The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer

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* Professor of Criminal Law at the University of Florence.

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Journal of International Criminal Justice 1, 1 � Oxford University Press, 2003.All rights reserved...........................................................................................

The General Principles ofInternational Criminal Law:The Viewpoint of a NationalCriminal Lawyer

Ferrando Mantovani*

AbstractSo far, the so-called ‘general part’ of international criminal law has been onlypartially codified. This paper discusses the need for, and the challenges of,establishing such a ‘general part’, especially regarding issues such as jurisdic-tion, the principle of legality, modalities of participation in the commission ofcrimes, various aspects of mens rea, justifications, excuses, and so on. Itoutlines areas where international criminal justice has made progress. Further-more, it pays particular attention to the dynamic between the international andnational criminal justice systems in attaining solutions to these questions.

1. The Need for a ‘General Part’ in International CriminalLaw

Like national penal law, in order to be coherent international criminal law mustnecessarily consist not only of a ‘special part’, comprising individual internationalcrimes, but also of a ‘general part’, embracing the set of fundamental principles andcommon rules valid for all international crimes or at least for specific categories ofinternational crimes.

Compared to the ‘special parts’, the ‘general parts’ of national penal law andinternational criminal law are the products of later processes of development, thoughfor different reasons. The ‘general part’ of national penal law is the result of theprogressive theoretical abstraction and conceptualization of the common character-istics of individual crimes, as well as the emergence of the fundamental political-



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rational principles on which the legal system is based (i.e. legality, retribution,culpability, imputability, etc.).

In international criminal law, the so-called indirect system of enforcement, wherebynational systems govern trial and punishment under their own rules of substantiveand procedural criminal law, did not require the development of a ‘general part’. Upuntil now, this indirect system has prevailed in international criminal law. Incontrast, a ‘general part’ of international criminal law was seen as necessary inrelation to the so-called direct system of enforcement of international criminal law,which has been activated less frequently than the above. The direct system ofenforcement comprises not only the establishment of an international adjudicatingbody, but also the exercise, at the international level, of all the activities associatedwith the prosecution of international crimes, such as investigations, trial proceedings,sentencing, sanctions, and enforcement. Finally, the mixed system of enforcement alsoencourages the development of a ‘general part’ in international criminal law. Thissystem, which envisages the establishment of an international adjudicating body,heavily relies on State cooperation for the arrest and surrender of accused persons, theexecution of other forms of assistance to the court, and the enforcement of sentences.The latter two systems have been put into practice at various times in the past. TheInternational Military Tribunals at Nuremberg and for the Far East are examples ofthe direct system of enforcement, while the International Criminal Tribunals for theformer Yugoslavia and for Rwanda are instances of the mixed system of enforcement.Despite the episodic nature of their existence, they have significantly heightenedawareness regarding the need for a ‘general part’ of international criminal law thatwould provide future international courts – be they temporary or permanent – withthe set of general principles on responsibility and punishment now upheld by the mostevolved criminal justice systems in the world.

2. The Genesis and Development of the ‘General Part’Given the above premises, one understands why international treaties and customaryrules have made such belated, desultory and scanty contributions to the developmentof a ‘general part’.

The origins of the ‘general part’ of international criminal law are typically tracedback to the Charters of the International Military Tribunals at Nuremberg (1945) andTokyo (1946). What was created there re-emerged in the Statutes of the InternationalCriminal Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR,respectively). However, for the purpose of defining the elements of criminalresponsibility and the circumstances excluding such responsibility, these last twoTribunals relied on the general principles laid down in the major criminal justicesystems of the world. The case law of these Tribunals has further contributed to thedevelopment of the ‘general part’. This contribution, however, is potentially in conflictwith the principle of legality. First of all, the Tribunals have identified or set out thegeneral principles after the commission of the crimes. Secondly, as the various



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national systems on which the Tribunals rely sometimes define these principlesdifferently, contradictions may arise.

Indeed, the perennial opposition between formal legality and substantive justice hasbeen a historical constant with respect to the punishment of international crimes.There are three possible solutions to this dichotomy.

