International law

SIGNIFICANCE: International criminal law punishes major crimes against persons by coordinating national legislative and enforcement activities at the international level.

International customary law has long recognized that dangerous and despicable criminal acts can be committed by individuals in ways that threaten other people as well as the interests and order of governments and of the international community. Under international law, individuals are primarily situated within the domestic and territorial jurisdiction of a particular country, and every country has the right to establish systems of criminal as well as civil law. In this sense, individuals are directly and firstly subject to the criminal laws of the countries in which they live or that they travel through, and they can be arrested, tried, and punished under national criminal statutes. Governments are free to punish violators of their domestic criminal statutes as well as those who have violated crimes of an international nature. Indeed, governments have long recognized that certain kinds of harmful activities transcend domestic enforcement, requiring international regulation and cooperation so that law and order is kept not only within but also among nations.

In modern times, the number and scope of criminal acts by individuals that threaten the interests of governments and the international community have increased. Piracy at sea is a historical example of an international crime. More recently, enslavement and the international slave trade came to be regarded as international criminal acts requiring international attention. Modern international criminal law embraces many other acts that threaten international stability and justice, including skyjacking, hostage taking, war crimes, crimes against humanity, genocide, and terrorism, among others.

Early Developments

As mentioned, a classic example of an international criminal act is piracy at sea. For many centuries, customary international law treated piracy as a threat to the safety of maritime trade. Those who engaged in plunder and pillage at sea were seen as criminals, and their unregistered vessels were regarded as pirate ships. Persons engaging in piratical acts made themselves international outlaws by violating the rules of civilized nations, which included an obligation to refrain during time of peace from detaining, pillaging, or destroying the ships, crew, passengers, and cargo of vessels engaged in peaceable commerce. Pirates were seen by governments as criminals who were hostes humani generis, that is, “the enemies of all humankind.” Any government could apprehend, try, and punish pirates under a principle of universal jurisdiction. The pirate did not need to be a citizen or subject of the state taking punitive action. Pirates were considered international criminals, and all persons had a duty to refrain from piratical acts. This demonstrates the earliest development of what is now called an international crime; governments perceived an interest in regulating a common threat to their peaceable interaction that required the development of common norms and procedures for punishing and deterring the criminal behavior.

During the nineteenth century, enslavement and the slave trade were gradually added to the list of international criminal activities, as governments began to take steps both in their domestic legislation and enforcement as well as in their international relations. A nation could outlaw slavery within its own territory, but interdiction and prohibition of the slave trade required international cooperation. Great Britain took the lead in this endeavor in the 1830s by outlawing enslavement in its domains. It followed up by using British naval power to interdict slave trade and by pressuring other nations to join it in the endeavor. Momentum to classify slave trading as criminal gathered steam during the late nineteenth century, leading up to the promulgation of the 1919 Convention of St. Germain, which was the first international treaty to outlaw the slave trade on land and sea. Numerous subsequent treaties built on the St. Germain Treaty, and the slave trade entered the class of international criminal acts.

War Crimes

Governments have long acknowledged limits on the behavior of armed forces during war, breaches of which could be punished by a soldier’s national state or by any other state that might gain custody over military personnel suspected of egregious violations of customary norms of war, such as the willful massacre of civilian populations; the murder of unarmed, wounded, or sick soldiers; or the killing of prisoners of war. However, prosecutions for such war crimes were infrequent in the practice of nations, and thus such crimes often went unpunished.

In 1899 and 1907, world governments met to negotiate the Hague Conventions as an attempt to codify the international customary norms of war. These treaties failed to win enough ratification to enter into force, but they did largely enter into the actual practice of nations and thus did express the prevailing customs of war acknowledged by governments. Various Geneva Red Cross Conventions dating from 1864, 1929, and 1949 clarified state obligations toward prisoners of war and toward sick and wounded soldiers as well as civilian populations, thus contributing to the further development of international humanitarian law.

After World War II and the egregious crimes of Germany’s Nazi regime, the Nuremberg Trials constituted a visible international attempt to punish war criminals. The tribunal introduced two new international crimes, namely crimes against peace and crimes against humanity. Soldiers could no longer claim immunity from punishment for violating the laws of war by invoking the defense of superior orders. Similarly, high-ranking military officers and government officials implicated in crimes against humanity could no longer claim sovereign immunity. Although the Nuremberg tribunal sparked controversy as a form of “victor’s justice” and complaints of unfair ex post facto application of punishment for actions not previously considered criminal, the principles invoked at Nuremberg have entered into state practice.

