International

Criminal Law
Dorcas Phanice Olasya – R80/55581/2019
Cyndia Kipchumba – Nguli – R80/55684/2019
 From Nuremberg to the Hague: The Nuremberg Legacy
“Don't worry about it because, who after all, today, remembers the fate of the Armenians” Adolf Hitler to his German Generals
• Nazi regime - Adolf Hitler executed in extermination camps, at least six 6. Crimes punishable under international law include: Crimes against peace,
million Jews, three million others including Pols, handicapped peoples War crimes, and crimes against humanity.
and homosexuals. 7. Complicity in the commission of a crime against peace, a war crime, or a
crime against humanity as set forth in Principle VI is a crime under
• When allied leaders got the upper hand, ending the world war II, international law.
Winston Churchill, Franklin Delano Roosevelt (FDR) and Joseph Stalin
held a debate on how to execute 50k Nazi leaders. In 1945, after the
death of FDR, US started to surface the idea of prosecution.
• Before Nuremberg there was no prosecutions of anybody for things
that they did in their own country.
• The bench was composed of an American judge, a British judge, a
Russian judge, and a French judge. Nuremberg for the first time said
the following (Also known us the Nuremberg principles):
1. An individual, who commits war crimes or crimes against humanity or the
crime of waging an aggressive war, could be held individually criminally
responsible. They could be prosecuted in any country around the world,
under universal jurisdiction or by an international tribunal.
2. That just because domestic law did not impose a penalty or did not say
something was a crime, was not a defense.
3. Head of State is not exculpated from individual criminal responsibility.
The famous defendants, Herman Goering, and the other Nazi leaders. Adolf Hitler had
4. Obedience to orders was not allowed as a defense. “Just implementing committed suicide so he wasn't there anymore. And Robert Jackson, who was the United
the law (not making it) not a defense”.
States Supreme Court Judge who had been picked to be the chief prosecutor at Nuremberg.
5. Any person charged with a crime under international law has the right to a Start date: Nov 20, 1945
fair trial on the facts and law.
End date: Oct 1, 1946
From Nuremberg to the Hague: Golden Age of Impunity
“A person stands a better chance for being prosecuted for killing one or ten people, then for killing 100,000 or a million.” Jose Ayala
Lasso, The Former High Commissioner for Human Rights.
• Joseph Stalin, the leader of the Soviet Union, killed c20 million people in his purges. These were political opponents of his regime.
He was not held to account under Nuremberg precedent. (When a couple of years after Nuremberg, in 1948, they negotiated
the genocide convention making genocide a crime. Joseph Stalin, and his delegation put in a clause that said genocide does
not apply when a leader kills political opponents. It only applies when you kill opponents who are from a different nationality, race, or
religion - and genocide doesn't apply to this day to crimes against political opponents.)
• The pole pot regime and the famous killing fields where about a million Cambodians were killed.
• Idi Amin, in Uganda who killed about half of his population and again, was not held to account.
• In the late 1980s, the leader of Iraq, Saddam Hussein killed millions of Kurds in the northern part of his country using chemical
weapons and at the time he was not held to account.
 • The ‘golden age of impunity’ ended in 1993 when genocide returned to
Europe for the first time since world war II - The international community
dusted off the old Nuremberg charter, and they created the first international
tribunal, since Nuremberg, the Yugoslavia Tribunal. This tribunal was applied
to the Rwanda genocide. Other tribunals formed in 2002 to deal with the
atrocities in Sierra Leon and convicted the leader of neighboring Liberia,
Charles Taylor. Finally another tribunal to convict atrocities in Cambodia,
From surviving members of the Khmer Rouge, and in 2006. After which the world
decided to negotiate a permanent International Criminal Court at the hague.