(A) The Prevalence of Formal Legality

This approach, with its inherent guarantees of judicial certainty and equality, can beadequately assured through the remission of punishment for international crimes tosingle States under their respective systems of penal law. This is a way of ensuringrespect for the principles of the ‘general part’. Reverting to single States, however,comes at the possible expense of substantive justice because the punishment of crimesbecomes contingent on the willingness of States to fulfil, among other things, theirinternational obligation to punish international crimes. It also depends on theefficiency of the judicial systems of the various States and on their willingness andcapacity to cooperate. Such cooperation, however, given deficiencies in coordinationand coherence, happens to be one of the weakest points in the struggle against notonly international crime, but also transnational and domestic crime, especiallyorganised crime. The disastrous balance of international criminality since the SecondWorld War, and the high number of crimes that have gone unpunished, evinces therisk of this approach.

(B) The Prevalence of Substantive Justice

This solution has been chosen, to a greater or lesser degree, in all the cases whereinternational crimes were judged and punished by international tribunals, despite thelack of precise, previously codified provisions on the various aspects of criminalresponsibility under international law. There is almost universal recognition that inthe choice between substantive justice and rigorous respect for formal legality, thelatter may be slightly sacrificed in the name of the former. Indeed, under strict legality,perpetrators of ‘State delinquency’ could be rendered immune from prosecutionbecause their actions were formally legitimate in light of national legislation. Incontrast, the judgments of the Nuremberg and Tokyo Tribunals are viewed aslegitimate because they were based on the highest ‘principles of humanity’: principlesalready consecrated in national legal orders that in effect could only disallow the legalexcuses created at the national level by leaders or senior State officials to justify theirown criminal acts. Indeed, the 1950 European Convention on Human Rights (ECHR)and the 1966 UN Covenant on Civil and Political Rights (ICCPR) both reaffirmed thissolution, sharing the view that the principle of non-retroactivity does not precludeliability to punishment for acts that are criminal ‘according to the general principles oflaw recognized by civilized nations’. The case law of the Tribunals for the formerYugoslavia and Rwanda subsequently made a further step towards respect for theprinciple of legality. The sacrifice of formal legality, following the Tribunals’ approach,is minimal, if, as is often the case, the fundamental criteria taken from the various




national legal systems to determine criminal responsibility are for the most partsimilar, with only marginal differences. Furthermore, the Tribunals make every effortto identify the common denominators, and if insurmountable differences do emerge,the Tribunals tend to adopt the interpretation most favourable to the accused.

The Statute of the International Criminal Court (ICC) is more explicit on this matter.Pursuant to Article 21 the ICC is provided with its hierarchy of applicable law. Thatprovision indicates that the Court shall first apply the provisions of the Statute, andthen, when necessary, the ‘applicable treaties and the principles and rules ofinternational law’. Failing those, the Court then appeals to ‘the general principles oflaw derived by the Court from national laws of legal systems of the world including, asappropriate, the national laws of States that would normally exercise jurisdiction overthe crime, provided that those principles are not inconsistent with this Statute andwith international law and internationally recognized norms and standards’. TheStatute also stipulates that the Court ‘may apply principles and rules of law asinterpreted in its previous decisions’.

(C) The Reconciliation of Substantive Justice and Formal Legality

This solution would be attainable only through a comprehensive, written codificationof both the ‘special’ and ‘general parts’ of international criminal law. It appears to bethe best solution to the dialectic between substantive justice and formal legalitybecause it resolves two key issues concerning the legitimacy of international criminallaw. First of all, it takes care of the problem of how to comply with the principle oflegality, which has always been a serious problem in international criminal lawbecause general principles, customary rules, and treaty provisions rarely specify theexact elements of criminal conduct, and do not deal with the ‘general part’. Second, itresponds to the concerns expressed in contemporary scholarship that the principle oflegality must be upheld, even in international criminal law. This is especially relevantin cases where international law is applied by international criminal courts, because,as I have just pointed out, this body of law, lacking explicit definitions of the variouscrimes and provisions covering the ‘general part’, only minimally satisfies theprinciple of legality. The best way of remedying this unsatisfactory condition hasalways been seen in the elaboration of a treaty codifying international criminal law.However, despite the advantages of so doing, codification efforts have been quashedsince the end of the First World War. Distrust of international jurisdiction, the returnto the use of violence as a political weapon (the Korean war, the suppression of theHungarian revolution, the Suez crisis and so on), and the insuperable problem ofdefining ‘aggression’ have doomed the various attempts at codification to failure.

