (In U.S. jargon, this is nick-
named ‘‘flipping’’ defendants or ‘‘getting them to flip.’’)
Plea bargaining takes two forms: sentence bargaining, in which defendants are
offered a reduced sentence in return for a guilty plea, and charge bargaining, in
which defendants are offered the chance to plead guilty to lesser charges (which
often guarantees a reduced sentence). In international tribunals, where all the avail-
able charges are very serious, charge bargaining is rare (although we will see that it has
104 3. International Criminal Tribunals

small peacekeeping force, UNAMIR, in Rwanda. But despite urgent warnings of the
coming genocide from UNAMIR’s commander, Canadian general Roméo Dallaire,
the UN’s central peacekeeping office repeatedly denied him permission to take steps
such as seizing arms caches. After the genocide began, Dallaire requested reinforce-
ments and rules of engagement that would have allowed him to stop the genocide; but
again the UN in New York denied him permission. Throughout the period of the
genocide, the U.S. mission at the UN actively lobbied to shrink rather than expand
UNAMIR, and (as we shall see in Chapter 20 on genocide) the U.S. government
fought hard to prevent the Rwandan events from being labeled a genocide, for
fear that would generate pressure to intervene. Years later, in March 1998, President
Bill Clinton went to Rwanda and publicly apologized for U.S. inaction.
But the United States by no means bears sole responsibility for world inaction. UN
Secretary-General Boutros Boutros-Ghali was absent from New York for much of the
period of the genocide. And France, with deep connections to the Rwandan govern-
ment and mistrust of the RPF (which came out of Anglophone Uganda) was hostile to
intervention on behalf of the Tutsis. Western media were largely absent from Rwanda,
and the world press repeatedly distorted what was going on by describing it as a civil
war rather than a genocide, with equal atrocities on ‘‘both sides,’’ the whole thing
resulting from age-old tribal hatreds incomprehensible to outsiders.
After the genocide, General Dallaire, haunted by the atrocities he witnessed but was
powerless to stop, suffered a breakdown. He has subsequently recovered and has
become a renowned speaker on the issue of genocide.
It is in this context that we turn to the ICTR.

2. The Tribunal

a. Founding

Like the ICTY, the Rwanda Tribunal was created by the UN Security Council under
its Chapter VII powers, after a finding that the Rwandan genocide had created a
threat to international peace and security, and that the tribunal ‘‘would contribute
to the process of national reconciliation and to the restoration and maintenance of
peace.’’ Although the tribunal’s legality was not questioned by defendants, as Tadić
had questioned the legitimacy of the ICTY, the creation of the ICTR represented a
further evolution of the power of the Security Council to establish tribunals. The
Balkan Wars occurred between several states (Serbia, Croatia, Bosnia, Slovenia)
and therefore represented a genuinely international situation. But the Rwanda geno-
cide was internal to Rwanda. Consider whether ‘‘the process of national reconcilia-
tion’’ in Rwanda is a legitimate basis for Security Council action under Article 39,
which requires a threat to international peace and security. Was the tribunal a genuine
effort to respond to an ongoing threat, or was it rather a belated response to
international outrage at what transpired in Rwanda during the ‘‘hundred days of
genocide’’ in which the UN took no constructive action? Or, finally, was it an essential
means by which the international community showed that it treats mass killings in
Africa and Europe in similar ways?
At the time of the resolution creating the tribunal, Rwanda itself happened to have
a seat on the Security Council. When it came time to vote on the resolution, Rwanda
cast the only ‘‘no’’ vote. Why? Rwanda had several objections to the tribunal. First, it
would be located outside Rwanda. The Security Council placed the tribunal in
E. The International Criminal Tribunal for Rwanda 105

Arusha, Tanzania. Symbolically, Arusha was significant because it was the site of the
peace accord shortly before the genocide. It also seemed essential that the ICTR not
be located in Rwanda itself, where there would be great security problems and where,
it was feared, the tribunal would itself become a provocation. Nevertheless, Rwanda
believed that it was essential for trials to occur where the Rwandan people could see
them. Second, Rwanda objected because ICTR would not be able to impose the death
penalty, and the Rwandan government believed that genocide should be punishable
by death. One Rwandan official complained that the major perpetrators would live
out their lives in comfort in a ‘‘full-service Swedish prison.’’ (Most of those convicted,
it turns out, are imprisoned in Mali, Benin, or Swaziland under conditions that are
hardly luxurious. However, some have indeed been imprisoned in France, Italy, or
Sweden, where confinement conditions are better.35) Rwanda preferred that the
international community assist it by capturing and extraditing alleged perpetrators,
to face trial in Rwandan courts.
On the other hand, Rwanda itself was lamentably unable to take on the burden of
trying its own. By the end of the genocide, Rwanda’s legal system was in ruins; and the
number of suspects in Rwandan prisons exceeded 100,000. This itself created a major
humanitarian crisis because genocide suspects were literally rotting away in over-
crowded, disease-ridden prisons. In the words of one visitor to the Gitarama prison,

[t]here were three layers of prisoners: at the bottom, lying on the ground, there were the
dead, rotting on the muddy floor of the prison. Just above them, crouched down, there
were the sick, the wounded, those whose strength had drained away. They were waiting to
die. Their bodies had begun to rot and their hope of survival was reduced to a matter of
days or even hours. Finally at the top, standing up, there were those who were still
healthy. They were standing straight and moving from one foot to the other, half asleep.
Why? Simply because that’s where they happened to be living. Whenever a man fell over,
it was a gift to the survivors: a few extra centimetres of space. I remember a man who was
standing on his shins: his feet had rotted away.36

In Chapter 4, we discuss the Rwandan response to this crisis, especially its innovative
creation of informal traditional courts, called gacaca, to deal with the innumerable
cases.37
Interestingly, in 2007 Rwanda’s parliament abolished the death penalty, specifically to
enable the transfer of genocide suspects from the ICTR back to Rwanda. As the ICTR
reaches the end of its mandate and seeks to wrap up business, it has sometimes attempted
to transfer cases to other countries (a procedure that its rules permit under some cir-
cumstances); abolishing the death penalty allows Rwanda itself to take these cases.

b. The Statute

Article 1 of the ICTR statute grants the tribunal ‘‘the power to prosecute persons
responsible for serious violations of international humanitarian law committed in the

35. Combs, supra note 16, at 116.

36. André Sibomana, Hope for Rwanda 108-109 (Carina Tertsakian trans. 1997). For similar accounts,
see Philip Gourevitch, We Wish to Inform You That Tomorrow We Will be Killed With Our Families:
Stories from Rwanda 246-248 (1998); Scott Peterson, Me Against My Brother: At War in Somalia, Sudan,
and Rwanda 318 (2000).
37. For a detailed description of the legal response within Rwanda to the genocide, see Mark A.
Drumbl, Atrocity, Punishment, and International Law 71-99 (2007).
106 3. International Criminal Tribunals

territory of Rwanda and Rwandan citizens responsible for such violations committed
in the territory of neighbouring States between 1 January 1994 and 31 December
1994.’’ Notice both the limited time duration and the extended territorial jurisdiction
of ICTR.
In most other respects, the statute follows the ICTY model. ICTR is structured
similarly to the ICTY, with Trial Chambers, an Appellate Chamber, a Registry, and
an independent prosecutors’ office. And, like the ICTY, the UN Security Council has
replaced it with the MICT — in this case, located in Arusha rather than The Hague.
Among the crimes, the ICTR statute lists genocide first (it was listed last in the ICTY
statute). Given the character of the Rwandan events, this seems appropriate. The
statute also alters the definition of crimes against humanity. Where the ICTY statute
requires that the crimes be committed during an armed conflict, the ICTR statute
requires that they be ‘‘committed as part of a widespread or systematic attack against
any civilian population on national, political, ethnic, racial or religious grounds.’’38
Here, for the first time, a tribunal statute severs the link between crimes against
humanity and war (what scholars call ‘‘the war nexus’’) and acknowledges that crimes
against humanity can be committed independently of an armed conflict. The ICTR
definition also incorporates a discrimination requirement (‘‘committed . . . on
national, political, ethnic, racial or religious grounds’’39) that has not appeared in
any other definition of crimes against humanity.

c. Jurisdiction

As we have seen, the Yugoslav Tribunal has very broad jurisdiction, encompassing
persons who commit any statute crimes in the territory of former Yugoslavia since
1991. By contrast, the UN Security Council granted the ICTR a far narrower temporal
jurisdiction but somewhat wider spatial jurisdiction. It has jurisdiction over ‘‘persons
responsible for serious violations of international humanitarian law committed in the
territory of Rwanda and Rwandan citizens responsible for such violations committed
in the territory of neighbouring States between 1 January 1994 and 31 December
1994.’’ The final date was uncontroversial: By December 31, 1994, the genocide in
Rwanda was over, and the RPF government was in place. But the initial date, January 1,
1994, aroused more controversy. The time period was extended backward from April
6, 1994 — the date of President Habyarimana’s assassination — to include the plan-
ning stage of the crimes.40 But the question is whether going back three months was
long enough.
The Rwandan government did not think so, and the tribunal’s limited temporal
jurisdiction was the first of seven reasons given by Rwanda for voting against ICTR’s
establishment.41 Rwanda regarded the temporal jurisdiction as ‘‘inadequate’’
because it would prevent the tribunal from addressing acts committed in 1992 and
1993 in preparation for the genocide that followed, as well as four specific massacres
of Tutsis carried out from 1990 through 1993. Rwanda concluded that ‘‘[a]n
international tribunal which refuses to consider the causes of the genocide in Rwanda
and its planning, and that refuses to consider the pilot projects that preceded the

38. ICTR Statute, art. 3.

39. Id.
40. 1 Virginia Morris & Michael Scharf, The International Criminal Tribunal for Rwanda 297-299
(1997).
41. Id. at 301.
E. The International Criminal Tribunal for Rwanda 107

major genocide of April 1994, cannot be of any use to Rwanda, because it will not
contribute to eradicating the culture of impunity or creating a climate conducive to
national reconciliation.’’42
Some scholars speculated that certain criminal acts (planning, conspiring, etc.)
that occurred before January 1, 1994, could still be punishable if there were a nexus
between those acts and the genocide committed in 1994.43 This theory was tested
dramatically in a case involving three journalists charged with direct and public
incitement to genocide and conspiracy to commit genocide.
In 2003, the Trial Chamber convicted two journalists for anti-Tutsi broadcasting by
Radio Television Libre des Mille Collines, and a third for his role as editor-in-chief of
the anti-Tutsi newspaper Kangura. The conviction was partly based on articles or
broadcasts from before 1994. The Trial Chamber reasoned that both conspiracy
and incitement were continuing crimes, so that the pre-1994 journalism fell within
the ICTY’s temporal jurisdiction. However, in 2007 the Appeals Chamber held that

the Tribunal should have jurisdiction to convict an accused only where all of the ele-
ments required to be shown in order to establish his guilt were present in 1994. . . . The
existence of continuing conduct is no exception to this rule. . . . [E]ven where such
conduct commenced before 1994 and continued during that year, a conviction may
be based only on that part of such conduct having occurred in 1994.44

