Routledge handbook of international criminal law

Routledge Handbook of International Criminal Law

International criminal law has developed extraordinarily quickly over the last

decade, with the creation of ad hoc tribunals for the former Yugoslavia and

Rwanda, and the establishment of a permanent International Criminal Court.

This book provides a timely and comprehensive survey of emerging and existing

areas of international criminal law.

The Handbook features new, specially commissioned papers by a range of

international and leading experts in the field. It contains reflections on the

theoretical aspects and contemporary debates in international criminal law.

The book is split into four parts for ease of reference:

• The Historical and Institutional Framework —Sets international criminal

law firmly in context with individual chapters on the important developments

and key institutions which have been established.

• The Crimes —Identifies and analyses international crimes, including a

chapter on aggression.

• The Practice of International Tribunals —Focuses on topics relating to the

practice and procedure of international criminal law.

• Key Issues in International Criminal Law —Goes on to explore issues of

importance such as universal jurisdiction, amnesties and international

criminal law and human rights.

Providing easy access to up-to-date and authoritative articles covering all key

aspects of international criminal law, this book is an essential reference work for

students, scholars and practitioners working in the field.

William A. Schabas is director of the Irish Centre for Human Rights at the

National University of Ireland, Galway, where he also holds the chair in human

rights law.

Nadia Bernaz is Lecturer in Law at Middlesex University, London.

Routledge Handbook of International Criminal Law

Edited by William A. Schabas and Nadia Bernaz

LONDON AND NEW TORK

First published 2011

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

Simultaneously published in the USA and Canada

by Routledge

270 Madison Avenue, New York, NY 10016

Routledge is an imprint of the Taylor & Francis Group, an informa business

This edition published in the Taylor & Francis e-Library, 2011.

To purchase your own copy of this or any of Taylor & Francis or Routledge’s

collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

© 2011 editorial matter and selection: William A. Schabas and Nadia Bernaz,

individual chapters: the contributors.

All rights reserved. No part of this book may be reprinted or reproduced or

utilised in any form or by any electronic, mechanical, or other means, now

known or hereafter invented, including photocopying and recording, or in any

information storage or retrieval system, without permission in writing from the

publishers.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

Routledge handbook of international criminal law / edited by William

Schabas and Nadia Bernaz.

p. cm.

ISBN 978-0-415-55203-5 (hbk) – ISBN 978-0-203-83689-7 (ebk)

1. International criminal courts. 2. International offenses. I. Schabas,

William, A. 1950– II. Bernaz, Nadia. III. Title: Handbook of international

criminal law.

KZ6304.R68 2011

345–dc22 2010022449

ISBN 0-203-83689-8 Master e-book ISBN

ISBN13: 978-0-415-55203-5 (hbk)

ISBN13: 978-0-203-83689-7 (ebk)

Contents

Acknowledgements ix

Contributors xi

Introduction

William A. Schabas and Nadia Bernaz 1

PART I Historical and institutional framework 3

1 Trial at Nuremberg

Guénaël Mettraux 5

2 The Tokyo Trial

Neil Boister 17

3 The trials of Eichmann, Barbie and Finta

Joseph Powderly 33

4 The ad hoc international criminal tribunals: launching a new era of

accountability

Michael P. Scharf and Margaux Day 51

5 The International Criminal Court

David Scheffer 67

6 Hybrid tribunals

Fidelma Donlon 85

PART II The crimes 107

7 Genocide

Paola Gaeta 109

8 Crimes against humanity

Margaret M.deGuzman 121

9 War crimes

Anthony Cullen 139

10 Aggression

Nicolaos Strapatsas 155

11 Terrorism as an international crime

Fiona de Londras 169

12 Drug crimes and money laundering

Robert Cryer 181

PART III The practice of international tribunals 195

13 Understanding the complexities of international criminal tribunal

jurisdiction

Leila Nadya Sadat 197

14 Admissibility in international criminal law

Mohamed M.El Zeidy 211

15 Defences to international crimes

Shane Darcy 231

16 Participation in crimes in the jurisprudence of the ICTY and ICTR

Mohamed Elewa Badar 247

17 International criminal procedures:trial and appeal procedures

Håkan Friman 271

18 Sentencing and penalties

Nadia Bernaz 289

19 State cooperation and transfers

Kimberly Prost 305

20 Evidence

Nancy Amoury Combs 323

PART IV Key issues in international criminal law 335

21 The rise and fall of universal jurisdiction

Luc Reydams 337

22 Immunities

Rémy Prouvèze 355

23 Truth commissions

Eric Wiebelhaus-Brahm 369

24 State responsibility and international crimes

Eric Wyler and León Arturo Castellanos-Jankiewicz 385

25 International criminal law and victims’ rights

Carla Ferstman 407

26 Amnesties

Louise Mallinder 419

27 International criminal law and human rights

Thomas Margueritte 435

Conclusions

William A. Schabas and Nadia Bernaz 453

Index 455

Acknowledgements

The editors are grateful to Victoria J. Moore who reviewed most of the

manuscript and made constructive suggestions. We remain responsible for all the

errors that may be found in this book.