3. The Principle of Legality and the Statute of theInternational Criminal CourtA more recent and promising development in the codification of the ‘special’ and‘general’ parts of international law can be found in the Statute of the ICC (1998).



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Addressing the need for legality, and, in particular, for ‘specificity’, the Statute listsand defines, in more or less precise terms, international crimes. It defines genocide(Article 6); crimes against humanity (Article 7); and war crimes (Article 8).Furthermore, the Statute also specifies that crimes of aggression will eventually fallunder the jurisdiction of the Court once a provision for it has been adopted (Article5(2)).

The Statute of the ICC has not been without criticism. For example, there arepersistent gaps in its provisions on genocide that leave unprotected social and politicalgroups who do not fall under any particular ethnic, religious, or national grouping.There are also overlaps between its provisions on genocide, crimes against humanity,and war crimes. Despite these shortcomings, the Statute represents a clear stepforward in laying down a more rigorous definition of international crimes, andsubjecting them to the principle of specificity.

The Statute also proclaims other important principles of law. First of all, Article 22stipulates nullum crimen sine lege, and forbids the extension of the definition of crimesby analogy. Importantly, in Article 22(3) the Statute leaves unaffected thecharacterization of conduct not envisaged in the Statute, as criminal under other rulesof international law. In other words, the definitions contained in the Statute arebinding only for the purpose of applying the Statute. Article 23 declares nulla poenasine lege, that is, persons convicted by the Court may only be punished in accordancewith the Statute. Article 24 proclaims non-retroactivity, specifying that ‘No personshall be criminally responsible under this Statute for conduct prior to the entry intoforce of the Statute.’ Furthermore, in Article 24(2), the Statute provides for theretroactivity of the law more favourable to the accused whenever changes in therelevant law are enacted prior to a final judgment. Except for this last point, theotherwise absolute affirmation of the principle of non-retroactivity seems todifferentiate the Statute not only from the position taken by the Nuremberg and TokyoTribunals, whose judgments were also grounded on violations by the defendants ofthe highest ‘principles of humanity’, but also from Article 15 of the ICCPR and Article7 of the ECHR. Indeed, although the latter provisions do embrace the principle ofnon-retroactivity, they also consider it as non-binding for acts that, at the moment oftheir commission, were criminal ‘according to general principles of law recognized bycivilized nations’. These provisions, however, leave untouched the problem ofidentifying such criminal acts on the basis of such generic provisions.

The simultaneous application of the ICCPR, the ECHR, and the Statute itself maycreate rather delicate problems of coordination for the contracting parties in terms ofthe temporal applicability of national criminal law. This is, for instance, the case withthe Italian system. With regard to this system, one can say that the above-mentioneddepartures from the principle of non-retroactivity provided for by the ICCPR and theECHR concern domestic criminal law, while the principle of non-retroactivity asenshrined in the Statute concerns the jurisdiction of the ICC, which is complementaryto national jurisdictions (Article 1). Furthermore, the conflict that such departures ordeviations from established rules might create with the principle of non-retroactivitylaid down in Article 25(2) of the Italian Constitution, does not seem resolvable in the




sense of absolute predominance of formal legality, since those deviations onlyapparently violate the intent of the above-mentioned constitutional principle. Far frombeing overbearing or arbitrary, these exceptions constitute a reaffirmation of anessential and inviolable principle of substantive justice, by which even the principle ofnon-retroactivity should be measured, and of which it is itself an expression. TheItalian case, therefore, suggests that such exceptions to the principle of non-retroactivity cannot be regarded as unconstitutional because either they may be seenas an implicit limit to the principle found in Article 25(2) of the Italian Constitution,or, they may be regarded as part of the Italian legal system by virtue of Article 10(1),which automatically incorporates international customary rules into the Italian legalsystem (this, of course, on the assumption that the deviations provided for in theICCPR and the ECHR have turned into rules of customary international law).

