The concept of public order, and consequently, the exercise of criminal jurisdiction is closely connected with national sovereignty


Cryer et al. (at 8): An int’l. crime may be defined as an offence which is created by int’l. law itself, without requiring the intervention of domestic law



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Cryer et al. (at 8): An int’l. crime may be defined as an offence which is created by int’l. law itself, without requiring the intervention of domestic law.

  • SO: To constitute an int’l. crime, a conduct does not have to be proscribed by national law, int’l. law is directly applicable. In other words, it is irrelevant whether national law criminalises the act or not.



  • According to one view (Bassiouni), norms regarding certain int’l. crimes* have attained the level of jus cogens. These are, the crime of aggession, crimes against humanity, piracy, slavery and similar practices, and torture. The results of this qualification are that:

    • According to one view (Bassiouni), norms regarding certain int’l. crimes* have attained the level of jus cogens. These are, the crime of aggession, crimes against humanity, piracy, slavery and similar practices, and torture. The results of this qualification are that:

    • - These obligations are non-derogable in times of war as well as peace.

    • - There is the duty to prosecute or extradite,

    • - Statutes of limitation are not applicable for such crimes,

    • - There is universal jurisdiction over such crimes,

    • - States have an obligatio erga omnes not to grant impunity to the violators of such crimes.

    • * Note that his understanding of int’l. crime is much wider than ours, and comprises 26 categories of crimes.



    What elements are required to make a crime an int’l. one? An offense will fall under ICL if it meets three conditions (Werle at 29):

    • What elements are required to make a crime an int’l. one? An offense will fall under ICL if it meets three conditions (Werle at 29):

    • - It must entail individual criminal responsibility;

    • - The norm must be part of the body of int’l. law;

    • - The offense must be punishable regardless of whether it has been incorporated into domestic law.

    • On the other hand:

    • - There is no need for State implication: State involvement is not indispensable (but, usually, this will be the case). Individual criminal responsibility under ICL arises irrespective of whether or not the perpetrator is a State agent, the official status of the perpetrator is almost always irrelevant (with the exception of the crime of aggression)

    • - There is no need for the offence to bear a transnational nature (although it is almost inevitable);

    • - The gravity of the offence or the practice of States is not the determining element.



    According to Cassese (at. 11-2), int’l. crimes result from the cumulative presence of the following elements:

    • According to Cassese (at. 11-2), int’l. crimes result from the cumulative presence of the following elements:

    • - They violate int’l. customary rules or treaty provisions;

    • - They regard rules that are binding on all states and individuals, and that are intended to protect values of importance to the international community as a whole;

    • There is a universal interest in repressing these crimes, therefore the perpetrators may be punished and prosecuted by any state (subject to certain conditions);

    • If the perpetrator has acted in an official capacity (i.e. as a de jure or de facto state official), the state on whose behalf the act was committed can not claim immunity from foreign jurisdiction[1].

    • [1] Although the individual may enjoy personal immunity (see ICJ judgment in “The Arrest Warrant”, Congo v Belgium).



    At the end of the day, what is decisive is inter-state consent: existing treaties or custom should consider the conduct to amount to an int’l. crime.

    • At the end of the day, what is decisive is inter-state consent: existing treaties or custom should consider the conduct to amount to an int’l. crime.

    • Hence, states get to decide what types of criminal offences amount to int’l. crimes.

    • At doctrinal level, Werle (at 32) argues that all int’l. crimes presume a context of systematic or large-scale use of force (“the int’l. element of int’l. crimes”). This determination is true but it is not decisive in qualifying a certain act as an int’l. crime.



    According to the founding documents of the various int’l. criminal tribunals established so far, “core” int’l. crimes (crimes under int’l. law/ int’l. law crimes) are the following:

    • According to the founding documents of the various int’l. criminal tribunals established so far, “core” int’l. crimes (crimes under int’l. law/ int’l. law crimes) are the following:

    • Genocide, crimes against humanity, war crimes, aggression.

    • The status of piracy is debatable, it is not listed in any of the statutes of the various ICTs. Cassese (at 12) and Werle (at 30) argue that it is not an int’l. crime. It might be said that it is a crime under domestic law to which universal jurisdiction applies pursuant to customary int’l. law.

    • According to Cassese, torture and serious acts of state-sponsored or state-tolerated terrorism should be included too.

    • I also view torture to constitute a discrete int’l. crime (as accepted by the UN Human Rights Committee in its General View of 02.11.1994). This is where I differ from Cryer et al. (and many other writers)




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