For this reason, it reversed the convictions for incitement to genocide based on pre-
1994 journalism. (The Appeals Chamber did permit pre-1994 conduct to be admitted
as evidence that might indicate the motive and meaning of conduct in 1994.) Two
judges dissented. Judge Pocar stated: ‘‘Insofar as offences are repeated over time and
are linked by a common intent or purpose, they must be considered as a continuing
offence, that is a single crime,’’ while Judge Shahabudeen argued that an incitement
operates gradually on its listeners as they process and assimilate its meaning, so that
even if the inciting speech occurred before 1994, its inciting effect continued into the
year of the genocide.45
All three defendants were also convicted of conspiracy to commit genocide.46 Here
the analysis was slightly different than in the incitement charge. The Trial Chamber
stated:

[C]onspiracy is an inchoate offence, and as such has a continuing nature that culminates
in the commission of the acts contemplated by the conspiracy. For this reason, acts of
conspiracy prior to 1994 that resulted in the commission of genocide in 1994 fall within
the temporal jurisdiction of the Tribunal.47

The theory that conspiracy is a continuing crime rests on a traditional view that the
conspiracy is renewed each day the conspirators maintain it. On appeal, the

42. U.N. SCOR, 49th Sess., 3453rd mtg. at 14-15, U.N. Doc. S/PV.3453 (Nov. 8, 1994), reprinted in 1
Virginia Morris & Michael Scharf, The International Criminal Tribunal for Rwanda (1997). See also
Raymond Bonner, Top Rwandan Criticizes U.N. Envoy, N.Y. Times, Nov. 8. 1994, at A11.
43. Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of
Punishment, 90 Am. J. Intl. L. 501, 506 (1996); Morris & Scharf, supra note 40, at 302-303.
44. Prosecutor v. Nahimana, Barayagwiza, & Ngeze, Case No. ICTR-99-52-A, Appeals Chamber Judg-
ment, ¶¶313, 317 (Nov. 28, 2007).
45. Id., Partly Dissenting Opinion of Judge Pocar, ¶2; Partly Dissenting Opinion of Judge Shahabud-
een, ¶¶24-26.
46. Prosecutor v. Nahimana, Barayagwize, & Ngeze, Case No. ICTR 99-52-T, Judgment and Sentence,
¶1055 (Dec. 3. 2003).
47. Id. at ¶1044.
108 3. International Criminal Tribunals

journalists’ conspiracy convictions were reversed on the facts, without reaching

this issue. While Judge Shahabudeen concludes from this that the Appeals
Chamber left the Trial Chamber’s conspiracy analysis intact,48 the earlier-
quoted dictum that all the elements of the crime must have taken place in
1994 casts doubt on whether the temporal jurisdiction issue for conspiracy
has truly been resolved.

d. The Work of the Tribunal

As in the case of ICTY, the best way to understand the work of the Rwandan Tri-
bunal is by navigating its Web site, http://unictr.org. Perhaps the most obvious
difference between the ICTR and ICTY is that the Rwandan Tribunal has completed
far fewer cases. As of April 2014, it has completed 44 cases, with 17 on appeal, and 4
still in progress.
Why has the Rwanda Tribunal proceeded so slowly? There are several reasons. First,
Rwanda’s own disaffection with the ICTR hampered cooperation in evidence gath-
ering. Defense lawyers have complained that Rwanda will provide only pro-
prosecution evidence. Second, the tribunal suffered from repeated administrative
failures. Third, proceedings involve translations back and forth between three
languages, English, French, and Kinyarwanda (Rwanda’s native tongue).
A final reason arises from a deliberate strategic choice by the tribunal prosecutors.
Believing that the trials would function best by creating a detailed historical record,
they elected to call very large numbers of witnesses. In addition, following the model
of the two rounds of Nuremberg trials, many of the cases involve multiple defendants,
representing major sectors of Rwandan society (military, government, media).
Mounting such complex cases has slowed down the trial process; many cases involve
hundreds of trial days.49
Jurisprudentially, the Rwanda Tribunal has made notable contributions. The crime
of genocide figured only rarely in the ICTY cases, in large part because it is far more
difficult to prove than war crimes or crimes against humanity. In Rwanda, unsurpris-
ingly, genocide has frequently been the key issue, and we owe much of contemporary
genocide jurisprudence to the ICTR. To take one notable example, the ICTR’s
Akayesu decision found that rape can be a form of genocide when it aims to impreg-
nate a woman with a baby whose father comes from another ethnic group or when
rape traumatizes the victim so that she loses the wish to procreate.50 The ICTR has also
broken new ground by finding that media figures can be complicit in genocide
through their publications and broadcasts.
Moreover, the Rwanda Tribunal secured an early guilty plea from Rwanda’s prime
minister, Jean Kambanda; he was the first head of government convicted
for international crimes. Théoneste Bagosora, who many believe to be the
principal architect of the genocide, was convicted in December 2008 and sen-
tenced to life.

48. Prosecutor v. Nahimana, Appeals Chamber Judgment, Partly Dissenting Opinion of Judge Sha-
habudeen, ¶31.
49. See Helena Cobban, Healing Rwanda, Boston Rev., Dec. 2003/Jan. 2004, at 1.
50. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶507-508 (Sept. 2, 1998).
E. The International Criminal Tribunal for Rwanda 109

e. Plea Bargaining

Unlike the ICTY, the practice of plea bargaining has been largely nonexistent at the
ICTR. This is for several reasons. As noted above, one of ICTR’s first cases involved
Prime Minister Jean Kambanda. Kambanda pleaded guilty, under the belief (encour-
aged by prosecutors) that he would receive a short sentence. Instead, prosecutors
recommended a life sentence. Needless to say, this outcome did not encourage other
defendants to plead guilty. A second reason that there have been few guilty pleas is
that defendants believe that their conditions of confinement are better in Arusha
than in the Malian prisons where most have been sent; as a result, they prefer to
prolong their stay in Arusha by going to trial. Furthermore, some of the defendants
are infected with HIV and believe that their lives will be so short that sentencing
discounts do not matter; they prefer to ‘‘roll the dice’’ at trial and hope for acquittal.51
Most interesting, however, is a fourth reason. It is conventional wisdom that most
criminal defendants have only one interest, reducing their sentences. How the law
characterizes their actions does not interest them unless a lesser offense means a
lesser sentence. According to Nancy Amoury Combs, matters are very different at
ICTR. Most defendants were prominent Hutus, and it mattered greatly to them
how the trial characterizes them:

The great majority of ICTR defendants . . . steadfastly deny that genocide occurred in
Rwanda, maintaining instead that the 1994 violence took place in the context of the
long-running war between the Rwandan government and the RPF. ICTR defendants do
not dispute that events spiraled out of control and that unfortunate and unnecessary
violence was targeted against Tutsi civilians. But they maintain that this violence consti-
tuted the excesses of a legitimate and spontaneous national defense effort, not a geno-
cidal plan to eliminate the Tutsi.52

As a result, as long as the charge against them is genocide, they reject sentencing
discounts. Apparently, these defendants are willing to sacrifice years in prison to avoid
being labeled ge´nocidaires.

NOTES AND QUESTIONS

1. The ICTR has experienced other problems. One is the same problem of ‘‘victor’s
justice’’ that dogged the Nuremberg trials. Hutus charge that many Tutsis in the RPF
committed war crimes and crimes against humanity, and believe that unless Tutsis are
tried, the ICTR is unfair and partial. However, efforts by the ICTR to investigate alleged
crimes by Tutsis were rebuffed by the Rwandan government, and prosecutor Carla del
Ponte claimed that political pressure from Rwanda led to her removal as prosecutor for
ICTR.53 Some observers believe that the lack of Tutsi defendants delegitimizes the
ICTR in the eyes of Hutus and reinforces their ideological view that no genocide
took place and that genocide charges are simply a conspiracy against them.
Do you believe it was essential for the ICTR to bring cases against Tutsis? How could
it do so without Rwandan cooperation? Or was it sufficient to try only ge´nocidaires,
given that the alleged crimes of the RPF are far smaller than the genocide?

51. Combs, supra note 16, at 118.

52. Id.
53. Cobban, supra note 49.
110 3. International Criminal Tribunals

2. A second problem has been the difficulty of making the tribunal’s work available
to Rwandans in Rwanda. For several years after the ICTR’s creation, its Web site was
only in French and English; although it now includes Kinyarwanda, document trans-
lation has proceeded slowly. Some observers, both in and out of Rwanda, have
charged that the real audience of ICTR is the international community, not Rwanda.
If so, is that a major objection? If the aims of an international tribunal include general
deterrence, making a historical record, and reinforcing the importance of
international norms, why isn’t the international audience as important as the Rwan-
dan audience? Or is this line of thought simply another manifestation of the same
‘‘who cares about Rwanda?’’ mentality that led the international community to ignore
the genocide while it was happening?
3. Critics have also charged that the ICTR has done an inadequate job of witness
protection, so that vulnerable witnesses such as rape victims, who had been promised
confidentiality, returned to Rwanda to discover that their identities had been
revealed. Even more problematic, rape victim witnesses who had been infected
with HIV by defendants found that the tribunal was providing free medication to
their rapists but would not pay for medication for them.54 The ICTR does, however,
run a medical clinic for witnesses, which has provided anti-retroviral treatment for
those who need it.

F. OTHER INTERNATIONAL TRIBUNALS

Several other international tribunals have also come into existence in recent years.
These include those in Sierra Leone, East Timor, Cambodia, and Lebanon.

1. Sierra Leone
The Special Court for Sierra Leone (SCSL) was established ‘‘to prosecute persons
who bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra
Leone since 30 November 1996, including those leaders who, in committing such
crimes, have threatened the establishment of and implementation of the peace
process in Sierra Leone.’’55 For almost ten years, the small West African country
was ravaged by an exceptionally brutal civil war involving pro-government forces
(the Civilian Defense Force, or CDF) and two rebel groups (the RUF and AFRC),
all of which were implicated in atrocities. The conflict was not so much about politics
as about control of Sierra Leone’s diamond mines, and the war was partly funded
through the sale of ‘‘conflict diamonds’’ or ‘‘blood diamonds.’’ All the factions
recruited child soldiers — many through kidnapping or the threat of death — who
were often kept in a state of perpetual intoxication on palm wine or drugs. Girls were
sexually enslaved or forced into ‘‘bush marriages’’ (discussed in detail in Chapter 23).
The forces of one faction, the RUF, were notorious for amputating limbs of civilians as
a terror tactic. Liberian president Charles Taylor sponsored and funded the RUF; he
was the best-known defendant before the Special Court. The war ended as UN peace-
keepers gradually succeeded in disarming the factions.