Finally, the Statute codifies an extended series of principles and concepts relevant tothe ‘general part’, limiting itself to providing rules and regulations only for thoserequirements of criminal responsibility held to be of primary importance or else mostin need of clarification. Unfortunately, drawing upon rules from various nationalcriminal systems, which sometimes overlap or contradict, has somewhat detractedfrom the linearity and coherence of the Statute.

4. The Elements of International Crimes

(A) The Objective Element

The Statutes of the Nuremberg and Tokyo Tribunals, the Tribunals for the formerYugoslavia and Rwanda, and of the ICC have been nearly silent on the constitutiveelements of international crimes, at least in regard to their objective elements. For theseelements, such as causation, the above-mentioned Tribunals rely upon the generalprinciples of criminal law found in the major legal systems of the world.

Criminal legal theory distinguishes between four types of crimes. Internationalcrimes of commission are the most numerous in both national criminal law andinternational criminal law. International crimes of omission constitute an area that hasperceptively enlarged with heavier international obligations to act against criminalbehaviour. For example, as set out in Article 2(6) of the Draft Code of Offences againstthe Peace and Security of Mankind (1954), States are under an obligation to preventactivities within their own borders that are organized to commit terrorist acts inforeign countries. Simple international crimes are those constituted by a single action oromission by a single organ. Complex international crimes are the result of the criminalconduct of more than one organ whose activity leads to (or contributes to) theviolation of international law.

The ICC Statute excludes responsibility for crimes of omission, with a singleexception for military commanders or other superiors for failure to exercise adequatecontrol, or negligence in the adoption of measures necessary to prevent or repress thecommission of crimes by subordinates (Article 28). The Statute does not outline ageneral principle, that had been included in the Draft Statute, whereby ‘conduct . . .



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could constitute either an act or an omission, or a combination thereof’. It does,however, stipulate that responsibility for crimes of omission is admitted only if ‘theperson had the legal obligation to avert the event’. The rejection of a general principlewas due both to the known difficulties of achieving consensus on the circumstancesunder which mere omission should be punished, and to the controversy betweenthose who advocated an explicit rule obligating individuals to act, and those whoargued that such a rule would be inadequate for covering all of the cases of omissionthat merit punishment. The latter instead suggested that these crimes would be betterprosecuted, as already affirmed by the Nuremberg Tribunal and the Draft Code ofOffences against the Peace and Security of Mankind (1954), on the basis of‘responsibility for commission by way of omission’. According to this view, everyindividual is obligated to conform to the rules of international law, and can thus beheld responsible for having neglected to do so. Though the Statutes of the ICTY andICTR do not explicitly provide for responsibility for crimes of omission, they do appearto extend culpability to military commanders as a form of participation by omission,for not preventing the crimes of their subordinates.