Contributors

Mohamed Elewa Badar is a Lecturer in Law and Deputy Director, Centre for

International and Public Law, Brunel Law School, Brunel University, London.

He is the author of Mens Rea in International Criminal Law (Oxford: Hart,

December 2010).

Nadia Bernaz (PhD, Aix-Marseilles III, France) is Lecturer in Law at

Middlesex University, London (UK) and Adjunct Lecturer of the Irish Centre

for Human Rights (NUI Galway, Republic of Ireland). She is the author of Le

droit international et la peine de mort (International Law and the Death

Penalty, Paris: La Documentation française, 2008) and has written and

presented papers on a wide range of subjects in international law and human

rights law.

Neil Boister BA, LLB, LLM (Natal), PhD (Nottingham) joined the University of

Canterbury (New Zealand) from the University of Nottingham at the

beginning of 2003. He teaches and researches in criminal law, international

criminal law and transnational criminal law. Together with Professor Robert

Cryer of the University of Birmingham he is the co-author of The Tokyo

International Military Tribunal, A Reappraisal (Oxford University Press,

2008) 382 pp and co-editor of Documents on the Tokyo International Military

Tribunal (Oxford University Press, 2008) 1568 pp.

León Arturo Castellanos-Jankiewicz is Licenciado en Derecho (Universidad

Anáhuac Mayab, Mexico), and holds a Master in International Law from the

Graduate Institute of International and Development Studies in Geneva. He is

currently a PhD candidate at the Amsterdam Centre for International Law.

Nancy Amoury Combs is the Cabell Professor of Law at William and Mary

Law School. She earned her JD from the University of California at Berkeley

School of Law and her PhD from Leiden University. She has published

extensively on topics of international criminal law.

Robert Cryer is Professor of International and Criminal Law at the University

of Birmingham. He is the author, inter alia, of Prosecuting International

Crimes (Cambridge, 2005), The Tokyo International Military Tribunal: A

Reappraisal (Oxford University Press, 2008)(with Neil Boister) and An

Introduction to International Criminal Law and Procedure (Cambridge, 2nd

ed, 2010)(with Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst).

Anthony Cullen BA, MA, LLM, PhD is a Researcher on the joint British Red

Cross and International Committee of the Red Cross (ICRC) project to update

the collection of practice underlying the ICRC’s Study on Customary

International Humanitarian Law. He is also a Research Fellow at the

Lauterpacht Centre for International Law and a Visiting Fellow at Wolfson

College, University of Cambridge. His book The Concept of Non￾International Armed Conflict in International Humanitarian Law was

published by Cambridge University Press in April 2010.

Shane Darcy LLM, PhD is a lecturer at the Irish Centre for Human Rights,

National University of Ireland, Galway. He is the associate editor of Criminal

Law Forum and the author of Collective Responsibility and Accountability

under International Law (Transnational, 2007).

Margaux Day is a federal judicial clerk for Judge Solomon Oliver, Jr, Federal

District Court for the Northern District of Ohio, and is an Adjunct Professor at

Case Western Reserve University School of Law. She was a member of the

2008 Philip C. Jessup International Moot Court World Champion Team.

Fidelma Donlon was Deputy Registrar of the Bosnian War Crimes Chamber and

former Head of the Criminal Institutions and Prosecutorial Reform Unit in the

Office of the High Representative. She was advisor to the Special Court for

Sierra Leone on its residual issues and its residual court and the British

Institute for International and Comparative Law on the ‘Armed Conflict and

Transitional Justice Law as a Solution’ EU project. She is a PhD candidate at

the Irish Centre for Human Rights, National University of Ireland.

Margaret M. deGuzman is Assistant Professor of Law, Temple University

Beasley School of Law. Professor deGuzman teaches and writes about

international criminal law and was a legal advisor to the Senegal delegation at

the Rome Conference on the International Criminal Court.