The movement to make crimes against peace a whole new classification of crime was criticized, given the fact that war and planning for war were routine aspects of state practice prior to World War II. However, very few German officials were convicted of crimes against peace alone; most of those sentenced to long prison sentences or to execution were guilty of more flagrant war crimes violations or of crimes against humanity. Definition of the so-called crime of aggression continues to elude full international consensus.

The new class of criminal acts, referred to as crimes against humanity, was introduced at Nuremberg to address the unprecedented and shocking acts perpetrated under the Nazi regime, which exterminated six million Jews and an equal number of non-Jewish people in Germany and various countries under German occupation during the Holocaust. The discovery of a vast network of extermination and concentration camps shocked the international community. Thus, while no international law existed prior to World War II forbidding such acts of mass murder and genocide , their very outrageous character cried out for justice.

Among civilized nations and peoples, it should not be necessary to prohibit unthinkable crimes. The historical experience of the twentieth century suggests that it was necessary to do so and that even the articulation of crimes against humanity would not be sufficient to deter subsequent grave violations against human dignity on a vast scale, as genocides in Cambodia, Rwanda, and Sudan would continue to demonstrate. In the wake of World War II the United Nations (U.N.) began the process of drafting human rights declarations and treaties to protect individuals from persecution and to declare as criminal various acts such as genocide, torture, and, eventually, after long and controversial debate, terrorism.

Genocide

The shock of the Nazi-perpetrated Holocaust led to the perceived need for specific action against mass murder and the extermination of peoples. War crimes could be punished by governments through their own administrative machinery or by special tribunals, such as those set up following World War II at Nuremberg and in the Far East. A government’s crimes against its own people or against occupied civilian populations required wider legal action and political willingness to act.

In 1948, the United Nations promulgated the Genocide Convention to prohibit any government or person from the planning or the carrying out of plans to destroy a people. This treaty protects ethnic, racial, religious, and national groups from destruction. It forbids not only their killing in whole or part but also other measures meant to eliminate groups of people through policies of abortion, sterilization, seizure of children, separation of families, forced deportation, and depopulation. Persons guilty of planning or executing such policies may be tried by a court in the state where the act was committed or by international bodies recognized by treaty members. An example of such an international tribunal includes the established International Criminal Court (ICC), which may take legal action against persons, including heads of state, accused of genocide.

The existence of modern law and tribunals has not prevented war crimes, genocide, and other inhumane criminal activity. Genocidal activities in the Korean War as well as the slaughter of Ugandans under Idi Amin, of Cambodians under Pol Pot, and of Christians in the Arab-dominated country of the Sudan all took place without full justice for the perpetrators. Saddam Hussein’s extermination of Shiite Muslims and Kurds in Iraq and the “ethnic cleansing” policies so widely practiced in Bosnia and Herzegovina and Kosovo, along with the genocidal policies pursued by extremist Hutus against Tutsis in Rwanda, illustrated the need for more determined international action to prevent and punish genocide. In these latter cases, national and international tribunals were established to bring perpetrators of such crimes to justice.

New Tribunals

The many modern examples of state-sponsored genocide pushed the international community to take steps in the 1990s to strengthen international procedures and mechanisms to punish international crimes of genocide. The U.N. Security Council established an International Criminal Tribunal for Yugoslavia in 1993 and an International Criminal Tribunal for Rwanda in 1994. The government of Rwanda has taken steps through its own court systems to punish offenders as well.

During the 1990s, international efforts to replace such ad hoc tribunals with a more permanent and global criminal court led to the negotiation and establishment of the ICC. Under the statute of this court, international criminal acts include not only traditional war crimes but also torture, terrorism, and the undefined crime of aggression. The ICC prosecutor has the authority to indict any individual whose country of nationality or jurisdiction has been unable or unwilling to take legal action against a suspected war criminal.

