International Criminal Law

by

Claire de Than

• LAST REVIEWED: 24 July 2013
• LAST MODIFIED: 24 July 2013
• DOI: 10.1093/obo/9780199743292-0086

Introduction

In many respects, international criminal law mirrors the criminal law of any state. It has offenses, defenses, inchoate offenses such as attempt, accomplice liability, and an age of criminal responsibility; but each of these has been produced by either consensus or compromise between states with very different national criminal laws, so it is important not to assume that the rules and definitions are the same as those in any state. The essence of international criminal law is that some crimes are perceived as so serious that they must be viewed as a matter for the international community to redress. Good reasons can also be adduced why international law should apply with respect to the punishment of some crimes by states: pooled resources may be more efficient; the ability to investigate and take action may be greater when undertaken by the international community than by one country, particularly when atrocities have happened on a very large scale (e.g., Rwanda); and some states have reputations for not prosecuting their own citizens when they commit atrocities. Unfortunately, gray areas still exist in the definitions of “international crime” and “international criminal law.” Part of the problem is that almost all international crimes also qualify as serious human rights violations and many as violations of international humanitarian law; thus, three sets of well-meaning individuals and organizations are acting in the same field, each with a different agenda, background, and slightly different understandings of the same principles. Some international crimes are created by treaties or conventions agreed between states or international organizations, some by customary international law, and others by a combination of both. Treaty crimes are usually narrowly drafted and specific, created to deal with a sudden or particular problem, e.g., torture. Customary law crimes are, by their nature, less precise, deriving from the consistent practice of states over a long period of time. Since the Second World War, major developments in both the principles of international criminal law and the enforceability of such law have taken place. The creation of regional international criminal tribunals, such as those for the former Yugoslavia (ICTY) and for Rwanda (ICTR), followed by the landmark creation of the International Criminal Court (ICC) constitute key stages in the fight against impunity for those who commit the world’s worst crimes, and these legal institutions have led to new and more detailed legal principles. However, the number of cases dealt with by each of these courts is very small, and many defendants are prosecuted not in them but rather in national courts of states willing to try such individuals for their crimes. Problems remain with issues such as jurisdiction, particularly when the defendant is or has been a head of state.

General Overviews

Since the International Criminal Court (ICC) became a reality in 1998, general texts on the field have expanded greatly. They vary slightly in coverage: some are focused solely on the ICC and its statute and procedures (e.g., Schabas 2011); others look more broadly at treaty law and customary law sources (Bantekas 2010; Cassese 2008; Cryer, et al. 2010) and at a wider range of international crimes (de Than and Shorts 2003). The older works are not necessarily out-of-date since very few cases have been heard by the ICC, and some have been extremely influential in the development of international criminal law (Bassiouni 2008). Cassese 2011 combines cases and materials with a wide-ranging coverage of issues. Websites also exist for each of the international courts and tribunals, with live web streaming of cases and plenty of written documentation and guides; see the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court, all cited under Reference Resources.

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

  A very broad-ranging and detailed textbook that covers pollution, truth commissions, drug trafficking, evidence, and the theory of international criminal law as well as the more standard textbook contents.

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

  This three-volume collection with contributions from fifty-five scholars and broad coverage of crimes and issues is one of the classic works in the field, edited by probably the most influential author on international criminal law, and the latest edition provides the most up-to-date material.

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

  A concise and clear textbook that covers genocide, crimes against humanity, torture, terrorism, war crimes, and international criminal procedure. The focus is on international criminal tribunals, which is not surprising given that the author is the former president of the ICTY.

• Cassese, Antonio. International Criminal Law: Cases and Commentary. Oxford: Oxford University Press, 2011.

  A very helpful collection of cases and materials from a wide range of sources covering the core syllabus of most international criminal law modules.

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

  DOI: 10.1017/CBO9780511760808

  This popular student textbook covers prosecutions in national and international courts and deals with the main international crimes as well as the international criminal justice processes.

• de Than, Claire, and Edwin Shorts. International Criminal Law and Human Rights. London: Sweet and Maxwell, 2003.

  This book has a wider range than most, including the crimes of hijacking, torture, piracy, and slavery as well as the standard textbook contents. Chapters on key definitions and the criminalization of sexual violence are also included.

• Schabas, William. An Introduction to the International Criminal Court. 4th ed. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511975035

  As the title indicates, this text focuses on the history, workings, and jurisdiction of the ICC, although it does also look at decisions from earlier international criminal tribunals. The author is famous in the field.