Anthony Aust. Handbook of International Law

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or all of the powers attaching to the right of ownership over a person and includes the exercise of

such power in the course of trafficking in persons, in particular women and children’. Although for

the purposes of the jurisdiction of the ICC slavery is limited to acts committed as part of a

widespread or systematic attack directed against a civilian population, it is now more probable that

national courts would be willing to exercise universal jurisdiction in respect of isolated acts of

slavery.

Genocide

W. Schabas, Genocide in International Law, Cambridge, 2000

Genocide has been practised for centuries. But the term was invented only in 1944 by an historian to

describe the Holocaust. In 1946, the UN General Assembly adopted, unanimously and without

debate, Resolution 96 ( ) declaring genocide to be an international crime. In 1948, the Convention

on the Prevention and Punishment of the Crime of Genocide was adopted.

It defines genocide as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial

or religious group, as such:

Killing members of the group;1.

Causing serious bodily or mental harm to members of the group;2.

Deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part;

Imposing measures intended to prevent births within the group;4.

Forcibly transferring children of the group to another group.5.

Although the Convention has only 137 parties, there can no longer be any doubt that it is a crime in

customary international law. The International Criminal Tribunals for the Former Yugoslavia and for

Rwanda and the International Criminal Court each have jurisdiction over genocide as defined in the

Convention.

Genocide is sometimes grouped together with crimes against humanity, and, like the latter, can be

committed in peacetime as well as during an armed conflict. But what distinguishes it from crimes

against humanity is that the acts must be committed ‘with intent to destroy’ a group, so putting it in

a class of its own. The definition, and the Elements of Crime that supplement the ICC Statute,

suggest that few, if any, of the

31. 78 UNTS 277 (No. 1021); UKTS (1970) 58.

32. See p. 278, n. 56 below.

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crimes committed in the former Yugoslavia against ethnic groups could be classified as genocide,

and that most of the acts described as ‘ethnic cleansing’ were rather crimes against humanity, such

as forcible transfers of population. On the other hand, the mass murder in Rwanda in 1994 of the

Hutu by the Tutsi was clearly genocide. If committed today the atrocities committed on the Turkish

Armenians in 1915 would amount to genocide if it could be established that there was an intent to

destroy, in whole or in part, that population.

The Genocide Convention places criminal responsibility on all individuals, Article making no

exception for heads of state and public officials. But the enforcement of the Convention is left to the

courts of the party in whose territory the crime was committed (Article ). Article provides that

genocide shall not be considered a political crime for the purposes of extradition. But the

Convention does not establish a regime of universal jurisdiction.

Crimes against humanity

Oppenheim, pp. 995–8

W. Schabas, The International Criminal Court, 2nd edn, Cambridge, 2004, pp. 41–51

Here we are concerned with grave offences against life and liberty on an extensive scale, even if they

are lawful under national law (as they were in Nazi Germany). Crimes against humanity may be seen

as collective violations of basic human rights, rather than those of an individual. The Charter of the

Nuremberg International Military Tribunal included crimes against humanity, although only in

connection with war crimes or crimes against the peace.

This link no longer exists; crimes against

humanity can be committed in peacetime. Article 7 of the Statute of the International Criminal Court

lists the crimes (with some more recent additions). They include murder, extermination,

enslavement, deportation or forcible transfer of population (e.g. ethnic cleansing), imprisonment,

torture, rape, sexual slavery, enforced prostitution or sterilisation and enforced disappearance of

persons. But, to be a crime against humanity, the Statute requires such acts to have been committed

as part of a ‘widespread or systematic attack directed against any civilian population’ and to be done

‘pursuant to or in furtherance of a state or organisational

33. See p. 45 above.

34. See n. 42 below.

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policy to commit such attack’; and the policy requires that the state or organisation ‘actively promote

or encourage’ the attack (see the ICC Elements of Crimes).