By establishing a universal jurisdiction, the ICC should, theoretically, deter international criminal activity. During the 1990s and the early twenty-first century, the United States signed but decided not to be a state party to the statute. indicated that it would not ratify the ICC. Its objections to the treaty included the refusal by member states to include provisions to account for American constitutional practice as well as concerns about American military personnel, especially those serving in international peacekeeping missions, being subjected to hostile and frivolous charges and actions under the ICC statute. Differences in American and European legal philosophies became apparent during the drafting stage and deepened during the implementation of the statute. The ICC has opened ten cases , most of which have been against African countries.

Other International Criminal Acts

Various treaties have been promulgated that have established a variety of additional international criminal laws, apart from those addressing war crimes and genocide. The old concern about piracy at sea gave way during the 1960s and 1970s to concern about air piracy and skyjacking. Treaties declaring such actions criminal have variously given jurisdiction for punishment of such crimes to countries of nationality, countries of landing, or countries of registry. As with genocide, persons guilty of skyjacking may also be extradited for trial and punishment to any state making a legitimate extradition request under bilateral or multilateral treaties.

Another crime that has been increasingly prohibited under both regional and international treaties is that of torture. The difficulty in gaining full international consensus on this issue centered on the definition of torture, which may include less objectionable acts of high-pressure interrogation, such as sleep deprivation, as well as clearly inimical practices of inflicting bodily pain or mutilation. Exactly where legitimate interrogation ends and torture begins is a debated question. Still, clear examples of torture are widely reviled, and few governments are willing openly to justify them, although many governments continue to practice the clearly more objectionable forms of torture, despite all international efforts to eliminate such practices. The United Nations Convention against Torture has been in effect since 1987.

Terrorism

Of special interest in the twenty-first century is the need to prevent and punish acts of terrorism, which, by definition, represent arbitrary crimes of violence, including hostage taking, murder, and bombings aimed at killing and intimidating innocent civilian populations. Under the traditional laws of war, terrorists are regarded as war criminals, and several international treaties of recent origin attempt to encourage the prevention of terrorist bombings and the apprehension, extradition, and punishment of those guilty of terrorist acts. From the early 1970s into the mid-1990s, the United Nations had a difficult time even defining terrorism, owing to the political claims of national liberation movements that employed terrorist tactics. In 1997, the United Nations finally settled on a definition of terrorism that specifically forbade arbitrary acts of criminal violence aimed at instilling terror among innocent civilian populations for any political purposes. With the increase of terrorist acts in rich and poor countries alike, international tolerance of terrorism declined, and steps to uncover terrorist organizations and to punish those guilty of terrorist acts intensified, especially in the wake of the terrorist attacks of September 11, 2001.

Exercising Jurisdiction

Any country may, on its own authority and initiative, take action to apprehend, indict, detain, try, convict, and punish individuals guilty of international crimes. Most guilty individuals are likely to face the domestic criminal justice systems of countries whose law, safety, security, and good order have been disturbed by the international criminal activity. International action also is possible and raises the prospect of concurrent jurisdiction, whereby more than one country and more than one court at the national, regional, or global level may exercise the right to jurisdiction.

This national and international action will address not only the more visible and well-known crimes of genocide, war crimes, torture, terrorism, and skyjacking but also other international criminal activity such as trafficking in women and children, counterfeiting, money laundering, unlawful experimentation on human beings, destruction and theft of national treasures and antiquities, international prostitution, drug trafficking, and trafficking in child pornography. An increasing array of such activities are perpetrated not only within but also between and among countries.

Thus, although domestic action against such crimes can be expected to continue, countries increasingly enter into bilateral and multilateral cooperative agreements to regulate, eliminate, and punish such crimes. Domestic action against such crimes often requires extradition agreements to ensure either that criminals fleeing from punishment in one country are returned to it for trial or that accused persons face trial in the country to which they have escaped.

As the ad hoc criminal tribunals for Yugoslavia and Rwanda illustrate, further steps at the regional and global levels can be taken to spread a wider net of cooperation to ensure that justice is meted out to international criminals. Finally, the ICC represents the most global endeavor to prevent and punish various international crimes. Ultimately, however, the success of all such efforts depends upon the will and ability of governments to follow through on the punishment of those persons guilty of crimes against human dignity and decency. Treaties are rarely self-enforcing. Rather, governments, in countless decisions and actions, determine day by day whether such criminals are brought before the bar of justice.

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