Anthony Aust. Handbook of International Law

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13 International criminal law

The most serious crimes of concern to the international community as a whole must not go unpunished

and . . . their effective prosecution must be ensured by taking measures at the national level and by

enhancing international cooperation.

The term ‘international criminal law’ is merely a useful way of describing those aspects of

international law that are concerned with crimes having an international aspect or dimension. We

will first look briefly at mutual legal assistance in criminal matters and extradition, and then at

international crimes and how international law seeks to deal with them. (Terrorism is dealt with in

Chapter 14.)

Mutual legal assistance

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 484–8

Cameron, ‘Mutual Legal Assistance in Criminal Matters’ (1989) ICLQ 954–65

‘Proceedings of the Harvard Law School Conference on International Co-operation in Criminal Matters’

(1990) Harvard International Law Journal 1–127

Although only a tiny number of criminal cases have an international element, the few that do are

often serious in nature. The greater ease with which people now travel abroad means that the

authorities of a state investigating or prosecuting a crime may need the help of other states, who may

also have an interest. Depending on the law and procedure of the requested state, assistance may be

given on an informal basis. The association established by national police forces to exchange

criminal intelligence, Interpol,

1. Preamble to the Rome Statute of the International Criminal Court.

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may be used.

Within the European Union, the European Police Office (Europol) plays a similar

role.

Assistance can be provided by a state more formally, yet without a treaty.

But, if there is a

frequent need for help, bilateral or multilateral treaties or schemes for mutual legal assistance in

criminal matters may be desirable.

Their principal purpose is to help in tracing persons and the

obtaining of evidence, including witnesses. The execution of a request is subject to the law of the

requested party. Some of the treaties deal with specific crimes such as drug trafficking.

Extradition

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 948–72

Gilbert, Aspects of Extradition Law, Dordrecht, 1991

Stanbrook and Stanbrook, Extradition Law and Practice, Oxford, 2000

Extradition (sometimes called rendition)

is the procedure by which a person accused or convicted

of a crime (although not usually in absentia – in his absence) is formally transferred to a state where

he is wanted for trial or to serve his sentence. In the absence of a treaty, a state has no obligation to

extradite. But extradition can take place without a treaty if this is acceptable to both states and

permissible under their laws. It

2. See www.interpol.int.

3. For the text of the Europol Convention 1995, see 2156 UNTS 200 (No. 37663); UKTS (2000) 103; OJ

C316 of 27 November 1995 or see www.europol.eu.int.

4. See the (UK) Criminal Justice (International Co-operation) Act 1990.

5. See the Colombia–UK Mutual Legal Assistance in Criminal Matters Agreement 1997, UKTS (2000) 40;

and the European Convention on Mutual Assistance in Criminal Matters 1959 and the Additional Protocol

of 1978, 472 UNTS 185 (No. 6841) and 1496 UNTS 350 (No. 6841); UKTS (1992) 24; the EU

Convention on Mutual Assistance in Criminal Matters 29 May 2000, OJ 2000 NO. C197/3; the 1990 UN

Model Treaty on Mutual Assistance in Criminal Matters, A/RES/45/117; ILM (1990) 1410; the UK–US

Treaty on Mutual Assistance in Criminal Matters 1994, as amended 1967, 1967 UNTS 102 (No. 33632)

and 2114 UNTS 392 (No. 36773); UKTS (1997) 14 and UKTS (2002) 8. See also the Commonwealth

(Harare) Scheme Relating to Mutual Assistance in Criminal Matters, as amended in 1999, at

www.thecommonwealth.org (click on ‘What we do’, then ‘Law’, then ‘Documents’). This and other

Commonwealth schemes (nn. 9 and 15 below) are not embodied in treaties and so depend on

Commonwealth countries enacting matching legislation to implement them.

6. Chile–UK Agreement on Mutual Assistance on Drug Trafficking, UKTS (1997) 63.

7. ‘Rendition’ is a generic term covering all the means of returning alleged offenders (extradition,

deportation, expulsion and exclusion) that are, in principle, lawful. Abduction (p. 49 above) is illegal.

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can be done ad hoc

(although this may require the requesting state to agree to accord reciprocal

treatment) or pursuant to a non-treaty scheme implemented by parallel legislation in the participating

states.

But most extradition is done under the hundreds of extradition treaties concluded during the last

two centuries in response to the enormous increase in international travel following the invention of

railways, the steamship, sealed roads, motor vehicles and the aeroplane. Most are bilateral and

specify the crimes that are extraditable, usually serious offences such as those punishable by

imprisonment for at least one year.

They will almost always incorporate the double criminality

principle (extradition is granted only if the act for which extradition is sought is a crime in both the

requesting and the requested states, although it does not have to be called by the same name), and

the principle of speciality (if extradited, the accused will be tried only for the crime for which he

was extradited). Most treaties will also require that the requested state be satisfied that there is at

least prima facie evidence of the guilt of the accused (but see below on simplified extradition).

