This page intentionally left blank Prosecuting International Crimes This book discusses the legitimacy of the international criminal law regime. It explains the development of the system of international criminal law enforcement in historical context, from antiquity through the Nuremberg and Tokyo Trials, to today’s prosecutions of atrocities in the former Yugoslavia, Rwanda and Sierra Leone. The modern regime of prosecution of international crimes is evaluated with regard to international relations theory. The book then subjects that regime to a critique on the basis of legitimacy and the rule of law, in particular selective enforcement, not only in relation to who is prosecuted, but also to the definitions of crimes and principles of liability used when people are prosecuted. It concludes that although selective enforcement is not as powerful as a critique of international criminal law as it was previously, the creation of the International Criminal Court may also have narrowed the substantive rules of international criminal law. r obert cryer is Senior Lecturer in Law at the University of Nottingham. He is the book review editor of the Journal of Conflict and Security Law.Heteaches international law, criminal law, theory of criminal law, theory of international law, humanitarian law, international criminal law and the law of collective security. He has taught in the United Kingdom, Germany, Austria, Malaysia and South Africa. c ambridge studies in international and comparative law Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention. The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General Editors James Crawford SC FBA Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge John S. Bell FBA Professor of Law, Faculty of Law, University of Cambridge Editorial Board Professor Hilary Charlesworth Australian National University Professor Lori Damrosch Columbia University Law School Professor John Dugard Universiteit Leiden Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor David Johnston University of Edinburgh Professor Hein Kötz Max-Planck-Institut, Hamburg Professor Donald McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Professor Reinhard Zimmermann Universität Regensburg Advisory Committee Professor D. W. Bowett QC Judge Rosalyn Higgins QC Professor J. A. Jolowicz QC Professor Sir Elihu Lauterpacht CBE QC Professor Kurt Lipstein Judge Stephen Schwebel A list of books in the series can be found at the end of this volume. Prosecuting International Crimes Selectivity and the International Criminal Law Regime Robert Cryer Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge ,UK First published in print format - ---- - ---- © Robert Cryer 2005 2005 Information on this title: www.cambrid g e.or g /9780521824743 This book is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. - --- - --- Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (MyiLibrary) eBook (MyiLibrary) hardback To my parents Contents Prefaceandacknowledgementspagexi Tableofcasesxiii Tableoftreatiesxxi Listofabbreviationsxxiv Introduction1 PartIThedevelopmentoftheinternationalcriminallawregime 1Thedevelopmentofinternationalcriminallaw9 Introduction9 Antiquity11 TheMiddleAges13 Theendoftheageofchivalryandthe‘classical’ periodofthelawofnations21 1700 191425 TheFirstWorldWar31 TheSecondWorldWar36 TheColdWar48 TheInternationalCriminalTribunalfortheFormer Yugoslavia(ICTY)51 TheInternationalCriminalTribunalforRwanda (ICTR)54 TheInternationalCriminalCourt(ICC)57 Otherdevelopmentsinthepost-ColdWarera60 Conclusion72 vii viii c ontents 2Internationalcriminallaw:Staterights, responsibilitiesandproblems73 Introduction73 Jurisdiction75 Dutiestoextraditeorprosecute?101 Incorporationintodomesticlawandharmonisation117 Conclusion122 3InternationalCriminalTribunalsandtheregimeof internationalcriminallawenforcement124 Twospecialcases:RwandaandformerYugoslavia127 TheRomeregime142 Incorporationandharmonisationofinternational criminallaw167 Conclusion184 PartIIEvaluatingtheregime 4Selectivityininternationalcriminallaw191 Whatselectiveenforcementinvolves191 Selectivityininternationalcriminallaw202 Conclusion230 5Selectivityandthelaw:I definitionsofcrimes232 Introduction232 ‘Safe’and‘unsafe’Tribunals233 Custom,codification,legitimacyandthenullumcrimen sinelegeprinciple238 Aggression241 Genocide245 Crimesagainsthumanity247 Warcrimes262 Othercrimes285 Conclusion286 6Selectivityandthelaw:II generalprinciplesof liabilityanddefences289 Introduction289 Defences291 [...]... Military LR MJIL MLR MPYBUNL MULR NELR NI NILR Nordic JIL NYIL International Law Association International Law Commission International Legal Materials International Law Quarterly International Law Reports International Law Students’ Association Journal of International and Comparative Law International Military Tribunal International Politics International Review of the Red Cross Israel Law Review Israel... Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), pp 9 10 1 2 prosecuting international crimes in its famous pronouncement that crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international. .. Human Rights Law Journal Human Rights Law Review Human Rights Quarterly International Affairs International Criminal Court International Covenant on Civil and Political Rights International Court of Justice International and Comparative Law Quarterly International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia xxvi list of... Other Psychotropic Substances, Article 1 4 prosecuting international crimes These exclusions leave only four categories of crime to be discussed in detail: genocide, crimes against humanity, war crimes and the crime of aggression These four remain as they have been accepted in the latter half of the twentieth century as the ‘core’ international crimes which international law itself criminalises This... 6 prosecuting international crimes a valuable addition to the international legal system’.20 My critique of the international criminal law regime is born not of a desire to undermine the regime, but to ask what it could have been, and might still be 20 Gerry J Simpson, ‘War Crimes, A Critical Introduction’, in Gerry J Simpson and Timothy L H McCormack (eds.), The Law of War Crimes: National and International. .. are the only crimes which have been punished before international criminal tribunals (ICTs) All four are present in some form in the 1998 Rome Statute.16 They are also the crimes which comprised the streamlined ILC Draft Code of Crimes Against the Peace and Security of Mankind.17 The Draft Code declared (in Article 1) that Crimes against the peace and security of mankind are crimes under international. .. Security and Cooperation in Europe California Western International Law Journal Case Western Reserve International Journal Canadian Yearbook of International Law De Paul Law Review Dickinson Journal of International Law Duke Journal of Comparative and International Law Denver Journal of International Law and Policy European Court of Human Rights Ethics and International Affairs European Journal of Crime,... Nations War Crimes Commission University of Pennsylvania Law Review United States Court Marital Appeals Villanova Law Review Virginia Journal of International Law Vanderbilt Journal of Transnational Law World Court Reports Yale Journal of International Law Yale Law Journal Yearbook of International Humanitarian Law Yearbook of the International Law Commission Introduction This is a book about international. .. Protocol Arizona Journal of International and Comparative Law American Society of International Law Assembly of States Parties American University Journal of International Law and Politics Before Common Era British Foreign and State Papers Boston University International Law Journal British Yearbook of International Law California Law Review Case Western Reserve Journal of International Law Common Era... most serious crimes of concern to the international community of States as a whole, the same cannot be said for all treaty crimes such as interference with submarine cables.14 Treaty crimes such as drug trafficking are also often controversial, and not universally accepted.15 8 10 11 12 13 14 15 9 1019 UNTS 175 See also Broomhall, International Justice, pp 13 19 See further Broomhall, International . This page intentionally left blank Prosecuting International Crimes This book discusses the legitimacy of the international criminal law regime. It. the series can be found at the end of this volume. Prosecuting International Crimes Selectivity and the International Criminal Law Regime Robert Cryer