Unlike genocide, there is no

requirement that the acts must be committed ‘with intent to destroy’ a group. It is not clear if

national limitation periods for crimes can still apply to them,

but the ICC has no such limitation on

its jurisdiction (Article 29). The jurisdiction of the International Criminal Tribunals for the Former

Yugoslavia (ICTY) and for Rwanda (ICTR) include crimes against humanity, and in Tadic the ICTY

declared that crimes against humanity are part of customary international law.

War crimes

See pp. 251-62 above.

Aggression

Although the Nuremberg International Military Tribunal established that aggressive war is a crime

against the peace, none of the international tribunals set up since the end of the Cold War has

jurisdiction over that crime, and the International Criminal Court will be able to exercise jurisdiction

over the crime of aggression only if and when a definition can be agreed.

Responsibility of superiors

Article 7(3) of the ICTY Statute provides that a superior is responsible for an act done by a

subordinate if the superior knew or had reason to know that the subordinate was about to commit the

act, or had done so, and the superior failed to take the necessary and reasonable measures to prevent

repetition or to punish the perpetrator.

Article 28 of the ICC Statute distinguishes military and

other superiors. A military commander is criminally responsible for crimes committed by his forces

as a result of his failure to exercise proper control over them, if he knew, or should have known, that

crimes were being or were about to be committed by

35. See Schabas, Genocide in International Law, Cambridge, 2000, p. 279.

36. See Oppenheim, p. 997, n. 11.

37. ILM (1997) 908 at 935, paras. 618–23; 105 ILR 453.

38. See p. 278 below.

39. See the ICTY judgment in CCelebic i (1998), ILM (1999) 677, paras. 370 et seq.

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them and he failed to take all necessary and reasonable measures within his power to prevent or

repress them. Other superiors, such as a head of state or government or minister of defence are

criminally responsible for crimes committed by subordinates under their effective authority and

control as a result of their failure to exercise proper control over them, if the superiors knew or

ignored information about the crimes and failed to do all in their power to prevent or repress them.

Although the ICC Statute resulted from lengthy and detailed UN negotiations, Article 28 may not

represent the present consensus as to the law on this difficult and important issue.

Superior orders

Article 8 of the Nuremberg Charter

provided that acting pursuant to superior orders does not free

an accused from responsibility, but ‘may be considered in mitigation of punishment if the Tribunal

determines that justice so requires’. Following on from that, Article 7(4) of the ICTY Statute

provides that a superior order does not relieve the accused of responsibility, but may mitigate the

punishment. Article 33 of the ICC Statute confirms that an accused cannot plead in his defence that

he was carrying out the orders of his superior, but, as the result of a compromise in the negotiations

on the Statute, it provides for a limited defence in the case of, in effect, war crimes: if the accused

had been under a legal obligation to obey the order and did not know it was unlawful and the order

was not ‘manifestly’ unlawful. An order to commit genocide or a crime against humanity is declared

to be manifestly unlawful.

International tribunals

Although there were earlier proposals for international criminal tribunals,

the first to be

established was the Nuremberg International Military Tribunal,

followed by the Tokyo Tribunal.

Having been established by the leading powers that had fought Germany and Japan, they were not

truly international, but the law applied by them was proper and

40. See p. 7 above.

41. See Shaw, p. 234.

42. See 82 UNTS 279 (No. 251); UKTS (1945) 4. The judgment is in (1947) AJIL 173–332. See also The

Charter and Judgment of the Nuremberg Tribunal, History and Analysis (UN Doc. 1949 7), and

Woetzel, The Nuremberg Trials in International Law, London, 1962.

43. See 15 ILR 356.

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their procedures fair, suggestions of ‘victors’ justice’ being nonsense.

The Charter and Judgment

of the Nuremberg Tribunal laid down important principles of international law that were endorsed

unanimously by the UN General Assembly in 1946.

The most important were that persons are

individually responsible for international crimes; aggressive war is a crime against the peace; a head

of state and other senior officials can be personally responsible for crimes even if they did not

actually carry them out; and the plea of superior orders is not a defence. These principles are now

part of customary international law even though their precise scope is still not clear (see above).

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Acting under Chapter of the UN Charter, the Security Council established the ICTY by

Resolutions 808 (1993) and 827 (1993).