The request for extradition is normally made formally through the diplomatic channel,

accompanied by the arrest warrant, information about the identity of the accused, and the basic facts

of the offence. Often, the request will ask for provisional arrest pending arrival of all the necessary

paperwork. In most states, the request will be scrutinised by the courts, where the accused can

challenge it. Usually, the final decision will be taken by the executive, to which the domestic law

will usually give discretion to refuse the request, subject only to treaty obligations.

The constitutions of many states, including some European states, prohibit the extradition of their

own nationals, but their laws enable them to prosecute their nationals for serious crimes committed

abroad. Other states, including the United Kingdom, can extradite their own nationals and therefore

their laws enable prosecution of their nationals only for a few categories of serious crimes

committed abroad. The problems created

8. (UK) Extradition Act 2003, section 194.

9. See the London Scheme for Extradition within the Commonwealth, as amended in 2002: see

www.thecommonwealth.org (click on ‘What we do’, then ‘Law’, then ‘Documents’).

10. See the Hong Kong SAR–UK Agreement for the Surrender of Fugitive Offenders 1997, UKTS (1998)

30 and the 1990 UN Model Treaty on Extradition, A/RES/45/117; ILM (1991) 1410. See also the (CoE)

European Convention on Extradition 1957, 359 UNTS 221 (No. 5146); UKTS (1991) 97, although it is

now largely overtaken by the new EU Framework Decision (see the text to n. 19 below).

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by the own nationals prohibition can be partly

overcome by universal or quasi-universal

jurisdiction regimes, although such regimes are limited to ‘international crimes’.

The accused may successfully plead that it would be contrary to the human rights obligations of

the requested state to extradite him to the requesting state. This is particularly so if there are grounds

for believing that the accused may be tortured or subject to other cruel or inhuman treatment.

Extradition should be effected directly between the two states by the police of the extraditing state

taking the person in their custody to the requesting state (and if by air or sea, preferably in an aircraft

or ship registered in the extraditing state) and there handing him over to its police. A transit stop in a

third state should not cause problems if the accused remains on the aircraft or ship. But once he

leaves it there is the danger that he may challenge the lawfulness of his custody, and a request for

extradition from the third state may then be needed.

There are also treaties providing for prisoners to be transferred from the state where they were

convicted to serve their sentence in another state, normally their state of nationality.

Such

arrangements can be mutually beneficial: the first state gets rid of an undesirable, and the offender is

nearer his family.

Political exception

Domestic law and extradition treaties often provide that a ‘political offence’ is not extraditable. This

political exception is not required by international law, and must be clearly distinguished from

provisions in domestic law or mutual legal assistance or extradition treaties that

11. But on the Lockerbie dilemma, see p. 295 below.

12. See p. 45 above.

13. See Soering, (19**) 11 EHRR 439; ILM (1989) 1063; 98 ILR 270; and Chahal (1997) 23 EHRR 413;

108 ILR 385.

14. The UN flew the two accused of the Lockerbie bombing to the Netherlands for trial before a Scottish

court exercising jurisdiction there with Dutch consent. Once they had landed, they had to be extradited

from Dutch jurisdiction to Scottish jurisdiction. Luckily, there was no challenge: see A. Aust, ‘Lockerbie:

The Other Case’ (2000) ICLQ 278–96.

15. See the European Convention on the Transfer of Sentenced Persons 1983, 1496 UNTS 92 (No. 25703);

ILM (1983) 530; UKTS (1985) 51), as amended by an Additional Protocol of 1997, 2138 UNTS 244 (No.

25703); and the London Scheme for the Transfer of Convicted Offenders within the Commonwealth, at

www.thecommonwealth.org (click on ‘What we do’, then ‘Law’, then ‘Documents’). See also the Sri

Lanka–UK Agreement on Transfer of Prisoners 2003, UKTS (2004) 31.

16. For a most detailed account, see Oppenheim, pp. 962–72.

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assistance or extradition may be refused if the real purpose of a request is to prosecute or persecute

the person for his political opinion rather than for the crime itself.

There is no agreement

internationally on what constitutes a political offence: whether it is the purpose or motive that is

political or the crime is directed at the state, such as the assassination of a head of state. In the past at

least, US courts have several times refused extradition to the United Kingdom of members of the

Irish Republican Army accused of politically motivated terrorist offences.

The political exception has been excluded in respect of some especially cruel offences, such as

genocide and certain terrorist offences.

Simplified extradition

Between states with similar standards of criminal justice it may be possible to replace traditional

extradition by simplified procedures. This was done in the EU Framework Decision on the European

arrest warrant and surrender procedures between member states of 13 June 2002, which aims to

simplify and speed up the extradition (‘rendition’ in the Decision) of accused or convicted

persons.

