In This Article International Criminal Law

  • Introduction
  • Textbooks
  • Sources of International Criminal Law
  • Individual Criminal Responsibility
  • The Subjective Element (Mens Rea) of International Crimes
  • Defenses

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International Law International Criminal Law
by
Ilias Bantekas
  • LAST MODIFIED: 23 March 2012
  • DOI: 10.1093/obo/9780199796953-0001

Introduction

International criminal law (ICL) is a discipline that straddles public international law and criminal law. It is premised on the notion that, much like domestic criminal justice systems that enforce penal laws against transgressors, individuals should also be liable under international law in respect of international crimes. The notion of international criminality started to become part of mainstream international relations only at the end of World War II with the prosecution of Nazi officials. Before World War II the criminal liability of individuals was explained only in terms of criminal law and the narrow jurisdictional ambit of states. Since 1945, however, it is universally recognized that the basis of liability for the majority of international crimes, if not all, is international law. Up until the early 1990s (that is, during the Cold War) scholarly output on ICL was limited by the fact that very few prosecutions had taken place before national courts and the majority of these involved crimes committed in the course of World War II. On the whole, commentators had few resources and, by the late 1980s, the legal armory of ICL was still reliant on the case law of military tribunals associated with World War II, which were compiled by the UN War Crimes Commission. With the establishment by the UN Security Council in 1993 and 1994 of the first international criminal tribunals since Nuremberg, a plethora of jurisprudence came into existence and soon replaced the need to rely on its predecessor. This era witnessed the full-blown emergence of ICL as a discrete legal discipline and the need for textbooks arose.

Textbooks

It should be noted that by the 1970s the so-called father of ICL, Cherif Bassiouni, had undertaken a systematic examination of the discipline and had proceeded to expand its theoretical and practical boundaries. His most influential work is that material which has been assembled in an edited collection made up of three volumes: Bassiouni 2008. Bassiouni’s work was not emulated in the same breadth, mainly because post-2000 ICL textbooks are not edited collections. As a whole, these post-2000 ICL textbooks tend to focus on the law and practice of the ad hoc tribunals—the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)—as well as the International Criminal Court (ICC). This is true of Werle 2009 and Cryer, et al. 2010. The textbooks that view ICL more broadly than the jurisprudence of international criminal tribunals are Bassiouni 2003, Bantekas 2010, and Cassese 2008. An excellent reference source that works as an encyclopedia for ICL is Cassese 2009.

  • Bantekas, Ilias. International Criminal Law. 4th ed. Oxford: Hart, 2010.

    E-mail Citation »

    In addition to the ICC and ad hoc tribunals, Bantekas examines, among other topics, criminal law of the sea, transnational crimes, extradition, and mutual legal assistance. He believes that international criminal tribunals are merely a microcosm of ICL. Although they produce significant jurisprudence, nevertheless it is national institutions that deal with the bulk of the globe’s international and transnational criminal activity.

  • Bassiouni, Cherif M. Introduction to International Criminal Law. Ardsley, NY: Transnational Publishers, 2003.

    E-mail Citation »

    Largely based on the author’s previous articles and book chapters. Bassiouni offers a general theory of ICL from a multidisciplinary perspective (i.e., criminal and international law). He argues that because ICL has been shaped by the experiences of international criminal tribunals, it defies the congruence necessary to a coherent doctrinal framework that can satisfy the methods of the different legal disciplines composing it.

  • Bassiouni, Cherif M. International Criminal Law. 3d ed. Leiden, The Netherlands: Martinus Nijhoff, 2008.

    E-mail Citation »

    This is a systematic analysis of the three constituent parts of ICL, namely sources, subjects, and crimes (Volume 1); multilateral and bilateral enforcement mechanisms (Volume 2); and enforcement through international and domestic criminal tribunals (Volume 3). Many of its chapters possess a significant US undertone in the sense that they lay emphasis on the US legal position.

  • Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.

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    The author is not only a prolific scholar but also a former president of the International Criminal Tribunal for the former Yugoslavia (ICTY) and currently of the Lebanon Special Tribunal. The book is rightly regarded among the most authoritative in its field and its unique feature is the breadth of its research, including numerous cases from across the world, particularly from Italy, that go unreported.

  • Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009.

    E-mail Citation »

    This is a very useful encyclopedia of ICL. In its 1,200 pages the small article-size entries are written by both junior and senior ICL scholars, encompassing an A–Z listing of all ICL concepts and cases, as well as essays on the fundamental notions of ICL.

  • Cryer, Robert, Hakan Friman, Darryl Robinson, and Elizabeth Wilmhurst. An Introduction to International Criminal Law and Procedure. 2d ed. Cambridge, UK: Cambridge University Press, 2010.

    E-mail Citation »

    This is a book whose authors have been at pains to make it more widely readable. The breadth of its authorship has provided it with a broader purview of ICL than its aforementioned competing counterparts, but it too is largely dependent on the case law and practice of the ad hoc tribunals and the ICC.

  • Werle, Gerhard. Principles of International Criminal Law. 2d ed. The Hague: TMC Asser, 2009.

    DOI: 10.1007/978-90-6704-559-9E-mail Citation »

    This book also follows the general trend, with the author being considered one of the most authoritative criminal law scholars in the contemporary civil law tradition, the majority of whose work has been authored in German. The book places significant emphasis on doctrinal analysis and an abundance of references are provided in the footnotes section. It, too, is considered among the leading textbooks of its generation.

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