Located at The Hague, Netherlands, it has criminal

jurisdiction over individuals accused of committing in the former Yugoslavia since 1 January 1991

grave breaches of the Geneva Conventions 1949, war crimes, genocide or crimes against humanity,

and has ruled that it has jurisdiction over crimes committed during an internal conflict and listed in

common Article 3 of the Geneva Conventions.

It has concurrent jurisdiction with national courts,

but can request them to relinquish jurisdiction in its favour. Cases are tried in one of three trial

Chambers, each composed of three judges. These are drawn from the sixteen permanent judges

(elected by the UN General Assembly for four-year, re-electable terms, one of whom serves as

President of the ICTY), and from twenty-seven ad litem (temporary) judges (elected for four-year,

non-re-electable terms). A majority of the judges are experts in criminal law and procedure. The

Appeals Chamber (which is also the Appeals Chamber for the ICTR) consists of seven of the

permanent judges (five from the ICTY and two from the ICTR). Five judges hear each appeal. The

Prosecutor is appointed by the UN Security Council, on the nomination of the Secretary-General, for

a four-year, re-electable term, and acts independently of the Council or any government.

44. See Oppenheim’s International Law, 7th edn, London, 1952, vol. , pp. 579–82.

45. UNGA Res. 95 ( ). See A. Aust, ‘The Security Council and International Criminal Law’ (2002) NYIL

23 at 25.

46. The Statute is not annexed, so see the annex to the UN Secretary-General’s Report of 3 May 1993

(S/25704) or ILM (1993) 115. A slightly amended version of the Statute is at www.un.org/icty/.

47. See p. 254 above.

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Article 7 of the Statute provides that a person who planned, instigated, ordered, or otherwise aided

and abetted in the planning, preparation or execution of a crime, is individually responsible for it;

that former heads of state or government and government officials are not relieved of criminal

responsibility;

that a superior is responsible in certain circumstances for an act of a subordinate

(see above); and that a superior order does not relieve the accused of responsibility (see above).

At first there were doubts whether the ICTY would be effective. Unlike the Nuremberg Tribunal,

the suspects were still in their own countries, as were witnesses and physical evidence. Success

would therefore depend on the co-operation of governments, especially those in the former

Yugoslavia. But, despite the problems created by the Milosevic trial, the ICTY has been successful.

Over thirty-five trial judgments,

and some twelve appeal judgments, have been given. But the

ICTY is very expensive. There are over 1,200 staff and the budget for 2004–5 is US$ 272 million.

Together with the ICTR budget, this amounts to some 10 per cent of the total UN budget. Therefore,

in Resolution 1534 (2004), the Security Council encouraged the two tribunals to concentrate on the

most senior leaders, to consider transferring some cases to national courts, to try to complete all

investigations by the end of 2004, to finish all trials by the end of 2008 (although this may not apply

to Mr Karadzic and Mr Mladic who are still at large), and to finish all other work in 2010.

International Criminal Tribunal for Rwanda (ICTR)

Following the massacres committed in Rwanda and some neighbouring states in 1994, acting under

Chapter of the UN Charter the Security Council established the ICTR by Resolution 955 (1994),

to which its Statute is annexed.

Located in Arusha, Tanzania, and with premises in Kigali,

Rwanda, it has criminal jurisdiction over genocide, crimes against humanity, and serious violations

of common Article 3 to the Geneva Conventions, and of Additional Protocol 1977 on non-

international armed conflicts, committed in 1994 by individuals in

48. Cf. Article 25 of the ICC Statute, p. 280 below.

49. The provision was intended also to remove immunity from current heads of state, etc.: see the Report

of the UN Secretary-General of 3 May 1993 (S/25704), para. 55, and Milosevic, Trial Chamber ,

Decision of 8 November 2001, paras. 26–34. See also p. 176 above.

50. States can agree to hold convicted prisoners; see, for example, the UK–UN Agreement of 11 March

2004, UKTS (2004) 20.

51. It is also in ILM (1994) 1598, and at www.ictr.org.