54. Samantha Power, Rwanda: The Two Faces of Justice, N.Y. Rev. of Books, Jan. 16, 2003.
55. Statute of the SCSL, Article 1.
 CHAPTER
16
The International Criminal Court

Nearly 60 years after the Nuremberg Tribunal pioneered the idea of individual
accountability for international crimes, the International Criminal Court (ICC)
came into being. It is the first permanent, rather than ad hoc, institution with juris-
diction over natural persons — not states or other entities — who commit the core
international crimes of genocide, crimes against humanity, war crimes, and, once
certain amendments are finally approved, the crime of aggression.
Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR), the ICC is not a creature of
the UN, although the UN Security Council is given certain privileges discussed within.
Crucially, it also differs from the ad hoc tribunals in that it is built upon the premise
that national and local efforts to achieve justice after atrocity must be the primary
mechanism of accountability. This international court will serve to ‘‘complement,’’
rather than preempt, municipal justice. Thus, states can, by exercising their ‘‘com-
plementarity option,’’ divest the ICC of its ability to pursue cases originating on the
states’ territory or concerning their nationals if they pursue the cases domestically.
But if a state is not ‘‘genuinely’’ willing and able to so, the ICC will work to ensure that
those most responsible for the gravest international crimes cannot operate with
impunity.
The treaty that establishes the ICC, the Rome Statute of the International Criminal
Court (the ‘‘Rome Statute’’ or the ‘‘ICC Statute’’), 1 came into force on July 1, 2002,
and only crimes committed after that date fall within the jurisdiction of the ICC. As of
January 2014, the ICC claimed 122 states parties, including all of South America,
nearly all of Europe and North America (with the exception of the United States),
and roughly half the countries of Africa. A further 31 countries, including Russia,
have signed but not ratified the Rome Statute; under customary international law,
these states have an obligation, at the least, to refrain from acts that would defeat the
object and purpose of the treaty.
In a relatively brief period, the ICC, which is based in The Hague, the Netherlands,
has moved from a concept to a multicultural institution reportedly employing more
than 700 persons and with a yearly budget exceeding $140 million.2 One should not
underestimate the extent of that achievement. One consideration, as explained by an
ICC judge,

1. U.N. Diplomatic Conference on Plenipotentiaries on the Establishment of an International

Criminal Court, U.N. Doc. A/Conf. 183/9th (2002).
2. See Jon Silverman, Ten Years, $900m, One Verdict: Does the ICC Cost Too Much? BBC News Mag.,
(Mar. 14, 2012). By contrast, the ICTY’s budget for the two-year period of 2010-2011 was $286 million and
it employed more than 800 staff. See The Cost of Justice, available at http://www.icty.org/sid/325.

779
780 16. The International Criminal Court

is the enormous difficulty in carrying out investigations and collecting evidence regard-
ing mass crimes committed in regions which are thousands of kilometers away from the
Court, of difficult access, unstable, and unsafe. Carrying out investigations in [areas of
ongoing armed conflict] entail[s] logistical and technical difficulties, unprecedented
problems which no other prosecutor or court is faced with. Another grim reality is the
notorious scarcity of financial and other resources available for investigations and other
work of the Court.3

Indeed, as Judge Kaul reflected, ‘‘I did not know how unbelievably difficult it would
be to build up a new international organization, especially such a complex one as the
ICC, from scratch to a one hundred percent, functioning institution.’’4
One of the central conflicts in the process leading to the Rome Statute concerned
how cases could come to the court. Powerful nations, led by the United States and
others, were worried that an independent ICC could pursue politically motivated
prosecutions of their nationals. Thus, the United States and others insisted that
the ICC’s jurisdiction be restricted to that which the UN Security Council referred
to it. Other states and non-governmental organizations (NGOs) objected to this
approach, noting that such a system would permit the permanent five (P-5) members
of the Security Council and their friends to avoid ICC jurisdiction by vetoing any
proposed referral of their actions to the ICC for investigation. These parties were
concerned that powerful states would thus insulate themselves from accountability
while imposing western justice on poor and less influential states. The objecting states
and NGOs pushed for a system whereby states parties and the ICC prosecutor himself,
on his own motion (proprio motu), could initiate examination of situations.
The Rome Statute splits the baby, thereby potentially frustrating all interested
parties: It authorizes cases to come to the ICC through referrals by the Security
Council and states parties and through the prosecutor’s own initiative. In response
to the concern that the independent and assertedly politically unaccountable pros-
ecutor could abuse her powers in initiating cases, however, the Rome Statute provides
that where the prosecutor proceeds proprio motu, she must secure judicial approval
under Article 15 before moving from a preliminary examination of the facts to a full
investigation.
Another conflict surrounded the extent of the ICC’s jurisdiction, and here another
compromise was crafted. The ICC was not given universal jurisdiction: Where a matter
arrives at the ICC through states parties’ referrals or the prosecutor’s proprio motu
powers, it must satisfy territorial and personal jurisdiction limits. That is, the situation
referred must either (1) have occurred on the territory of a state party, or concern the
actions of a national of a state party, or (2) have occurred on the territory of, or
concern the national of, a non-state party to the Rome Statute that gives its so-called
ad hoc consent under ICC Rule 12 to the ICC exercise of jurisdiction over a given
situation. The above limitations mean, in short, that if a despotic government does
not join the ICC or consent to its jurisdiction and confines its crimes to its own
nationals and territory, the ICC cannot prosecute — with one very significant excep-
tion. The Security Council is not bound by the nationality and territorial limitations
that control state- or prosecution-initiated cases, and it can therefore refer the posited
non-state party despot for ICC prosecution.

3. Hans-Peter Kaul, The International Criminal Court: Current Challenges and Perspectives, 6 Wash.
U. Global Stud. L. Rev. 575, 578 (2007).
4. Id. at 576.
16. The International Criminal Court 781

The Security Council is given another important power in the Rome Statute: It has
the power to defer investigations and prosecutions in one-year increments. Thus, the
Security Council is vested under Article 16 of the Rome Statute with the authority to
put investigations on hold pursuant to its powers, under Article VII of the UN Charter,
to ensure international peace and security. The Security Council is the only body
outside the ICC that has the official power to block an ICC investigation or prosecu-
tion for a period of time.
One of the most controversial consequences of the above-described jurisdictional
scheme is the reality that nationals of non-states parties may — and have been —
targeted by the ICC. As noted, the Security Council can — and has in the cases of
non-states parties Sudan and Libya — refer situations that concern high-ranking offi-
cials of non-states parties as investigative targets. And a non-party’s national may find
himself in the dock at the ICC where that national commits a qualifying crime on the
territory of a state party or a consenting state. This is a cause for grave concern among
those nations that have not chosen to join the ICC.
These jurisdictional compromises, as well as other provisions of the Rome Statute,
were designed to give the court independence — although, as we shall see, the ICC’s
lack of enforcement powers may make it vulnerable to politics in fact if not in theory.
Under the Rome Statute, the ICC is not beholden to the UN or to any particular
political constituency, and its states parties are numerous and diverse enough to, in all
likelihood, prevent the ICC from being co-opted by any particular political, regional,
or ideological faction. This independence, in turn, means that a new, non-sovereign
sheriff has emerged on the international stage and that states, NGOs, and other
international institutions and organizations will need to figure out how to alter
their policies and strategies to take account of this new force. The actors who previ-
ously decided whether justice would follow armed conflict or atrocity — the UN,
states, and to some extent civil society — have been augmented by an unaligned
and supposedly apolitical new friend of accountability. It is difficult to forecast the
long-term consequences of this disruption of the traditional political equilibrium, but
given that the ICC’s primary mission is to end impunity for international crimes, it is
likely to be more difficult for political actors to trade ‘‘justice for peace’’ by, for
example, offering international criminals amnesty or safe haven in exchange for
an agreement to relinquish power or to cease hostilities.
In terms of the ICC’s structure, its Assembly of States Parties (ASP) is responsible
for a wide range of administrative matters, including providing the officers of the
court with general guidelines, adopting the budget, increasing the numbers of
judges, and similar matters. The ASP is also the forum for adoption of amend-
ments to the ICC Statute. The ASP drafted and adopted the ICC’s Elements of
Crimes and the Rules of Procedure and Evidence. Each state party has one
representative to the ASP, and signatories of the Rome Treaty that have not yet
ratified it can send observers. The ASP also elects, and can remove, the ICC judges
and prosecutor.
The ICC itself is composed of four ‘‘organs’’: The Presidency, the Judicial Divisions,
the Office of the Prosecutor, and the Registry. The Presidency is responsible for the
overall administration of the ICC, with the exception of the Office of the Prosecutor.
The Presidency is composed of three judges of the court, elected to the Presidency by
their fellow judges. As of this writing, the President of the Court is Judge Sang-Hyun
Song (Republic of Korea).
The Judicial Divisions consist of 18 judges split into three ‘‘divisions’’: the Pre-Trial
Division, the Trial Division, and the Appeals Division. The judges who serve in these
divisions are elected by a two-thirds majority on secret ballot of the ASP, and the
782 16. The International Criminal Court

judges must be nationals of a state party.5 It has been argued that the requirement
that judges be elected by two-thirds of the states parties in the ASP ‘‘should ensure
that they will be, and be perceived as being, impartial and reflective of the judicial
community as it exists in most nations.’’6
The Office of the Prosecutor (OTP) is headed by the prosecutor, who is assisted by
one or more deputy prosecutors, all of whom must be of different nationalities. The
prosecutor and deputy prosecutors are elected by secret ballot of an absolute majority
of the Assembly of States Parties. The maximum term of the prosecutor and the
deputy prosecutors is nine years, and they may not be reelected. The current pros-
ecutor, Fatou Bensouda (The Gambia), was elected by the ASP and took office in June
2012, replacing the court’s first prosecutor, Luis Moreno-Ocampo (Argentina), at the
conclusion of his term. It is worth underscoring the OTP’s mission, as defined by the
ICC Statute: The OTP ‘‘shall be responsible for receiving referrals and any substan-
tiated information on crimes within the jurisdiction of the Court, for examining them
and for conducting investigations and prosecutions before the Court. A member of
the Office shall not seek or act on instructions from any external source.’’7 As impor-
tant, the prosecutor is required to ‘‘establish the truth’’ and to investigate ‘‘incrim-
inating and exonerating circumstances equally.’’8
The Registry is responsible for the non-judicial aspects of the administration and
servicing of the ICC. The Registrar, who exercises his functions under the authority of
the President of the Court, is elected by the judges for a term of five years; Herman von
Hebel (the Netherlands) currently holds the post. The ICC also includes a number of
semi-autonomous offices such as the Office of Public Counsel for Victims. These offices
fall under the Registry for administrative purposes but otherwise function as wholly
independent offices. The ASP has also established a trust fund for the benefit of victims
of crimes within the jurisdiction of the ICC and the families of these victims.
Some have cited the ICC Statute’s failure to create an independent defense
‘‘organ’’ analogous to the prosecutor’s office as a deficiency in the statute.9
A formal, truly independent institutional advocate for the defense is assertedly
needed ‘‘for structural balance.’’ While the prosecutor ‘‘may propose changes in
the Rules of Procedure and Evidence, and has a voice when others suggest changes,’’
and has a seat at the table in the budgetary process, there is no formal role in these
areas for the defense built into the ICC Statute.10 In response to concerns such as
these, the regulations of the court provided for the establishment of a permanent
Office of Public Counsel for the Defence (OPCD), touted as ‘‘a significant innovation
in the architecture of international criminal justice.’’11 The credo of the OPCD is ‘‘to
represent and protect the rights of the Defence in order to reinforce equality of arms
and to enable a fair trial.’’12 The OPCD is situated in the Registry, which will admin-
ister it; however, it ‘‘otherwise shall function as a wholly independent office.’’13 The

