International Criminal Law

Traditionally, international law has defined very few crimes, proscribing only acts generally viewed as a serious threat to the interests of the international community as a whole or to its most fundamental values. For centuries piracy has been recognized as an international crime under customary international law. Slave trading joined the list at the end of the nineteenth century when that practice was outlawed by treaty. As technological advances, along with increasing trade and globalization, have made the world seem smaller, more such crimes have gained recognition.

The basic jurisdiction of any sovereign state includes the right to define and punish crimes. The U.S. Constitution provides (Art. I, sec. 8, col. 10) that Congress shall have power "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations." Under this provision, Congress may identify and declare criminal under U.S. law, acts that are criminal under international law. Normally this is done by legislation. The domestic law of the United States is part of the fabric of international criminal law insofar as that national law provides for the recognition and punishment of international offenses. It has generally been the practice of the United States to recognize and punish international crimes only when they are embodied in U.S.treaties and implemented by federal legislation.

Some of the key categories of international crimes are briefly discussed below, but this list is far from exhaustive.

Aggression. Throughout history, the world community has sought to prevent war and eliminate aggression. In the Middle Ages, theories on "just" and "unjust" war were formulated. After World War I, efforts to curb war resulted in the establishment of the League of Nations. The Treaty of Versailles of 1919 called for the prosecutions of Kaiser Wilhelm II for waging unjust war, but efforts to carry out this provision were fruitless. The Kellogg-Briand Pact of 1928 provided for the formal renunciation of war as an instrument of national policy. This renunciation became the basis of the London Charter of 8 August 1945, which established in Nuremberg the International Military Tribunal for the prosecution of the major Nazi war criminals, and of the 1946 charter for the International Military Tribunal for the Far East, establishing a similar tribunal in Tokyo. These charters, the indictments and judgments of the tribunals, and the 1947 United Nations resolutions embodying the "Nuremberg Principles," are among the legal sources for considering aggression a "crime against peace." In 1946, the United Nations charter prohibited "aggression," but did not define it.

No real consensus on the meaning of "aggression" was reached until the United Nations' "Definition of Aggression" was agreed upon on 14 December 1974. The definition states that "[a]ggression is the use of armed force against the sovereignty, territorial integrity, or political independence of another state, or in any manner inconsistent with the charter of the United Nations." The definition also enumerates (not exhaustively, however) seven specific examples of aggression and sets forth their legal and political consequences. Thus far, no definition of aggression has been embodied in an international convention, although the issue has been much discussed in the multilateral negotiations. The Statute of the International Criminal Court (ICC), as adopted in Rome in 1998, lists aggression as a crime within the jurisdiction of the ICC, but delays any prosecution for aggression until such time as the parties to the statute can agree upon and adopt a definition of the crime.

Genocide. In 1948, only a few years after the Nazi Holocaust ended, the United Nations General Assembly adopted the text of the Genocide Convention. That text enshrined what was then a new international consensus defining and condemning the crime of genocide. The convention has since achieved very broad international acceptance. According to this definition, genocide occurs when any of five enumerated acts are "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The enumerated acts include killing members of the group, imposing birth control measures upon them, forcibly transferring children from the group, causing them serious bodily or mental harm, or inflicting on the group conditions deliberately calculated to bring about its physical destruction.

In ratifying the Genocide Convention, the parties "confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish" (Article I). The parties also agree to enact the domestic legislation necessary to provide effective penalties for those committing genocide. This provision anticipates and establishes a decentralized control scheme under which the crimes defined by treaty are subject to enforcement under the national criminal law of states. At the same time, the Genocide Convention also refers to the possibility that those charged with genocide might be tried by "such international penal tribunal as may have jurisdiction" (Article VI). This set the stage for efforts to create a permanent International Criminal Court.

War crimes. The humanitarian law of armed conflict is an outgrowth of centuries of warfare, in the course of which the rules and customs governing the conduct of hostilities have evolved. Its development has been stimulated by military experts who recognize that violence and destruction, in excess of that required by actual military necessity, is not only immoral but also counterproductive to the attainment of the political objectives for which military force is used. The term "war crimes" refers to a broad category of acts prohibited during armed conflict that have come to be recognized as crimes under international law. Most war crimes are defined by treaty, although some are outlawed principally by unwritten customary international law. In some cases, even where there is a treaty prohibiting a specific war crime, the treaty's effectiveness is limited by the fact that many states have failed to sign and ratify it.

The most universally accepted source of rules on the regulation of war is the four Geneva Conventions of 12 August 1949, and their two additional protocols of 1977. Almost every country in the world, including the United States, is a party to the Geneva Conventions. These agreements codify many of the principal rules of international law relating to war crimes. In the national law of the United States, these rules have been incorporated into the Uniform Code of Military Justice. The Geneva conventions obligate each party to prevent and suppress acts contrary to their provisions. They directly incorporate an element of criminal law when they identify and define "grave breaches" of their terms. The parties agree (1) to enact legislation under their domestic law to criminalize these grave breaches; (2) to search for those believed to have committed them; and (3) either to prosecute them or to extradite them to another party that will do so. The enforcement regime applicable to these grave breaches became the model for other treaties establishing international crimes such as the Convention Against Torture.