As between EU member states, it does this by radical means. All previous extradition

procedures, including Council of Europe extradition treaties and bilateral treaties, are replaced. Each

member state must comply with a request from a court or prosecutor of another member state for the

execution of an arrest warrant issued by him for a person accused of an offence carrying a minimum

sentence of twelve months’ imprisonment or who has been convicted and sentenced to a minimum

of four months’ imprisonment. The arrest warrant need only contain a description of the

circumstances in which the offence was committed. The judicial authorities, not the executive,

decide on the request, which must be done within ninety days of the arrest. Member states cannot

refuse a request to hand over their own nationals. The principles of double criminality and speciality

no longer apply, although a member state may list those offences that it will exclude from the new

procedure on the ground that it would be contrary to fundamental principles of its legal system. But

the double jeopardy rule remains.

17. See p. 291 below.

18. See p. 270 below on genocide and p. 291 below on the trend to exclude the political exception in

terrorist cases.

19. 2002/584/JHA; OJ L190/1, 18 July 2002. As to the legal status of EU framework decisions, see p. 478

below.

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A new UK–US Extradition Treaty was signed on 31 March 2003.

It is on largely traditional lines,

except that an extradition request by the United Kingdom will still have to make a prima facie case,

but those by the United States will not, thereby creating a new principle of double standards.

25 June 2003, EU–US treaties on mutual legal assistance and extradition were signed.

These

supplement, and will require amendments to, bilateral treaties with individual EU states. Although

they should enhance cooperation in tackling serious crime, they are on more traditional lines.

Irregular means

Sometimes a state seeks to bypass extradition procedures by deporting a fugitive (‘disguised

extradition’).

A state will sometimes seize (abduct) a wanted person without the consent or

acquiescence of the state where he is.

But such actions may well be contrary to both national and

international law.

International crimes

There is no agreed definition of ‘international crime’, but it is a convenient term for those crimes

that are of concern to every state because of their corrosive effect on international society or their

particularly appalling nature. For such crimes, international law does not place criminal

responsibility on the state on whose behalf the crime may have been done (although the state may

incur international responsibility),

but on the individual who committed the crime. In addition,

although it is by no means universally agreed, it is likely that international law allows a state to

prosecute such crimes regardless of where they were committed or the nationality of the accused

(universal jurisdiction).

Whether the crime is one which can be

20. Cm 5821. It is not yet in force, although the UK already implements it by means of the Extradition Act

2003.

21. Contrast Article 8(3)(c) with Article of the previous 1972 Treaty, 1049 UNTS 167 (No. 15811);

UKTS (1977) 16; TIAS 8468.

22. ILM (2004) 749.

23. See Oppenheim, pp. 388–90, n. 16.

24. See R. . Governor of Brixton Prison, ex parte Soblen [1963] 1 QB 829; [1963] 2 QB 243; and

Oppenheim, p. 947, n. 7. See also ‘Flight to Torture’, The Times, 26 March 2005, on the alleged complicity

of several states with the US in irregular renditions of suspected terrorists.

25. See p. 49 above.

26. See p. 410 below.

27. See p. 45 above for details.

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prosecuted in the domestic courts of a state depends on the laws of that state. Although many

international crimes will also amount to ordinary crimes (murder), domestic courts will not

necessarily have jurisdiction over them; specific legislation may be needed to confer jurisdiction.

The acts that today constitute international crimes are nothing new but, with the notable exception of

piracy, it was only in the twentieth century that a concerted effort was made to treat them as

international crimes.

The crimes discussed below are not the only ones to be called ‘international crimes’. The term is

also sometimes used to describe crimes covered by international treaties (various terrorist crimes,

drug offences, etc.) which impose obligations on states parties to criminalise the activities concerned

and to prosecute or extradite suspected offenders. The crimes are ones that the international

community has considered as sufficiently serious in effect internationally to warrant a particular

form of international cooperation.

Piracy

Customary international law has for centuries treated pirates as international outlaws subject to the

jurisdiction of any state. Piracy is any illegal act of violence or detention committed on the high seas

for private ends by a private ship against another ship. Warships of any state may board a foreign-

registered ship on the high seas that is suspected of piracy. If it proves to be a pirate ship, it can be

seized and those on board arrested and put on trial in the state of the warship.

Despite this, piracy

is again a curse in several parts of the world.

Slavery

Slavery is an even older practice, and is still with us today. Although there have been various treaties

seeking to combat slavery, and it is now accepted that slavery is prohibited by customary

international law, it is still not clear if slavery is subject to universal jurisdiction.

However, the

1998 Statute of the International Criminal Court (ICC)

includes ‘enslavement’ in its definition of

crimes against humanity, defining it as ‘the exercise of any

28. The law is now codified in the UN Convention on the Law of the Sea 1982, 1833 UNTS 397 (No.

31363); ILM (1982) 1261; UKTS (1999) 81 (Articles 101, 105, 107 and 110). For more details, see p. 298

below.

29. See Oppenheim, pp. 978–82.

30. For the ICC, see p. 277 below.