5. See ICC art. 36(4)(b), (6).

6. Richard J. Goldstone & Janine Simpson, Evaluating the Role of the International Criminal Court as
a Legal Response to Terrorism, 16 Harv. Hum. Rts. J. 13, 23.
7. ICC art. 42(1).
8. Id. art. 54(1).
9. Kenneth S. Gallant, Politics, Theory and Institutions: Three Reasons Why International Criminal
Defence Is Hard, and What Might Be Done About One of Them, 14 Crim. L.F. 317, 327 (2003).
10. Id. at 328.
11. International Criminal Court, Office of Public Counsel for the Defence, http://www.icc-cpi.int
(follow the links for ‘‘The Registry,’’ ‘‘Defence,’’ and ‘‘Office of Public Counsel for the Defence’’) (last
visited Feb. 1, 2014).
12. Id.
13. Id.
16. The International Criminal Court 783

OPCD became operational with the appointment in January 2007 of its principal
counsel, Xavier-Jean Keı̈ta (Senegal).
The ICC has received many thousands of complaints about alleged international
crimes in at least 139 countries. Eight situations that were referred to the ICC, all of
which are in Africa, have progressed to full investigations: the Democratic Republic of
Congo (DRC); Uganda; the Central African Republic (CAR); Darfur, Sudan; the
Republic of Kenya; the Libyan Arab Jamahiriya (Libya); the Republic of Côte d’Ivoire,
and Mali. Of the eight

 Two resulted from referrals by the UN Security Council (Darfur, Sudan and
Libya).14
 Four were situations referred to the ICC by states parties alleging international
crimes committed on their own territories — so-called self-referrals. These situa-
tions include Uganda, the DRC, CAR, and Mali.15 Note, however, that the OTP
has a policy of inviting states to self-refer where it has conducted a proprio motu
examination and has determined that there is a reasonable basis to proceed; the
volitional quality of these self-referrals ought to be considered in that context.
 Two were nominally initiated by the prosecutor (Kenya and Côte d’Ivoire). The
prosecutor used his proprio motu powers to initiate a preliminary examination into
the post-election violence in Kenya, and the court approved a full investigation
under Article 15. Côte d’Ivoire was, at the time, a non-state party and so could not
self-refer. Nevertheless it let the ICC know that it wished the ICC to assume
jurisdiction of crimes committed there since 2002, and the prosecutor’s com-
mencement of a case proprio motu was approved by the ICC. Côte d’Ivoire later
ratified the Rome Statute. This matter, then, in reality has the quality of a self-
referral rather than a proprio motu prosecution.

A number of referred situations have been either declined (Chad, Iraq, the Palesti-
nian Authority, and Venezuela) or are subject to ongoing analysis in the OTP (includ-
ing Afghanistan, Colombia, Georgia, Guinea, Honduras, Korea, and Nigeria).
A number of the cases that have been subject to lengthy ongoing analysis — such
as Colombia and Georgia — are situations in which domestic authorities are trying
to exercise their complementarity option and the OTP is monitoring the local cases to
ensure that they constitute ‘‘genuine’’ attempts to bring those most responsible to
justice.
Because the investigations and cases are proceeding apace, any summary we
attempt will be quickly outdated. Accordingly, we encourage readers to access the
ICC’s Web site for the status of outstanding matters to date,16 but we provide
the following snapshot to give readers a sense of the ICC’s docket. As of this writing,
the ICC, at the OTP’s request, has publicly issued arrest warrants or summons to
appear to 36 individuals:

 One, Thomas Lubanga Dyilo (Lubanga), from the DRC, was convicted after the
ICC’s first trial (January 2009-August 2011) of conscripting, enlisting, and using
child soldiers. He was sentenced to 14 years in prison and his appeal is under

14. U.N. S.C. Res. 1593 (June 13, 2005).

15. For a very brief summary of the situations, see Wasana Punyasena, Conflict Prevention and the
International Criminal Court: Deterrence in a Changing World, 14 Mich. St. J. Intl. L. 39 (2006).
16. See International Criminal Court, http://www.icc-cpi.int/EN_Menus/icc/Pages/default.aspx
(last visited Feb. 1, 2014).
784 16. The International Criminal Court

consideration. Another defendant, Germain Katanga (DRC) was convicted in

March 2014 as an accessory to the crime against humanity of murder and of
four war crimes; he awaits sentencing.
 Another individual, Mathieu Ngudjolo Chui (Ngudjolo) from the DRC, was, after
a two and one-half year trial, acquitted and released; the prosecution has
appealed this judgment. Upon his release, Mr. Ngudjolo applied for asylum in
the Netherlands, where he remains pending disposition of this application.
 Three more defendants, Jean-Pierre Bemba Gombo (Bemba) from the CAR,
Joshua Arap Sang (Sang) (Kenya), and Kenya’s sitting Deputy President William
Samoei Ruto (Ruto) are currently on trial or awaiting judgment.
 Five persons, including Bemba, are charged with obstructing justice in the course
of Bemba’s trial. These warrants were issued pursuant to the CAR situation and
included Bemba’s lead defense counsel, Aimé Kilolo Musamba (Kilolo), Bemba’s
defense team case manager, Jean-Jacques Mangenda Kabongo (Mangenda),
Fidèle Babala Wandu (Babala), and Narcisse Arido. They are charged with know-
ingly presenting false or forged evidence to the ICC and corruptly influencing a
witness to provide false testimony. Another arrest warrant was issued for
obstruction — that is, attempting to corruptly influence the testimony of three
ICC witnesses — in the Kenya situation for Walter Osapiri Barasa (Barasa).
 Two persons are presently scheduled to be tried in 2014: Abdallah Banda Abakaer
Nourain (Banda) (Darfur), and Kenya’s current president, Uhuru Muigai Kenya-
tta (Kenyatta).
 Four defendants — Callixte Mbarushimana (DRC), Bahir Idriss Abu Garda (Abu
Garda) (Sudan), Henry Kosgey, and Mohammed Hussein Ali (Kenya) — were
arrested but the ICC Pre-Trial Chamber refused to confirm the charges brought
by the prosecution, meaning that these cases cannot proceed to trial. In one case,
that of Laurent Gbagbo (Côte d’Ivoire), the Pre-Trial Chamber held a confirma-
tion hearing but adjourned the hearing and requested the prosecutor to consider
providing further evidence or conducting further investigation into the charges.
 Bosco Ntaganda (DRC) surrendered himself to the custody of the court is await-
ing a confirmation of charges hearing. Also awaiting confirmation on the obstruc-
tion charges are Bemba, Kilolo, and Babala (CAR).
 Ten persons named in ICC warrants or summons are still at large: Sylvestre
Mudacumura (DRC); Joseph Kony, Okot Odhiambo, Dominic Ongwen
(Uganda); Ahmed Harun, Ali Kushayb, Omar Al Bashir, and Abdel Raheem
Muhammad Hussein (Sudan); Charles Blé Goudé (Côte d’Ivoire); and Barasa
(Kenya). (Otti (Uganda) is also a fugitive but is believed dead.)
 Two persons who are subjects of ICC arrest warrants have been arrested and are
being held by domestic authorities, and have not been turned over to the ICC:
Saif al-Islam Gaddafi (Libya) and Simone Gbagbo (Côte d’Ivoire). Two more
persons have been arrested by states parties and will shortly be turned over to
the Court: Mangenda and Narcisse (CAR).
 Chambers ruled inadmissible one case in which an arrest warrant had been
issued, involving Abdullah Al-Senussi (Libya), meaning that the case is left to
prosecution by Libyan domestic authorities.
 Two cases in which arrest warrants had been issued, involving Raska Lukwiuya
(Uganda) and Muammar Gaddafi (Libya), were terminated after the suspects
died. After confirmation, the case against Saleh Mohammed Jerbo Janus
(Sudan) was terminated due to his death. Vincent Otti (Uganda) has been
reported killed, but his case has yet to be dismissed.
16. The International Criminal Court 785

 The OTP withdrew charges against Francis Kirimi Muthaura (Kenya), after his
arrest and a confirmation of charges, because the available evidence no longer
supported the charges beyond a reasonable doubt.17

This survey illustrates that the ICC is fully engaged in its mission. The question now
is whether it will fulfill the hopes of its champions: bringing to justice those persons
most responsible for the worst crimes known to humankind when individual states
with jurisdiction over these offenses are unable or unwilling to bring such persons to
the dock. Will the ICC, in such circumstances, prove to be an efficient and effective
way to guarantee criminal accountability and thus prevent future crimes of aggres-
sion, war crimes, crimes against humanity, and genocide?
Few nations voted against the ICC’s formation: China, Iraq, Israel, Libya, Qatar, the
United States, and Yemen. And the ICC Statute has attracted an impressive number of
states parties — 122 at present — in a short period of time. Many commentators
expected that only the ‘‘angelic States — the Scandinavians, Canada, the Nether-
lands, and so on — would join the Court’’ because in doing so they subject themselves
to ICC jurisdiction.18 However, over time, an ‘‘astonishing thing happened. The very
States expected to steer clear of the Court because of their obvious vulnerability to
prosecution started to produce instruments of ratification at the United Nations
headquarters.’’19 Why would the heads of states in countries experiencing internal
armed conflict wish to open themselves up to potential criminal sanction by an inter-
national organization they cannot control? Some view this as a pre-commitment
strategy, whereby states intentionally use the ICC ‘‘to tie their own hands as they
make tentative steps toward conflict resolution.’’20 These states may ratify the
Rome Statute because ‘‘they view the Court as a promising and realistic mechanism
capable of addressing civil conflict, human rights abuses and war.’’21 Others tell a
more cynical story: that some states are joining so they can make self-interested ‘‘self-
referrals’’ — that is, ask the ICC to take jurisdiction over rebel groups that threaten
their government — and that they would prefer the ICC expend the resources and
political capital to deal with. Those states that do so, however, may wish to take a
cautionary note from Côte d’Ivoire, which declared itself amenable to ICC jurisdic-
tion under the presidency of Laurent Gbagbo. Eight years later, Mr. Gbagbo finds
himself under arrest by the ICC for international crimes, fruitlessly arguing that Côte
d’Ivoire’s ad hoc consent to ICC jurisdiction did not extend to his alleged crimes.
One must also acknowledge that many of the world’s most populous and powerful
countries either have not signed the ICC Statute (for example, China, India, Indo-
nesia, Pakistan, and Turkey), have ‘‘unsigned’’ it after initially signing (Israel and the
United States), or have signed but not ratified it (for example, Russia). Indeed, only 8
of the 20 most populous nations in the world are states parties to the ICC, and none of
the top 4 countries in terms of population — together accounting for almost half of