Nuremberg to
Thinking that the ad-hoc approach was too costly, too time consuming and
too politically difficult.

the Hague:
• There are 122 countries that are party to this new permanent International
Criminal Court. Note however, that the United States and Russia have signed
but not yet ratified the ICC statute, and China has done neither and other

New Era of countries in the Middle East and in Asia have also decided to stay outside.
• The International Criminal Court however was the subject of negotiations and

Accountability compromises. Ultimately, they decided that the only crimes within its
jurisdiction to begin with would be war crimes, crimes against humanity, and
genocide. They left out the crime of aggression. Ten years later they decided
that they may add the crime of aggression but there are several hoops that
might have to still be overcome. Note, however that other crimes like
terrorism and piracy are not included within this new court's jurisdiction.
Criticisms of Nuremberg
• Only four prosecutors drafted the charter, and then those same four people drafted the indictment, and then two of these
prosecutors got promotions.
• There was also no Court of Appeal. What the judges decided was the final verdict. (there was a clause in the Nuremberg
Charter that said that the defendants were not allowed to claim that the judges had any bias, and try to have them removed, for
any reason whatsoever)
• The evidence that came in was not always evidence that would be allowed in courts of many of the same countries that were
prosecuting these defendants, there were hundreds of thousands of unsigned affidavits that were allowed into evidence.
 • Definition
• International Crimes
Contents • Sources of International Criminal Law
• The Concept of General Principles
• Conclusion
 International criminal law is a developing part of international
law that has attracted growing attention as a result of mass
atrocities and heinous international crimes committed in
different parts of the world.
This body of international law is designed to prosecute the
individuals responsible for the commission of these crimes and
provide redress. It is contained in the Rome statute on the
International Criminal Court that was adopted at a diplomatic
conference in Rome Italy on 17th July 1998 and entered into
force on 1st July 2002.
International criminal law (ICL) is basically a set of laws, norms,

Definition
and rules governing international crimes and their oppression
tendencies, as well as rules and principles addressing conflict
and cooperation between national criminal law systems. It
places responsibility on individual persons, not states or
organizations and proscribes and punishes acts that are
defined as crimes by international law
Criminal accountability for serious crimes is of fundamental
importance with regard to respect for the rule of law,
deterrence of future violations, and the provision of redress
and justice for victims. It caters for the most serious violations
of international human rights law (IHRL) and IHL that are
considered international crimes.
 Article 5 of the Rome Statute identifies 4 categories of
international crimes :

International
1. Genocide
2. War crimes

Crimes 3. Crimes against humanity

4. Crime of aggression.
 Genocide (Article 6)

Genocide is defined as the intent to

destroy, in whole or in part, a national,
ethnical, racial or religious group. The
acts that amount to genocide if
committed in this context are:
1. Killings;
2. Causing serious bodily harm;
3. Inflicting conditions of life
calculated to bring about its
physical destruction; imposing
measures intended to prevent
birth; or
4. Forcibly transferring children of the
group to another group. Photo by Bettman/Corbis - Cambodia
 Crimes against
humanity (Article 7)

Crimes against humanity summarizes

several acts amounting to serious
human rights violations when
committed as part of a widespread or
systematic attack against a civilian
population.
Crimes against humanity include acts
such as, but not limited to torture,
murder, extermination, enslavement,
deportation or forcible transfer, sexual
violence, persecution, and the crime of
apartheid.

Photo
Photo by by Raymond
Photograph of theD'Addario
US ARmy//Public
Publicdomain
domain
 War Crimes
(Article 8)

The concept of war crimes refers to a range of acts

judged to be beyond civilized human behavior, even
in the extreme conditions of warfare. The acts
defined as war crimes concern both the methods and
the materials of warfare. In 1949 a narrow list of war
crimes committed during international armed conflict,
known as grave breaches, was approved in four
Geneva Conventions

As evidence of this development in international law,

the Rome Statute of the International Criminal Court
recognized a broad range of war crimes committed
during internal armed conflict. They include but are not
limited to willful killing, wanton destruction of private
property, torture or inhuman treatment, willfully
causing great suffering or serious injury to body or
health, unlawful deportation or transfer, taking of
hostages, recruitment and use of child soldiers, and
willfully depriving a person of the rights of fair and
regular trial, all occurring in the context of an armed
conflict.