Persons protected under the Geneva Conventions include wounded, sick, and shipwrecked persons, medical and religious personnel, prisoners of war, and civilians. For the most part, its protections apply to these persons only when they are in the hands of a foreign power. Specific prohibited conduct constituting war crimes includes torture, inhuman treatment, the taking of hostages, the destruction of protected property, physical mutilation, the performing of medical experiments, and refusal to release protected yet detained civilians or military personnel after cessation of active hostilities.

Crimes against humanity. The concept of crimes against humanity was only recently developed, emerging in the early part of the twentieth century, well after the notion of war crimes was developed in the nineteenth century. The Charter of the Nuremberg Tribunal was the first multilateral legal instrument that expressly provided for the prosecution of crimes against humanity as an offense separate from war crimes. The legal concept of crimes against humanity was developed in large part to remedy the argument that international law did not apply to criminal acts directed by a government against its own civilian population, a matter that was traditionally seen as falling exclusively within the sovereignty of a state. The fundamental element in the definition of crimes against humanity is widespread or systematic atrocities committed against civilians, for example, enslavement.

States have often objected to extending international law so far into the domestic sphere of activity, and they have proposed, at various times, a number of additional conditions limiting the application of this concept. The 1945 Nuremberg Charter, for example, authorized prosecution for crimes against humanity only if the alleged crimes were committed in execution of or in connection with a crime against peace or a war crime. It is now generally recognized that crimes against humanity can be committed in time of war or in time of peace, and even if there is no armed conflict as such. Nonetheless, states are still reluctant to endow international institutions with the authority to investigate and or prosecute crimes other than those committed in connection with international armed conflict.

The United Nations has adopted (or at least considered) a number of variations on the definition of crimes against humanity. Among these are a General Assembly resolution endorsing the standards of the Nuremberg Charter, the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind, and the Statutes of the two ad hoc international criminal tribunals established by the United Nations in the 1990s. Negotiations leading to the 1998 adoption of the Statute of the International Criminal Court (ICC) produced consensus on a very narrowly defined core concept of crimes against humanity to be applied by that institution.

Torture. The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by, or with the consent or acquiescence of, a public official in order to achieve certain purposes. The most common purposes are to obtain information or a confession, punishment, intimidation, coercion, or discrimination/persecution. This definition of torture does not include pain or suffering arising only from, inherent in, or incidental to lawful penal sanctions.

The Torture Convention has achieved very broad acceptance by states. It establishes an enforcement regime similar to that of the 1949 Geneva Conventions, in which the parties agree to make torture punishable under their domestic law and also agree to take the steps necessary to prosecute those offenders within their jurisdiction.

The convention's definition of torture is extremely narrow. It excludes acts of torture committed by individuals in a personal capacity, except in cases where there is some government, or official, complicity. The concept of torture as an international crime is correspondingly constrained.

Drug offenses. The international community has adopted a number of treaties designed to control the illicit production, manufacture, trade, and use of drugs. The 1961 Single Convention on Narcotic Drugs, as amended by its 1972 Protocol, established the International Narcotics Control Board to regulate the production and sale of narcotics, cannabis, and coca leaves. The 1971 Convention on Psychotropic Substances extended this regime to chemical drugs. The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances defines internationally recognized drug trafficking offenses and requires the parties to criminalize them under their domestic law. The United States has signed all three of these conventions and incorporated their provisions into law.

Terrorism and threats to civil aviation. Terrorism is an extremely dangerous form of criminal activity that needs suppression at both national and international levels. Unfortunately states have found it impossible, thus far, to agree on a general definition of terrorism as an international crime. The 1999 International Convention for the Suppression of the Financing of Terrorism came closer than ever before to this goal when it defined the offense of providing or collecting funds to be used to carry out terrorist acts. The European Convention on the Suppression of Terrorism, a regional initiative, incorporates a functional definition of terrorism among its parties and creates a relatively strong regional enforcement regime.

There has been broad international acceptance of effective international criminal standards relating to at least two forms of terrorism. The principal treaties on threats to civilian aviation define aircraft hijacking and a number of related crimes and require the parties to suppress them under their national law. This system has become a cornerstone of international civil aviation. Similarly, the International Convention against the Taking of Hostages outlaws this form of terrorism.

Bribery of foreign public officials. The bribery of foreign public officials, first outlawed by the United States in the Foreign Corrupt Practices Act of 1977, is gaining recognition as a crime under international law. The 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions has been signed by thirty-four countries and entered into effect in February 1999. This treaty sets a general standard to be met by its parties in outlawing such bribes, but does not explicitly require states to impose sanctions on corporations as opposed to individuals. It has also been criticized for its failure to establish any uniform penalties for bribery, and for its failure to ban the tax deductibility of bribes paid to foreign officials. Another concern is that only a small number of states have ratified the treaty so far.

Other international crimes. Other crimes defined by international conventions include counterfeiting, the theft of cultural property or archeological treasures, the crime of apartheid, and the threat or use of force against internationally protected persons such as diplomats.