17. Prosecutor Bensouda noted other reasons for the withdrawal of charges: ‘‘the fact that several
people who may have provided important evidence regarding Mr. Muthaura’s actions have died, while
others are too afraid to testify for the Prosecution’’; ‘‘the disappointing fact that the Government of Kenya
failed to provide my Office with important evidence, and failed to facilitate our access to critical wit-
nesses’’; and the decision to drop a key witness after he recanted a crucial part of his evidence and
admitted to taking bribes. Statement by ICC Prosecutor on the Notice to Withdraw Charges Against
Mr. Muthaura (Mar. 3, 2013).
18. Editorial, International Criminal Court: The Secret of Its Success, 12 Crim. L.F. 415, 418 (2002).
19. Id.
20. Beth Simmons & Allison Danner, Credible Commitments and the International Criminal Court 5
(July 30, 2009).
21. Editorial, supra note 18, at 418.
786 16. The International Criminal Court

the world’s population — have joined. 22 This situation reflects, to some extent, the
fact that in international practice, states can be cautious about making important,
potentially costly, and permanent commitments of this type. It is often the case that
new institutions gather support over years, not months. Some non-states parties have
claimed a need for time to consider the treaty or to reconcile their domestic law and
institutions to the ICC Statute. Certainly, the fact that a given state has not signed or
ratified the ICC Statute does not necessarily imply hostility toward the ICC, nor does it
signal a lack of enthusiasm about the goals of the institution.
Yet this circumstance creates both symbolic and practical problems. First, the
fundamental rationale of the court is that there is a global consensus that the crimes
within the ICC’s jurisdiction claim the condemnation of all of ‘‘humanity’’ and as
such it is appropriate that they be the subject of international prosecutions in the
event that states with jurisdiction over them fail to enforce international standards.
Yet, as the Indian Delegation noted when the ICC Statute was adopted, ‘‘[w]e are
reminded again and again that the ICC is being set up to try individuals who, on the
grossest scale, violate the rights of individuals. It will act, in the name of humanity, to
protect the interests of humanity. . . . And we are now about to adopt a Statute to
which the Governments who represent [half] of humanity would not be a party.’’23
Second, the ICC’s ultimate effectiveness will hinge in part on the degree to which it
will be able to entice non-states parties to join the court or — perhaps more crucially
at this point — at least to cooperate with it. As Judge Kaul has explained:

As the Court generally has no executive powers and no police force of its own, it is totally
dependent on full, effective and timely cooperation from states parties. As foreseen and
planned by its founders, the Court is characterized by the structural weakness that it does
not have the competencies and means to enforce its own decisions.24

As we shall see, many states parties have declined to fulfill their responsibility to
cooperate in the apprehension of President Al Bashir of Sudan; non-states parties
are not even obliged to do so. In cases where a Security Council resolution has not
referred the case to the court, the ICC cannot claim a right to the cooperation of non-
states parties in securing evidence, apprehending offenders, and funding the ICC’s
operations. Even where the Security Council has made a referral, it does not have to
require all states parties to the UN Charter to cooperate in apprehending those
eventually charged; such was the case in the Sudan and Libya referral resolutions.
The Security Council’s exhortation to all states to arrest Al Bashir has not eventuated
in his apprehension, and that body has declined thus far to take more decisive action.
Where non-states parties are truly concerned about possible abusive prosecutions and
thus are reluctant to aid the fledgling institution, the court may be further stymied in
its efforts to secure justice for the victims of horrific crimes.

22. Compare International Criminal Court, The States Parties to the Rome Statute, http://www
.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20sta-
tes%20parties%20to%20the%20rome%20statute.aspx (last visited Feb. 1, 2014), with GeoHive, Current
World Population, http://www.geohive.com/earth/population_now.aspx (last visited Feb. 1, 2014).
23. Explanation of Vote by Mr. Dilip Lahiri, Head of Delegation of India, on the Adoption of the
Statute of the International Court (July 17, 1998), http://www.un.int/india/ind272.htm (last visited
Feb. 1, 2014).
24. Kaul, supra note 3, at 578. Prosecutor Luis Moreno-Ocampo expressed it thus: ‘‘The issues that I
face as an international prosecutor are different than those of a national prosecutor. A prosecutor in the
United States does not have to convince . . . the chief of police to follow his instructions. He has a police
force at his disposal. I have none of this. In effect, I am a stateless prosecutor.’’ Luis Moreno-Ocampo,
Integrating the Work of the ICC into Local Justice Initiatives, 21 Am. U. Intl L. Rev. 497, 502 (2006).
16. The International Criminal Court 787

Although critical to its ongoing success, inducing additional states to join, or coop-
erate with, the ICC regime may be challenging. A number of the holdouts object to
important provisions of the Rome Statute that they claim render the ICC’s function-
ing contrary to international law and subject to unchecked abuses of its broad powers
for political purposes. Two institutional features that come in for the lion’s share of
criticism are (1) the prosecutor’s power to initiate proprio motu examinations of
alleged crimes within the jurisdiction of the ICC without state party or UN Security
Council referrals, and (2) the jurisdiction that the ICC Statute gives the court over the
nationals of non-states parties in certain circumstances.
The United States has been one such holdout. It is worth examining its position
because it has been one of the most vigorous advocates for international criminal
accountability, having spearheaded the Nuremberg and Tokyo Tribunals and strongly
supported the creation and functioning of the ICTY and ICTR.25 The United States’
position has shifted from a deep antagonism to the very idea of the court,26 to a will-
ingness as a Security Council member to allow the Darfur referral to go forward and to
actively support the referral of the Libyan situation to the ICC. That said, many believe
that the United States, at present, is unlikely to join the ICC for a variety of reasons.27
The first is the traditional — and bipartisan — reluctance of the United States to
embrace permanent supranational courts and institutions. Further, many U.S. objec-
tions to the treaty are fundamental. The principal objections continue to center on
concerns about limitations the ICC Statute imposes on national sovereignty (because
the threat of prosecution may preclude action that national security imperatives might
otherwise demand); a fear of politically motivated prosecutions (by a prosecutor with an
anti-U.S. or anti-Western bias); doubt that a criminal proceeding in the ICC would
provide the same degree of due process and personal protection afforded in U.S. courts;

25. See Hon. Richard Goldstone, Historical Evolution — From Nuremberg to the International
Criminal Court, 25 Penn. St. Intl. L. Rev 763, 765 (2007).
26. For example, on August 2, 2002, President George W. Bush signed into law the ‘‘American Service-
member’s Protection Act’’ (ASPA), which includes (1) a prohibition on U.S. cooperation with (including
extradition to) the ICC and a bar on provision of support to the ICC; (2) a restriction on U.S. participation
in UN peacekeeping operations absent an exemption of U.S. personnel from ICC jurisdiction; (3) the
prohibition of direct or indirect transfer of classified military national security information (including law
enforcement intelligence) to the ICC; and (4) preauthorized executive authority to free members of the
armed forces of the United States and certain other persons detained or imprisoned by or on behalf of the
ICC (the so-called Hague Invasion Clause). See 22 U.S.C. §§7423-7427. Originally, the ASPA contained a
qualified prohibition of U.S. military assistance to states parties to the ICC who did not conclude agree-
ments shielding U.S. actors on their territories from ICC jurisdiction (so-called Article 98 Agreements);
subsequent legislation threatened nonmilitary aid cutoffs as well. The military aid cutoff was deemed
counterproductive and was repealed. The ASPA does give the president the power to waive its operative
provisions. See, e.g., id. §7422. And it states that nothing in its provisions would prohibit the United States
from ‘‘rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milo-
sevic, Osama bin Laden, other members of al Qaeda, leaders of Islamic Jihad, and other foreign nationals
accused of genocide, war crimes or crimes against humanity.’’ Id. §7433.
27. On December 31, 2000, President Clinton signed the Rome Statute on behalf of the United States.
He stated, however, that given U.S. concerns about ‘‘significant flaws’’ in the treaty: ‘‘I will not, and do not
recommend that my successor submit the Treaty to the Senate for advice and consent until our
fundamental concerns are satisfied.’’ Statement by the President, The White House, Office of the
Press Secretary, Signature of the International Criminal Court Treaty (Dec. 31, 2000). The Clinton
administration reasoned that, as a signatory of the treaty, the United States could attend the meetings
of the Assembly of States Parties and attempt to continue to influence the structure and conduct of the
ICC. However, Clinton’s successor, President George W. Bush, ‘‘unsigned’’ the treaty, informing the UN
Secretary-General on May 6, 2002, that ‘‘the United States does not intend to become a party to the treaty’’
and, accordingly, that ‘‘the United States has no legal obligations arising from its signature.’’ Press
Statement, U.S. Dept. of State, International Criminal Court: Letter to UN Secretary-General Kofi
Annan (May 6, 2002). In evaluating objections to the treaty, readers are encouraged to revisit this strategic
choice, evaluating for themselves the (asserted) dangers the ICC poses to U.S. national interests and the
likely efficacy of continuing engagement versus outright opposition in protecting those interests.
788 16. The International Criminal Court

and the possibility that members of the U.S. military engaged in international opera-
tions, notably peacekeeping and humanitarian missions authorized under Chapter VII
of the UN Charter, might be prosecuted before the ICC even though the United States is
not a party to the Rome Statute. Finally, to the consternation of many U.S. senators, the
ICC Statute does not permit states parties to make reservations to it (with one notable
exception28); thus, the treaty is largely a take-it-or-leave-it proposition.
Some might argue that the United States’ non-party status is an unfortunate cir-
cumstance for the ICC because it must do without the United States’ power, its
financial and law enforcement resources, and the leadership role the United States
has often assumed in helping to craft and enforce international criminal law norms.
Others might argue that were the United States to join the court, and become its
major donor, it could impair the court’s credibility as a truly independent organ,
unaccountable to any other international body or any one superpower.
It remains to be seen whether the court can, through able, politic, and important
prosecutions and judicious declinations, win the trust, confidence, and ultimately the
signatures or accessions of non-states parties — particularly those wealthy and populous
countries that could do much to support and promote the ICC’s mission. Much would
seem to depend upon whether the fears of those nations who believe that the ICC Statute
is subject to grievous abuse are realized. Accordingly, in the following materials, we will
explore how the ICC is designed and has functioned over its brief existence. While the
entire ICC Statute is a worthy read (and is posted on our Web site), be sure to read
carefully Articles 1 through 24 and 53 before attempting to tackle materials that follow.

A. A PRIMER ON JURISDICTION, ADMISSIBILITY,

AND UN SECURITY COUNCIL ROLE

For the ICC to investigate or exercise jurisdiction over a case, a number of requisites
must be met. As a preliminary matter, one must understand the terminology used to
describe these requisites. The ICC Statute distinguishes between two concepts: juris-
diction and admissibility. In this section we will provide the basics regarding these
critical concepts and discuss as well the potentially important role that the UN Secu-
rity Council may play in ICC proceedings.