Unlike crimes against humanity there is no need to

establish a widespread or systematic practice of
massacres, as one single incident, such as recruiting
one child soldier or one incident of torture during an
armed conflict would amount to a war crime

Photo by Watchmodo.com
Crime of Aggression
(Article 8bis)

This refers to the planning,

preparation, initiation or execution by a
person in a position effectively to
exercise control over or to direct the
political or military action of a state to
an act of aggression which by its
character, gravity and scale
constitutes a manifest violation of the
charter of the United Nations.
Aggression is the use of armed forces
by the state against the sovereignty,
territorial integrity or political
independence of another state.

Photo by International Crimes Database- Nuremburg

 The sources of international criminal law are the same as
those of general international law mentioned in article 38(1) of
the Statute of the International Court of Justice. As
international criminal law is a subset of public international law,
Sources of the sources of ICL are largely the same as those of public
international law. The sources of law can sometimes overlap
International and have a dynamic relationship.
1. International treaties;
Criminal Law 2. Customary International Law;
3. General Principles of ICL;
4. Resolution of International Bodies;
International treaties

ICL has many treaty sources. Today,

the ICC Statute, is a main source of
ICL e.g.
1. Rome Statute of International
Criminal Court(1998)
2. Geneva Conventions (1949) with
Additional Protocols I and II (1977)
3. Genocide Convention(1948)
4. Convention against Torture(1984)

Photo by Bettman/Getty - Nuremburg

 Customary
International Law

This is a general belief or acceptance

among states that a certain practice is
required by law. This sense of legal
obligation, coupled with state practice,
differentiates custom from acts of
courtesy, fairness or mere usage.
Treaties only bind states that are
parties to them, whereas general
customary law binds all states and
“local” custom binds as few as two
states only. Much of the content of
substantive ICL exists in customary
law, whether or not the same rules
simultaneously exist in treaty law
Photo by Bettman/Getty - Nuremburg
General Principles of
International Law

Where no rule in custom or treaty law

could be found, the ICC has on occasion
—and usually with some
circumspection—considered general
principles of law in search of an
applicable ICL rule.

These principles are formulated through

the process of examining the national
laws and practices of principal legal
systems of the world in order to
determine whether the court could
deduce a common approach. If a
common approach exists, the court
could derive a general principle of law Photo by Bettman/Getty - Nuremburg
that could be applied in the ICL context
 Resolution of
International Bodies

They supplement and clarify the rules of

procedure contained in the ICC statute
itself.

They are binding on the court and all

state parties.
If the provisions of the rules of procedure
and evidence contradict the statute, the
ICC statute takes precedence

Photo by Raymond D'Addario / Public domain

 • Decisions of international courts e.g. decisions of the International Military
Tribunal at Nuremberg, the International Military Tribunal for the Far East, the
Yugoslavia Tribunal and The Rwanda Tribunal
• Legal Scholars – Teachings of the most highly qualified publicists (Reports and
statements of international law associations e.g. the insitut du Droit
International and International Law Association as well as the United Nations
International Law Commission.
• Resolution of Internal organs- Express the opinio juris of the participating

Subsidiary
states and thus contribute to the emergence and confirmation of the
customary international law e.g. the ICTY and ICTR statutes adopted by the
UN security council
• International Law commissions drafts and comments – The report and drafts

means for are aids in determining customary international law and general principle of
law- have significant influence on the development of international criminal law
e.g. 1996 Draft code of crimes against the peace and security of mankind.