Fiona de Londras BCL, LLM, PhD (NUI) is a lecturer in the School of Law,

University College Dublin, where she is also affiliated with the Institute of

Criminology. She has published on terrorism and counter-terrorism in journals

such as the Oxford Journal of Legal Studies, Modern Law Review and Israel

Law Review.

Mohamed M. El Zeidy (PhD, National University of Ireland, Galway) is a

Legal Officer at the Pre-Trial Division of the International Criminal Court.

Prior to his current position, he served as a judge and senior public prosecutor

in Egypt (1997–2007). He is widely published in international criminal law,

the author of The Principle of Complementarity in International Criminal Law

(Martinus Nijhoff, 2008) and co-editor of The ICC and Complementarity from

Theory to Practice (Cambridge University Press, 2010).

Carla Ferstman is Director of REDRESS (www.redress.org).

Håkan Friman is Deputy Director-General at the Swedish Ministry of Justice,

Division for Criminal Cases and International Judicial Cooperation. He is

visiting Professor at University College London, Faculty of Laws, a Member

of the Swedish ICC Delegation and the co-author of An Introduction to

International Criminal Law and Procedure (Cambridge: Cambridge

University Press, 2nd edn, 2010).

Paola Gaeta is full Professor at the Law Faculty of the University of Geneva,

Adjunct Professor at the Graduate Institute of International and Development

Studies and Director of the LLM Programme of the Geneva Academy of

International Humanitarian Law and Human Rights. Her publications include

The Rome Statute of the International Criminal Court (ed. with A. Cassese

and J. R. W. D. Jones), 2002, and The UN Genocide Convention. A

Commentary (ed,). 2009.

Louise Mallinder is a lecturer at the Transitional Justice Institute, University of

Ulster. She has published her doctoral thesis as Amnesty, Human Rights and

Political Transitions: Bridging the Peace and Justice Divide (Hart Publishing,

2008) and this monograph was awarded the 2009 Hart SLSA Early Career

Award and was jointly awarded the 2009 British Society of Criminology Book

Prize. Before starting the lectureship in November 2009, Louise worked as a

research fellow on a two-year AHRC-funded research project which

investigated the impact of amnesty laws within Argentina, Bosnia￾Herzegovina, South Africa, Uganda and Uruguay.

Thomas Margueritte is a PhD candidate at the Centre de Recherches

Internationales et Communautaires of the Université Paul Cézanne (Aix

Marseille III, France). His research interests are international criminal law,

international humanitarian law and human rights. Prior to this, he was a fellow

of the Court of Bosnia Herzegovina.

Guénaël Mettraux appears as counsel and consultant before international

criminal jurisdictions. He is a guest Professor at the University of Leiden and

at the Academy of Humanitarian Law (Geneva) and has published extensively,

including three books published by Oxford University Press.

Joseph Powderly is Researcher in International Criminal and International

Humanitarian Law at the TMC Asser Instituut, The Hague. He is a PhD

candidate at the Irish Centre for Human Rights, and was awarded a

Government of Ireland Postgraduate Scholarship in 2008. He is a contributor

and co-editor with Dr Shane Darcy of Judicial Creativity in International

Criminal Tribunals, which will be published by Oxford University Press in

2010.

Kimberly Prost is an ad litem judge at the ICTY. She was formerly Chief of the

Legal Advisory Section UNODC, Head of Criminal Law Section

Commonwealth Secretariat and Head of Canadian International Assistance

Group. She was a member of the Canadian delegation for the negotiation of

the Rome Statute and she is the author of several publications on the ICC,

international criminal law and international cooperation in criminal matters.

Rémy Prouvèze is a researcher at the Centre d’Etudes et de Recherches

Internationales et Communautaires (CERIC) in Aix-en-Provence (France).

Specializing in public international law and international criminal law

(publishing several papers in these fields), he was awarded a PhD for his study

on Immunity from Criminal Jurisdiction of State Authorities in International

Law at the Université Paul Cézanne in Aix-en-Provence in 2006.

Luc Reydams is an Associate Professional Specialist in the Department of

Political Science at the University of Notre Dame. He is the author of

Universal Jurisdiction: International and Municipal Legal Perspectives

(Oxford: Oxford University Press, 2003) and the editor of the Global Activism

Reader (forthcoming with Continuum Publishing).

Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director

of the Whitney R. Harris World Law Institute at the Washington University

School of Law (USA). The author of more than 50 articles and several books,

and the recipient of several academic prizes, Professor Sadat is well-known

for her work in international criminal law and human rights. Professor Sadat

holds leadership positions in several learned societies, has served as a

Commissioner on the United States Commission for International Religious

Freedom, and will serve as the Alexis de Tocqueville Distinguished Fulbright

Chair (Paris, France) in Spring 2011.

William A. Schabas is director of the Irish Centre for Human Rights at the

National University of Ireland, Galway, where he holds the chair in human

rights law. He is also a Global Legal Scholar at the University of Warwick, in

the United Kingdom, and honorary professor at the Chinese Academy of

Social Sciences, in Beijing. He is the author of more than 20 books and 275

journal articles, on such subjects as the abolition of capital punishment,

genocide and the international criminal tribunals. Professor Schabas was a

member of the Sierra Leone Truth and Reconciliation Commission. He is the

chairman of the Board of Trustees of the United Nations Voluntary Fund for

Technical Cooperation in Human Rights. He is an Officer of the Order of

Canada and a member of the Royal Irish Academy.

Michael P. Scharf is the John Deaver Drinko-Baker & Hostetler Professor of

Law, and Director of the Frederick K. Cox International Law Center, at Case

Western Reserve University School of Law. He is also Managing Director of

the Public International Law & Policy Group, an NGO that provides pro bono

legal assistance to governments and international tribunals related to

prosecution of war crimes.

David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and

Director of the Center for International Human Rights at Northwestern

University School of Law, Chicago, Illinois. He was the US Ambassador at

Large for War Crimes Issues from 1997 to 2001.

Nicolaos Strapatsas (LLB UQAM, LLM NUIG) is a doctoral Candidate at the

Irish Centre for Human Rights (National University of Ireland, Galway) and a

lecturer at the University of Quebec at Montreal. He also is the associate

editor of Criminal Law Forum.

Eric Wiebelhaus-Brahm is currently a Senior Research Fellow at the

International Human Rights Law Institute at DePaul University. His

publications include Truth Commissions and Transitional Societies: The

Impact on Human Rights and Democracy (Routledge, 2010).

Eric Wyler is Professor of International Law and has taught at the following

Universities: Neuchâtel, Lausanne, Geneva, Paris II-Pantheon Assas and Paris

I-Sorbonne (Visiting Professor). He currently is associated Professor at

SciencesPo, Paris, Chargé d’enseignement at the Graduate Institute of

International Studies (HEID), Geneva, and at the European Institute of the

University of Geneva. He is the author of L’illicite et la condition des

personnes privées (1995), L’éthique du droit international (1997, with Alain

Papaux), L’extranéité ou le dépassement de l’ordre juridique étatique (1999,

Wyler-Papaux, ed.).

1

Introduction

William A. Schabas and Nadia Bernaz

The chapter headings of this handbook provide a good indication of the meaning

of the term ‘international criminal law’. Nevertheless, it is not a simple matter to

furnish a succinct definition. The French language distinguishes between droit

international pénal and droit pénal international. The difference between the

two terms seems to reside largely in the types of crimes they address. Thus, droit

pénal international refers to a body of law governing relationships between

states in the suppression of so-called ordinary crimes, such as murder and rape,

as well as organized criminal activity when it takes on an international

dimension. By contrast, droit inter national pénal is focussed on crimes that are

international in nature, generally because of their crossborder or transnational

dimensions. Piracy is the classic example.

But when today’s lawyers and specialists talk of ‘international criminal law’,

they are rarely talking about piracy. Rather, the focus is on crimes that are also,

by and large, gross and systematic violations of human rights: genocide, crimes

against humanity and war crimes. The acts underlying these offences, which are

said to ‘shock the conscience of humanity’, have been perpetrated since the

beginning of human society. However, their codification as international crimes

is a recent phenomenon.

The first efforts at defining international war crimes were made at the Paris

Peace Conference in 1919. There is a list in the report of the Commission on

Responsibilities that includes murders, torture, rape and the murder (but not the

taking) of hostages, as well as acts that today would not figure in a list of

international crimes, such as destruction of fishing boats and poisoning of wells.

The post-world war period was only a foretaste. The first really dynamic period

began in the final months of the Second World War. It brought with it a

recognition of three new categories of international crime: genocide, crimes

against humanity and crimes against peace. The international military tribunals

that sat at Nuremberg and Tokyo were the first truly international trials. But in

the early 1950s, it all ground to a halt.

International criminal law went through its great renaissance in the 1990s.

This exciting period is still continuing, and there is no end in sight. It has

brought with it new institutions, most of them temporary, but also a permanent