1. Jurisdiction

‘‘Jurisdiction’’ refers to the legal limits of the ICC’s reach and is expressed in terms of
jurisdiction over time (jurisdiction ratione temporis), subject matter (jurisdiction ratione

28. The Rome Statute provides for one possible reservation in ICC Article 124, which states that ‘‘a
State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into
force of this Statute for the State concerned, it does not accept the jurisdiction of the Court’’ with respect
to the war crimes described in ICC Article 8 ‘‘when a crime is alleged to have been committed by its
nationals or on its territory.’’ Note that this war crime jurisdictional ‘‘opt-out’’ extends for seven years after
the ICC Statute enters into force for that joining state party. Only Colombia and France entered
Article 124 reservations to their ratifications. France subsequently withdrew its opt-out and Colombia’s
expired on November 1, 2009. ICC Article 123(1) required that the UN convene an ICC Review Confer-
ence seven years after the entry into force of the statute. The only item required to be on the agenda was
Article 124’s war crimes opt-out. The UN convened its Review Conference in Kampala, Uganda, on May
31-June 11, 2010. There, the participants declined to delete ICC Article 124’s opt out.
OPTIONAL - for those with no background in int'l law

CHAPTER
2
International Law Preliminaries

This chapter sets out some basics of international law — the minimum background
necessary to understand the materials that follow. We begin by exploring the standard
‘‘classical’’ ideas underlying international law and how they have evolved since World
War II (Section A). Then we introduce the basic sources of international law: treaties,
custom, general principles, judicial decisions and writings of jurists, and so-called
peremptory norms (Section B). After a brief discussion of the perennial question
of whether international law is ‘‘real’’ law (Section C), we conclude by exploring the
relationship between international law and the law of individual countries and, in
particular, the United States (Section D).
Obviously, this chapter cannot substitute for a course in international law, and
some of the most crucial topics in international law do not appear here. For one
thing, we focus only on public international law — international law involving relations
among states and international organizations (such as tribunals). We thus omit the
elaborate body of doctrines and procedures that govern private law litigation
concerning transnational legal issues. For another, we omit discussion of
international economic law, including issues of trade law and international sanctions,
which can sometimes have criminal aspects. Likewise, we omit crucial subjects like the
law of the sea, international environmental law, and the law of international institu-
tions such as the United Nations or the World Trade Organization. This
chapter covers only some topics necessary to study international criminal law,
which itself forms a relatively small part of international law as a whole.
A point about terminology: In international law — we sometimes call it IL for
short — the word state always means an independent, sovereign country or nation
such as Canada, China, or Côte d’Ivoire. When we talk about the 50 U.S. states
and the context might be unclear, we say U.S. states. International lawyers call state
law that applies within a state national or municipal or domestic law. We generally use the
phrase domestic law. International agreements and judicial opinions usually capitalize
State; we generally do not do so except in quotations.

A. THE CLASSICAL PICTURE OF INTERNATIONAL LAW

In its classical formulation, international law governs the relations among sovereign
states. As a kind of ‘‘public’’ law, it addresses relationships between states and

27
28 2. International Law Preliminaries

individuals only incidentally or secondarily. Some international law scholars empha-

size this difference by distinguishing between ‘‘horizontal’’ relations of one state to
another and ‘‘vertical’’ relations between a state and its citizens or subjects. In the
most restrictive view of IL, only horizontal relations count. This classical picture
assumes the following:

1. International law governs the relations among states, not between states and their
citizens or subjects. IL is to the ‘‘society of states’’ what domestic law is to the
persons within a state. In other words, states, not people, business corporations,
or international organizations, are the ‘‘citizens’’ of international legal society.
2. Each state has exclusive sovereign authority over its own territory and the persons
within that territory.
3. No state has authority over another sovereign state. All states are equal, and no
state has authority within the territory of another sovereign state.
4. There is no world government.
5. Therefore, rules of international law exist only when sovereign states consent to
them. They can consent explicitly, by making treaties (also known as conventions
or international agreements — for our purposes, the terms are interchangeable). Or
states can consent implicitly, by coordinating their behavior through custom. As
we will see, treaty law and customary international law are the two most important
forms of IL.
Because rules of IL require state consent, the classical picture of IL is
sometimes called the consensual model of IL.
6. Individuals have no rights or obligations under IL unless states grant the rights or
create the obligations, either through treaty or custom. International law in its
most restrictive form does not ‘‘recognize’’ individuals, only states; and individ-
uals often lack standing to raise claims before international bodies.

Reviewing these six principles, it becomes evident that the idea of international
criminal law, which deals entirely with individuals and often crosses state boundaries,
fits badly with the classical picture of IL. And indeed, prior to World War II, there was
little international law, either conventional or customary, on the subject. As we will
see, the rise of international human rights and international criminal law after World
War II, as well as the creation of the United Nations (UN), added new principles to
the corpus of international law to such an extent that the classical picture no longer
accurately portrays IL today. This is especially true of human rights law and
international economic law: In both these subjects, many argue that the six classical
assumptions no longer accurately describe the law.

1. Historical Overview

The term international law is more or less interchangeable with the older term law of
nations. The newer term was coined in 1780 by the English jurist and philosopher
Jeremy Bentham, who thought that it is less likely than law of nations to be confused
with domestic law. Law of nations translates the Latin phrase jus gentium, a Roman law
concept that referred to the body of law common to all the peoples in the Roman
Empire.
The classical picture of international law is the product of a specific time and place:
Europe in the age of the nation-state, which began roughly in the seventeenth cen-
tury. The European origin of international law turns out to be crucial if we wish to
A. The Classical Picture of International Law 29

understand political debates about IL today. Among other things, it helps explain the
resentment that former European colonies occasionally express toward international
criminal enforcement. We offer the following view to stimulate discussion and
analysis.1

a. Westphalian Sovereignty

The classical picture of a world with sovereign states as the primary legal actors
began to emerge at the end of the Thirty Years’ War (1618-1648), the bloodiest and
most catastrophic war in European history before the twentieth century. European
society before the Thirty Years’ War was not organized into national states as we know
them now. Rather, Europe was a political hodgepodge of overlapping dukedoms and
principalities, organized loosely into larger political units with crisscrossing loyalties
and uncertain jurisdictional boundaries. The war began as a civil war between Pro-
testants and Catholics in Germany, but eventually it embroiled most European powers
in a complex struggle for power, territory, and influence. It ended with the Peace of
Westphalia, an elaborate treaty that settled the remaining territorial claims. Crucially,
the parties to the treaty realized that their only hope for peace lay in an agreement
that rulers would not interfere with each other’s government of their own territory.
According to Article 64, all the 300 small principalities that made up the Holy
Roman Empire ‘‘are so establish’d and confirm’d in their antient Rights . . . that
they never can or ought to be molested therein by any whomsoever upon any manner
of pretence.’’2 Article 65 permitted the principalities to ‘‘make Alliances with Stran-
gers for their Preservation and Safety,’’ notwithstanding their allegiance to the
emperor. Thus was born the modern legal doctrine of sovereignty.
These clauses are, symbolically at least, the origin of the doctrine of sovereignty
spelled out in the second and third principles of the classical doctrine of IL. Each state
is sovereign over its own territory, no state can exercise sovereignty within another
state’s territory, and states have the right to form their own foreign policies, including
decisions about which treaties to enter into with other states. For this reason, the
classical picture is often called Westphalian sovereignty. From the point of view of clas-
sical international law, how sovereignty gets parceled up within a state is irrelevant
from the point of view of other states: The basic legal fiction is that every state con-
fronts every other state as a single, undivided sovereign entity. The inner workings of
each state remain a ‘‘black box’’ to every other state.
The following is often described as the leading case on the nature of territorial
sovereignty under the Westphalian conception.

1. A rich literature is emerging on the history of international law, reflecting diverse perspectives.
Generally, see Bardo Fassbender, Anne Peters, Simone Peter & Daniel Högger, eds., The Oxford Hand-
book of the History of International Law (2012), and the Journal of the History of International Law/
Revue d’histoire du droit international (Brill/Nijhoff). See also Alexander Orakhelashvili, The Idea of
European International Law, 17 Eur. J. Intl. L. 315 (2006); Anthony Anghie, Imperialism, Sovereignty,
and the Making of International Law (2005); Brett Bowden, The Colonial Origins of International Law:
European Expansion and the Classical Standard of Civilisation, 7 J. Hist. Intl. L. 1 (2005); Wilhelm
Grewe & Michael Byers, The Epochs of International Law (2000); Martti Koskenniemi, The Gentle
Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (2002).
2. The Treaty of Münster (a city in Westphalia) may be found at the Web site of the Avalon Project of
Yale Law School, http://avalon.law.yale.edu/17th_century/westphal.asp.
A. The Classical Picture of International Law 39

whom prefer to settle most of their grievances through negotiation rather than liti-
gation. In its 80-year history, the ICJ and its predecessor have rendered fewer than 200
decisions, most of them concerning boundary disputes.
However, in recent years the ICJ’s docket has been filled with high-profile cases,
including some important international criminal law cases concerning jurisdiction,
allegations of genocide filed by Bosnia against Serbia and by the Democratic Republic
of Congo against Rwanda, and some actions by Serbia against other countries growing
out of the Balkan wars of the 1990s.11
It is difficult to judge the full effect of the United Nations on the classical West-
phalian picture of IL. The UN was founded by states that jealously guarded their own
sovereignty, as states continue to do today. Among the most important provisions of
the Charter are Article 2(1), which enshrines ‘‘the principle of the sovereign equality
of all its Members’’; Article 2(4), which forbids states from using force or the threat of
force against the territorial integrity or political independence of any state; and
Article 51, which preserves each state’s inherent right of self-defense.
At the same time, however, the veto power of the Security Council’s permanent
members ensures that in a world of ‘‘sovereign equality,’’ some states are more equal
than others. More important, it seems clear that the UN has profoundly altered the
structure of international decision making and made unilateralism less legitimate.
In this way, it indirectly limits states’ sovereign powers. Finally, as we shall see, the UN
has become an important source of customary international law.

2. The Modified Classical Picture of International Law

In a widely publicized 1999 speech, then-Secretary-General of the UN Kofi Annan

suggested that

State sovereignty, in its most basic sense, is being redefined by the forces of globalization
and international cooperation. The State is now widely understood to be the servant of its
people, and not vice versa. At the same time, individual sovereignty — and by this I mean
the human rights and fundamental freedoms of each and every individual as enshrined
in our Charter — has been enhanced by a renewed consciousness of the right of every
individual to control his or her own destiny.12

Annan added, however, that these changes ‘‘do not lend themselves to easy inter-
pretations or simple conclusions.’’
Where have these changes in the international legal order left us? The easiest way to
see the changes is by reviewing the elements of the classical picture, noting the
exceptions along the way.

1. Public international law still governs the relations among states but increasingly
addresses questions about how states deal with individuals — in particular their
own citizens, in such diverse fields as including environmental law, laws of war and
humanitarian law, human rights law, and international criminal law, all of which
do protect rights and impose obligations on persons.

11. Students should consult the ICJ’s Web site, http://www.icj-cij.org. Examine the home page and
the ‘‘Cases’’ section for an overview of the court’s activities.
12. Secretary-General Presents His Annual Report to General Assembly, UN Press Release SG/
SM7136, GA 9596 (Sept. 20, 1999), available at http://www.un.org/News/Press/docs/1999/
19990920.sgsm7136.html.
40 2. International Law Preliminaries

2. Each state has exclusive sovereign authority over its own territory and citizens —
except that states have no authority to launch aggressive wars, nor to violate basic
human rights, nor to sponsor actions that constitute international crimes (among
other exceptions).
3. No state has authority over another sovereign state — except that the UN Security
Council can authorize action on the territory of states against threats to
international peace and security.
4. There is no world government — but there are a growing number of regional and
worldwide organizations that sometimes assume limited governmental functions.
5. Therefore, rules of international law exist only when sovereign states consent to
them — except, as we shall see, that agreements to violate basics of the
international order (such as the prohibition on genocide or on aggressive war)
have no legal force even if states consent to them.
6. Individuals do have rights and obligations under IL insofar as states have recog-
nized such rights and obligations through treaties or customary international law.
It is still true, however, that normally individuals lack standing to raise claims of IL
before international bodies — except bodies such as the European Court of
Human Rights.