determining • Drafts and comments of international Scholarly associations- Includes works

of private scholarly associations such as The Association International de Droit
Penal,the International law association and The Institute de Droit International-
Criminal-Law

the law • Decisions of National Courts- Double nature of the function of National courts
in determining ICL: As an expression of opinio juris and as state practice, they
may confirm or create customary law and contribute to the formation of
general principles of law. Decisions of national courts can serve as aid in
recognizing law, helping to determine the content of norm of ICL
• National Legislation can also influence ICL as expression of opinio juris as well
as state practice e.g. in the form of an adoption on international penal norm
as part of national law
• Military manuals
 Part 3 of the Rome Statute sets out fundamental principles
applicable for international crimes. There are several basic
principles upon which international criminal law is based that
The Concept of are key system-building rules, which form the foundations of
and conditions for criminal responsibility for the commission of
General Principles crimes under international law.
The Concept of General Principles
The principle of legality ( NULLUM CRIMEN sine lege) (Article 22): It addresses the principle of legality. It states that an
individual may only be criminally responsible for conduct which was unambiguously criminal at the time of its commission
The principle of nulla poena sine lege (Article 23): Sets out that an individual may only be punished in accordance with the law.
The principle of non-retroactivity ( ratione personae) (Article 24): This principle means that the rules of treaties and domestic
criminal laws implementing ICL, which establish the criminality of certain acts, should not apply to acts which were committed
before the respective treaties and/or domestic criminal laws were entered into force
Individual criminal responsibility (Article 25): It states that a person shall be criminally responsible and liable for punishment for
a crime within the jurisdiction of the Court if that person:
• Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that
other person is criminally responsible;
• Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
• For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its
attempted commission, including providing the means for its commission;
• In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a
common purpose. Such contribution shall be intentional and shall either:
• In respect of the crime of genocide, directly and publicly incites others to commit genocide
The Concept of General Principles Contd.
Exclusion of jurisdiction over persons under eighteen (Article 26): The Court shall have no jurisdiction over any person who
was under the age of 18 at the time of the alleged commission of a crime”. Some countries (such as Israel) argued that the age
should be lower and should correspond to the age permitted for recruitment into the armed forces. With the exception of
the Special Court for Sierra Leone, no other international criminal tribunal has included a minimum age provision in its Statute.

Irrelevance of Official Capacity (Article 27): This article applies equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it,
in and of itself, constitute a ground for reduction of sentence. Additionally, Immunities or special procedural rules which may
attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.

Responsibility of commanders and other superiors (Article 28): A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or
effective authority and control where: –
a) That military commander or person either knew or should have known that the subordinates were committing or about to
commit such crimes; and
b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
The Concept of General Principles Contd.
Exclusion of jurisdiction over persons under eighteen (Article 26): The Court shall have no jurisdiction over any person who was under
the age of 18 at the time of the alleged commission of a crime” . Some countries (such as Israel) argued that the age should be lower
and should correspond to the age permitted for recruitment into the armed forces. With the exception of the Special Court for Sierra
Leone, no other international criminal tribunal has included a minimum age provision in its Statute
Irrelevance of Official Capacity (Article 27): This article applies equally to all persons without any distinction based on official capacity . In
particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute
a ground for reduction of sentence. Additionally, Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person
Responsibility of commanders and other superiors (Article 28): A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or effective
authority and control where: –
a) That military commander or person either knew or should have known that the subordinates were committing or about to
commit such crimes; and
b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
All other superiors - A superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority
and control, where: –
a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing
or about to commit such crimes;
b) The crimes concerned activities that were within the effective responsibility and control of the superior;
c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission
or to submit the matter to the competent authorities for investigation and prosecution.
The Concept of General Principles Contd.
Non-applicability of statute of limitations (Article 29): The extreme gravity of the crimes involved mean that society has an
indefinite interest in prosecution and punishment. This Article acts as a bar to States who might refuse to surrender an individual
to the Court on ground that offence was time barred under national jurisdiction.
Mental element (Article 30): Article 30 provide that unless otherwise provided, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and
knowledge.
Grounds for excluding criminal responsibility (Article 31): The Rome Statute is the first ICL instrument to attempt to codify
defenses. Article 31 provides an non-exhaustive list of deference:
a) Insanity: Similar to the M’Naughton rules, a person shall not be criminally responsible if at the time of the offence, he or she
suffered from a mental disease or a mental defect; Thus their capacity to appreciate the unlawfulness or nature of their
conduct is destroyed; or – Their capacity to control their conduct to conform to the law is destroyed. This defense will be
rarely invoked – ICC is focused on leaders.
b) Intoxication: A person shall not be criminally responsible if at the time of the offence, he or she: is in a state of intoxication –
That destroys their capacity to appreciate the unlawfulness or nature of their conduct; OR – Their capacity to control their
conduct to conform to the law is destroyed. – UNLESS: the person was voluntarily intoxicated.
c) Self-defense: A person shall not be criminally responsible if at the time of the offence if there existed an imminent and
unlawful danger to a person or property by unlawful force; and – the accuser's reaction was proportionate applies to defense
of self, another or property. In the case of defending property: – Confined to war crimes. – Defense of property must be
essential for the survival of the person or another person.
d) Duress/Necessity: A person shall not be criminally responsible if at the time of the offence there exists: – A threat of
imminent death or continuing or imminent serious bodily harm against the person concerned or a third person made by other
persons or by circumstances beyond that person’s control; – The person’s response is a necessary and reasonable reaction to
avoid this threat; and – The person does not intend to cause a greater harm than the one sought to be avoided person.
 The Concept of General Principles Contd.
Mistake of fact or mistake of law (Article 32): Article 32 provides that a mistake of fact or law may be a defense. However, this
defense is based on the common law understanding of mistake of fact or law. A mistake is only relevant when it can be shown
that the mistake has negated the mental element of the offence. Heavily criticized by academics and practitioners: – Article 32 is
superfluous and repetitious. It merely restates the principles outlined in Article 30 of the Statute. – It fails to appreciate the various
nuances and types of mistakes that may exist. Mistake of law: – Ignorance of the law is no excuse – Expressly makes exception
for the defense of superior orders
Superior orders and prescription of law (Article 33): Article 33 of the Rome Statute provides an accused who has acted
pursuant to an order of a Government or of a military or civilian superior, with the defense of superior orders provided that: –
a) The accused was under a legal obligation to obey the orders of the Government or the superior in question
b) The accused did not know that the order was unlawful; and
c) The order was not manifestly unlawful.
Article 33(2) provides that orders to commit genocide or crimes against humanity are manifestly unlawful.
Kenya ratified the Rome Statute in 2005, and incorporated ICC crimes
into national legislation through the 2008 International Crimes Act.
After the 2007 elections in Kenya, widespread violence ensued,
resulting in over 1000 dead, 600,000 displaced and hundreds sexually
assaulted.
In 2010, the ICC Office of the Prosecutor used its motu proprio powers
for the first time in opening an investigation into alleged crimes against
humanity during Kenya’s 2007-08 post-election violence.
Cases: Uhuru Kenyatta, William Ruto and Joshua Sang
The ICC trial of Kenyan politician Uhuru Kenyatta ended in 2015 due to
a lack of evidence and alleged witness-tampering. He was charged
with crimes against humanity.
The ICC trial of Kenyan politician William Ruto and radio broadcaster
Joshua Sang ended in 2016 due to a lack of evidence and alleged
witness-tampering. They were charged with crimes against humanity.
 ICC has grown into an institution, that has become, very effective
at indicting individuals, at getting custody of individuals, and of
showing that International Criminal Law is not just something that

Conclusion
is to talk about. That it's not just a myth.
And in the end the idea of International Criminal Law is to bring
peace through justice. To tell the world that these kinds of crimes
are unlawful. And that if you support a leader who commits these
crimes, the leader can be held responsible. And so can you.