We should emphasize that this modified classical picture of international law holds
to a greater extent in some areas of law than in others. In international trade law, for
example, states have accepted a greater role for individuals and individual participa-
tion than in international criminal law; and European Union (EU) members have
likewise ceded more sovereignty to centralized EU institutions than the classical
picture (even the modified classical picture) may suggest.13

B. THE SOURCES OF INTERNATIONAL LAW

We turn next to the sources of international law, in order to understand what IL

consists of. The following documents are two of the most influential statements of the
sources of international law.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 38

1. The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;

13. For scholarly discussion of the uncertain hold of Westphalian sovereignty, see Stephen D. Krasner,
Sovereignty: Organized Hypocrisy (1999); John H. Jackson, Sovereignty-Modern: A New Approach to an
Outdated Concept, 97 Am. J. Intl. L. 783 (2003).
B. The Sources of International Law 43

l. General principles as secondary source of law. Much of international law, whether

customary or constituted by agreement, reflects principles analogous to those
found in the major legal systems of the world, and historically may derive from
them or from a more remote common origin. General principles common to systems
of national law may be resorted to as an independent source of law. That source of law
may be important when there has not been practice by states sufficient to give the
particular principle status as customary law and the principle has not been legislated
by general international agreement.
General principles are a secondary source of international law, resorted to for
developing international law interstitially in special circumstances. For example,
the passage of time as a defense to an international claim by a state on behalf of a
national may not have had sufficient application in practice to be accepted as a rule of
customary law. Nonetheless, it may be invoked as a rule of international law, at least in
claims based on injury to persons, because it is a general principle common to the
major legal systems of the world and is not inappropriate for international claims.
Other rules that have been drawn from general principles include rules relating to the
administration of justice, such as the rule that no one may be judge in his own cause;
res judicata; and rules of fair procedure generally. General principles may also pro-
vide ‘‘rules of reason’’ of a general character, such as acquiescence and estoppel, the
principle that rights must not be abused, and the obligation to repair a wrong.
International practice may sometimes convert such a principle into a rule of custom-
ary law. . . .

NOTES AND QUESTIONS

1. Article 38 of the ICJ Statute sets out the sources of law that the ICJ will use in
resolving disputes brought before it. Strictly speaking, it binds only the ICJ and does
not purport to set out a universal system of international law. Nevertheless, because
the ICJ settles disputes about international law among consenting UN members, its
statute has had great persuasive power in the delineation of the sources of IL. The
Restatement (Third) of the Foreign Relations Law of the United States, composed by
the influential American Law Institute, represents a dominant, mainstream view of IL
in the postwar world. Do the ICJ Statute and the Restatement identify the same
sources of IL? Do they accord different weights to different sources?
2. Both documents single out two fundamental sources of IL: treaties (agreements)
and custom. Both acknowledge the role of so-called general principles — the ICJ
Statute regarding them as a primary source of IL and the Restatement regarding
them as a supplementary, interpretive source. The ICJ Statute also recognizes the
opinions of highly qualified commentators as a supplemental source. A few com-
ments are in order about each of these.

1. International Agreements (Treaties)

An international agreement, also known as a treaty or convention (the words treaty and
convention are synonyms in IL; covenant, protocol, and pact are also synonyms for treaty),
is an explicit agreement among its states’ parties. The IL rules about treaties are
themselves codified in a treaty, the Vienna Convention on the Law of Treaties
(VCLT), which was adopted in 1969 and entered into force in 1980. The United
44 2. International Law Preliminaries

States has not ratified the VCLT but generally accepts that many of its provisions
represent a codification of binding, customary international law.
The two most basic principles in the VCLT are simple: First, under Article 6,
‘‘[e]very State possesses capacity to conclude treaties’’; and second, under Article 26,
‘‘[e]very treaty in force is binding upon the parties to it and must be performed by
them in good faith.’’ This latter principle is often referred to by the Roman law
maxim, pacta sunt servanda (agreements must be kept).
Treaties are negotiated and signed by governmental representatives. To become
binding, the states must then formally accept or ratify a treaty. (Exceptionally, treaties
themselves can stipulate alternative means of acceptance.) What constitutes ratifica-
tion in a given state depends on the state’s domestic law. Thus, for example, in the
United States, a treaty signed by the executive does not take effect until after two-
thirds of the Senate gives its advice and consent to the treaty and the president then
formally ratifies it.
A treaty normally does not come into force — that is, bind the parties as a matter of
IL to all the treaty’s particulars — until a certain number of states have ratified it, thus
becoming parties to it. The number of states that must join prior to the treaty ‘‘enter-
ing into force’’ is generally spelled out in the treaty itself. Students may encounter
another word — accession — in connection with treaty membership. Accession, which
has the same effect as ratification, simply means that a state has agreed to be bound by
the treaty after the treaty has come into force. According to Article 18 of the VCLT,
signing a treaty obligates states not to take actions that would ‘‘defeat the object and
purpose’’ of the treaty, even if the treaty has not yet been accepted or entered into
force for that state.
States need not accept treaties in an all-or-nothing manner (unless the treaty pro-
vides otherwise). Thus, states are permitted to enter ‘‘reservations’’ to portions of a
treaty, provided that the reservation is not ‘‘incompatible with the object and
purpose’’ of the treaty and that reservations are not precluded by the terms of the
treaty. They may also accompany their acceptance of a treaty with ‘‘understandings’’
about how they interpret the meaning of phrases and concepts in the treaty, or
‘‘declarations’’ of actions the state will or will not take in complying with the treaty.
In the United States, these three types of qualifications to a treaty are often referred to
collectively as RUDs (‘‘reservations,’’ ‘‘understandings,’’ and ‘‘declarations’’).

2. Customary International Law

As the ICJ Statute and the Restatement indicate, customary international law (CIL)
consists of widespread state practice (sometimes designated by the Latin word usus)
undertaken out of a sense of legal obligation (usually referred to as opinio juris). Both
elements are required. A sense of legal obligation with no state practice could hardly
count as customary law because the custom is missing. Conversely, states might
engage in a customary practice for reasons of political expediency rather than a belief
that the practice is legally required. In that case, the practice is not CIL. It is important
to bear in mind this difference between nonbinding custom and customary
international law.
One particular category of political expediency can be especially difficult to distin-
guish from CIL. This consists of rules of comity. Comity generally means something
akin to courtesy or mutual respect — a willingness to accommodate other states out of
goodwill (and, usually, the hope that the other state will reciprocate), rather than
legal obligation. To illustrate with a trivial example, states customarily treat visiting
B. The Sources of International Law 45

presidents and prime ministers with courtesy and decorum. The host state does not
put them up in cheesy strip-mall motels or serve them instant coffee in Styrofoam
cups. But the pomp and circumstance of state visits is a matter of comity, not a rule of
international law. There is no legal obligation to roll out the red carpet and use the
fancy china. By contrast, that visiting heads of state or heads of government will
typically enjoy immunity from suit in the courts of the host country is a matter of
CIL, a binding rule widely recognized and accepted by the international community.
(On rare occasions, U.S. courts have treated rules of comity as legally binding, but in
contexts far removed from international criminal law.14)
As comment b to Restatement §102 indicates, ‘‘state practice’’ need not consist
solely of state behavior ‘‘on the ground.’’ Instead, it can be evidenced by official
governmental acts such as the passage of laws. Because of the difficulty of determining
state practice, today many look to supplemental indicators. For example, when a duly
authorized foreign minister says ‘‘we accept X or don’t accept Y,’’ that can be author-
itative. When the UN General Assembly unanimously adopts a resolution specifically
endorsing a statement of CIL, that too can provide some authoritative evidence.
The fact that state practice can be evidenced by such acts of national governments
as passing laws or ratifying treaties is very important. For example, it is universally
agreed that CIL prohibits states from engaging in torture. But a glance through the
annual reports of Amnesty International or U.S. State Department country reports on
human rights shows that a great many states persist in the practice of torture. How,
then, could the rule of CIL exist, if state practice consists of torture rather than its
absence? The answer is that states can violate legal obligations that they themselves
have helped create, engaging in torture even though they officially condemn it. Vir-
tually all states have enacted laws criminalizing torture or have ratified the UN Con-
vention Against Torture, or both. In international law, their domestic laws and treaty
ratifications are state practice that contributes to the formation of CIL. Hence, it is no
contradiction to announce that a CIL rule against torture exists in a world where
torture continues to be practiced or condoned by many states. It means only that
those states (and their officials) violate the law.
The fact that state practice can include state acts that are symbolic rather than
tangible — the enactment of laws or the ratification of a treaty — does have one curi-
ous implication. It means that sometimes the identical state behavior — for example,
the enactment of a criminal law against torture in order to comply with treaty
obligations — gets ‘‘double counted’’ as both state practice and opinio juris. There
is nothing untoward about this: If a state criminalizes torture out of respect for what it
takes to be international legal obligation, then enacting the anti-torture statute is at
once state practice and evidence of opinio juris.
Official state pronouncements and declarations, General Assembly resolutions,
and the like are sometimes referred to as ‘‘soft law.’’ Unlike treaty ratifications,
they do not themselves impose legal obligations, and so they are not ‘‘hard law.’’
However, they can contribute to the formation of CIL by providing evidence of states’
opinio juris, and jurists have sometimes claimed that over time and repetition, soft law
pronouncements have hardened into CIL.
Other commentators object to the proposition that nonbinding soft law can trans-
mute into binding hard law through widespread repetition — or that there is such a

14. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004); Hartford Fire Ins.
Co. v. California, 509 U.S. 764 (1993); Hilton v. Guyot, 159 U.S. 113 (1895). The doctrine of comity
appears to have originated in seventeenth-century Holland. See Hessel E. Yntema, The Comity Doctrine,
65 Mich. L. Rev. 9, 25-28 (1966).
46 2. International Law Preliminaries

thing as soft or nonbinding law. As one author warns, ‘‘the accumulation of nonlaw or
prelaw is no more sufficient to create law than is thrice nothing to make
something.’’15 This is particularly important in the area of human rights, where,
according to critics, states frequently issue pious declarations in favor of human rights
while continuing to ignore those rights both in their own domestic law and in their
behavior on the ground. The declarations may lead human rights-oriented jurists to
announce new customary rules of human rights law that seem to be purchased
through talk alone (and talk is cheap). Thus, two respected jurists criticize such
rules as ‘‘a cultured pearl version of customary international law’’ that operates
‘‘through proclamation, exhortation, repetition, incantation, lament.’’16 Two other
scholars, labeling such rules ‘‘the new customary international law,’’ denounce them
as ‘‘incoherent and illegitimate.’’17 As we will see in this book, similar criticisms have
been raised against expansive new rules of international criminal law.
Do you agree with the criticism? How could a defender of the ‘‘new customary
international law’’ respond? If all states denounce human slavery and label it
‘‘criminal,’’ even in nonbinding ‘‘soft’’ government statements, isn’t that a basis
for stating that human slavery violates CIL, even if the practice persists in some
countries?
According to comment b to Restatement §102, ‘‘a practice can be general even if it
is not universally followed.’’ In other words, a rule of CIL can exist even if some states
do not participate in the custom — and the rule may bind those states as well. How is
this consistent with the consensual model of IL, according to which states can be
bound by rules only if they consent to them?
Perhaps it is not. One way that IL accommodates the tension between consensu-
alism and the binding force of customary rules is by creating an important exception.
A state that persistently objects to a rule of CIL throughout the period in which the
rule is being formed will not be bound by the rule. However, if the state has not
persistently objected, it may be bound by the rule whether it likes it or not.
To take an important example: Over the past 60 years, the majority of states have
abolished capital punishment in their domestic law or practice, and several multilat-
eral treaties (including the Second Protocol to the ICCPR) have also abolished it
among their states parties in whole or in part. However, even if an anti-death-penalty
rule of CIL is emerging, it would not bind any state that has persistently objected.
How are rules of CIL determined? Unfortunately, there are few shortcuts to the
painstaking process of examining treaties together with the laws, judicial decisions,
official acts, and actual practice of many states, state by state, to determine that a state
practice backed by opinio juris exists. International judicial decisions and scholarly
treatises on CIL sometimes make for mind-numbingly tedious reading as, for
paragraph after paragraph and page after page, they review the minutiae of docu-
ments from many states. Tedious or not, however, this is the most responsible way to
determine CIL. Even then, controversies can emerge. For example, in 2005 the
International Committee on the Red Cross (ICRC) published a handbook on the
CIL governing armed conflicts, the product of a ten-year research effort by a large
team. A first volume that enumerates and explains the CIL rules is 676 pages long.
Two additional volumes canvass worldwide state practice and opinio juris for each of

15. Prosper Weil, Towards Relative Normativity in International Law?, 77 Am. J. Intl. L. 413, 417
(1983).
16. Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General
Principles, 12 Austl. Y.B. Intl. L. 82, 89 (1992).
17. Jack L. Goldsmith & Eric A. Posner, Understanding the Resemblance Between Modern and Tra-
ditional Customary International Law, 40 Va. J. Intl. L. 639, 640 (2000).
B. The Sources of International Law 47

these rules — and these volumes weigh in at 4,449 pages.18 Nevertheless, the U.S.
State and Defense Departments issued a detailed criticism of the ICRC’s handbook,
arguing that its authors and editors relied on some sources that are not legitimate
state practice or opinio juris and overstate the significance of other sources.19 (In its
turn, the ICRC defended its work against the U.S. criticisms.20)

3. General Principles

As both the ICJ Statute and the Restatement indicate, general principles common to
most domestic legal systems are also a source of international law. Comment l to
Restatement §102 cites as examples ‘‘the rule that no one may be judge in his own
cause; res judicata; and rules of fair procedure generally.’’ Within international
criminal law, important general principles include the principle of legality and the
rule against double jeopardy (referred to in international practice by the Latin phrase
ne bis in idem). These rules are not the same as CIL because they originate as domestic-
law rules governing states’ own legal systems, rather than as obligations of states
toward each other or toward the international community as a whole.
Notice that in Article 38 of the ICJ statute, general principles are a source of law on
the same footing as treaty and custom; but in Restatement §102, they are only a
secondary source of law. What might account for that difference? How well do general
principles fit with the consensual model of IL? Have states that adopted the ban on
double jeopardy in their domestic criminal justice systems really consented to having
it become a rule of international law?
As a practical matter, the determination of ‘‘general principles’’ may invest judges
with a great deal of discretion. An ICJ judge has opined that ‘‘the true view of the duty
of international tribunals [in applying ‘general principles’] is to regard any features
or terminology which are reminiscent of the rules and institutions of private law as an
indication of policy and practices rather than as directly importing these rules and
institutions.’’21 Similarly, two judges of the International Tribunal for the Former
Yugoslavia (ICTY) explained in Prosecutor v. Erdemovic:

[O]ur approach will necessarily not involve a direct comparison of the specific rules of
each of the world’s legal systems, but will instead involve 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 underlying the concrete rules of that jurisdiction
which comports with the object and purpose of the establishment of the International
Tribunal.22

18. Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds.,
2005): volume 1, Rules; volume 2, Practice, Parts I and II.
19. Letter from John B. Bellinger III, State Department Legal Adviser, and William B. Haynes II, General
Counsel of Dept. of Defense, to Jakob Kellenberger, President, ICRC, Nov. 3, 2006, available at http://
webcache.googleusercontent.com/search?q ¼ cache:http://www.defenselink.mil/home/pdf/Customary_
International_Humanitiarian_Law.pdf; reprinted as John B. Bellinger III & William B. Haynes II, A US
Government Response to the International Committee of the Red Cross Study Customary International
Humanitarian Law, 89 Intl. Rev. Red Cross 433 (June 2007). For additional criticisms, see Perspectives
on the ICRC Study on Customary International Humanitarian Law (Elizabeth Wilmshurst & Susan
Breau eds., 2007).
20. Jean-Marie Henckaerts, Customary International Humanitarian Law: A Response to U.S. Com-
ments, 89 Intl. Rev. Red Cross 473 (June 2007).
21. South West Africa Case, Advisory Opinion, 1950 I.C.J. 28, 148 (July 11) (separate opinion of Judge
McNair).
22. Case No. IT-96-22-A, Judgment, ¶57 (Oct. 7, 1997) (joint opinion of Judges McDonald and
Vohrah).
48 2. International Law Preliminaries

4. ‘‘Judicial Decisions and Teachings of the Most Highly Qualified

Publicists’’

Notice that Article 38 of the ICJ Statute makes ‘‘judicial decisions and teachings of the
most highly qualified publicists’’ subsidiary sources of law, while Restatement §102
does not include them as sources of law at all. What might account for this difference?
One factor may be a difference between the United States and most European and
Latin American legal systems. In the latter, academic experts play a much more
prominent role in the legal system than in the United States. Their opinions and
commentaries are often relied on by judges and legislators, in much the same way that
U.S. judges may rely on decisions by important judges in other jurisdictions as per-
suasive authority. For better or for worse, academics have no such authority in the
legal system of the United States. Should ‘‘the most highly qualified publicists’’ count
as a source of law?
Among ‘‘the most highly qualified publicists,’’ one that deserves special mention is
the International Law Commission (ILC). The ILC was established in 1947 by the UN
General Assembly to prepare drafts on various subjects in international law. It consists
of 34 IL experts, elected by the General Assembly to five-year terms, and it meets
annually. Its drafts carry considerable authority.

5. ‘‘Peremptory Norms’’ ( Jus Cogens)

Comment k of the Restatement excerpt discusses special norms of international law

that ‘‘prevail over and invalidate international agreements and other rules of
international law in conflict with them.’’ The terminology comes from Article 53
of the VCLT:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized 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.

A more common name for such peremptory norms is jus cogens (pronounced ‘‘yoos
kogenz,’’ with a hard g).23 In theory, at least, the jus cogens norms are the most
fundamental norms of international law — its (almost) immovable bedrock. Most
scholars would include the following among the jus cogens norms: pacta sunt servanda
(treaties are to be kept), the rule against launching aggressive war, and fundamental
human rights norms such as the prohibitions on genocide and slavery.
A jus cogens norm is, in other words, a norm of international law that is so basic and
important that (1) it invalidates treaties that violate it; (2) it cannot be changed the
way that lesser norms of CIL are, namely through state practice and opinio juris
changes; and (3) there is no ‘‘opting out’’ by claiming to be a persistent objector.

23. The word jus means ‘‘law,’’ while cogens is a form of the Latin verb coacto, ‘‘to compel.’’ Jus cogens is
‘‘compulsory law.’’ In legal terminology, the opposite of jus cogens is jus dispositiva, which refers to law that
parties can change at will.
B. The Sources of International Law 49

In theory, a norm of jus cogens can change if another norm of jus cogens displaces it, but
there are no undisputed cases where that has happened. (Some commentators argue
that the widespread acceptance of NATO’s attack on Serbia in the Kosovo war indi-
cates that the jus cogens norm against military interventions has been displaced by
permission to engage in humanitarian intervention, but this view is quite
controversial.)
Not all states agree. Notably, France has never accepted the doctrine of ‘‘peremp-
tory norms’’ and for that reason has never signed or joined the VCLT (although
France declares that it applies the VCLT’s principles). One important French jurist —
former President of the ICJ Gilbert Guillaume — has opined that France is a persis-
tent objector to the doctrine of peremptory norms and, therefore, that French courts
are not bound by the jus cogens. However, Guillaume’s is not the dominant opinion in
France.24
Strictly speaking, the only legal force of jus cogens norms the VCLT recognizes is that
states cannot adopt treaties that violate those norms. But in practice, jurists have
sometimes given jus cogens norms — especially fundamental human rights norms —
an almost natural-law status. In the words of the International Law Commission, ‘‘[i]t
is not the form of a general rule of international law but the particular nature of the
subject matter with which it deals that may . . . give it the character of jus cogens.’’25
When we study the Pinochet case in Chapter 6, we will see that the British judges in the
case frequently refer to torture as a ‘‘jus cogens crime.’’
Lawyers and judges have sometimes drawn wide-ranging conclusions about jus
cogens norms. They have argued, for example, that every state has a legal interest in
ensuring that jus cogens norms are not violated. Lawyers refer to obligations that fall on
all states as erga omnes (‘‘toward all’’) obligations, and in one often-quoted dictum, the
ICJ stated that ‘‘the principles and rules concerning the basic rights of the human
person’’ give rise to obligations erga omnes.26 And sometimes it is said that any state can
assert ‘‘universal jurisdiction’’ over crimes that violate jus cogens norms — an issue we
shall study in detail in Chapter 5. Other jurists disagree that jus cogens norms create
universal obligations or universal jurisdiction.
Finally, we should note that there is a certain air of mystery about where jus cogens
norms come from. There is no settled list of jus cogens norms, and states seldom issue
public proclamations about jus cogens. Although the Latin name might suggest that
thousands of years of legal tradition underwrite jus cogens, this is simply not true.
Current doctrines asserting that aggressive war and atrocious human rights abuses
violate jus cogens date back only as far as the end of World War II. Indeed, the entire
jurisprudence (if one can use that term) of jus cogens is a postwar creation.27 Labeling
a deed such as torture a ‘‘jus cogens crime’’ has great rhetorical force, but it is not easy
to show how or when the prohibition against torture became a jus cogens norm. ‘‘Jus
cogens crime’’ is a claim that the international community regards torture as a bedrock
violation of international law — and that is something that needs to be demonstrated
by citing widespread state opinio juris to that effect. In practice, lawyers and courts
seldom undertake this demonstration. Instead, ‘‘jus cogens crime’’ simply becomes a
label equivalent in meaning to ‘‘particularly grave international crime.’’

24. Eirik Bjorge, Kandyrine de Brito Paiva, 106 AJIL 353, 357-358 (2012).
25. Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B.
Intl. L. Commn. 173, 248, U.N. Doc. A/6309/Rev.1 (1966).
26. Barcelona Traction, Light & Power Co., Ltd. (New Application) (Belg. v. Spain), 1970 I.C.J. Rep. 4,
¶¶32-34 (Judgment of Feb. 5).
27. See Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Devel-
opment, Criteria, Present Status (1988).