(B) The Subjective Element

While the establishment of a simple causal nexus between an action and a criminalresult (and thus, mere objective responsibility) is sufficient for certain commentators,especially those who admit State responsibility, contemporary authors fall in line withthe position assumed by the Nuremberg Tribunal, considering the punishment ofinternational crimes to be inseparable from the principle of culpability. With regard tothe classic distinction between intent and negligence (i.e. fault, or culpa), which,generally speaking, in national criminal law are respectively the rule and theexception, it has been noted that international crimes instead must be punished,though with a lesser penalty, when they are a consequence of negligent behaviour(such as triggering a war of aggression by carelessness). As in national laws, it iswarranted to treat intent and recklessness in the same way. In contrast, the ICCStatute’s provision on the mental element (Article 30) appears to limit itself to intent(dolus) alone, thereby excluding negligence (culpa). Using ambiguous and psychologi-cally imprecise wording, it departs from the language of most European criminal codes(which I follow in this paper). It (i) does include intent and recklessness (doluseventualis), though (ii) it implicitly excludes liability in cases of mere negligence (culpa);(iii) it also implicitly excludes criminal liability for recklessness (dolus eventualis) whenindividual crimes require intent or, more precisely, premeditation (for example, crimessuch as extermination, ethnic rape, deportation, slavery, or deliberate attacks oncivilians); (iv) when individual crimes require specific intent (such as genocide), it alsoexcludes liability in cases where only mere general intent is shown; (v) negligence(culpa) is generally excluded from the ICC Statute, with some implicit exceptions, suchas in Article 28 concerning the criminal responsibility of a military commander for hisor her failure to exercise proper control over the forces under his or her command,




1 According to legal commentators (see for example F. Mantovani, Diritto penale – Parte generale, 4th edn(Padova: Cedam, 2001), 413–43, and the legal literature cited there, at 413–4), a ‘circumstantialoffence’ (reato circonstanziato) is an ordinary offence (for instance, murder) that law may consider moreor less serious on account of the existence of a special element or circumstance, which law explicitlyenvisages. This for instance happens when a person perpetrates murder ‘for vile or trivial motives’, orwhen an offence is committed by a civil servant abusing his official powers, or when the victim’s willfuland malicious conduct contributes to the crime. These ‘circumstances’ are accessory elements of the‘ordinary’ offence (murder, sexual assault, theft, etc.); law may take them into account as eitheraggravating or extenuating circumstances.

when that commander ‘should have known that the forces were committing or aboutto commit such crimes’ within the jurisdiction of the court.

On the rules concerning ‘mistake of fact or mistake of law’ (Article 32), the Statutelimits excuse from criminal responsibility on those grounds. As for mistake of fact, itexcludes responsibility only when mistake of fact negates the mental element requiredfor the crime, that is, when the accused, as a result of such an ‘essential’ error, wills afact different from that defined as criminal. A mistake of law can be used as grounds forexcluding criminal responsibility if it negates the mental element – that is, the intent –required for a crime. Therefore, it cannot be used as a grounds for excludingresponsibility when it is limited to a mistake about the unlawfulness of the conduct; itis instead a grounds for excluding liability when it negates the mens rea element, thatis, intent, and thus ultimately amounts to a mistake of fact. This seems to imply thatonly crimes where mistake results from intent can be punished, while crimes based onnegligent mistake remain unpunished.

6. The Modalities of International CrimesThe Statute of the ICC does not provide for the circumstances of the crime to be takeninto account for the purpose of defining the crimes, that is, there is no provision forso-called circumstantial crimes.1 Instead it provides for criminal attempt andparticipation of persons in the criminal activity, with the intention of clarifyingdefinitions and filling in some of the existing gaps in the Statutes of the previousTribunals and the Draft Codes of Crimes. For example, before the ICC Statute, attempt,as a general category, was not provided for (except for some specific categories ofcrimes, such as genocide), and attempted crimes thus generally remainedunpunished.

As a means to prevent crimes, the Statute of the ICC stipulates that attempts tocommit crimes are, as a general category, punishable (Article 25(3)(f)). This puts anend to the controversy about whether some or all attempted international crimesinvolve criminal liability. The Statute defines a criminal attempt according to theclassic criteria of the ‘commencement of execution’ of the criminal act, with thefurther qualification that a ‘substantial step’ be actually carried out. Consequently,the problem of defining ‘substantial step’ is added to that of drawing the line betweenpreparatory acts and the initial moment of the crime. In order to avoid the excuses



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following from the theory whereby the initial moment of the act coincides with thecrime (for example, in the case of a person who buys the weapons intended to be usedfor genocide), and the ensuing rigid choice between responsibility or impunity, theStatute seems to embrace a teleological notion of criminal attempt. Under this notionattempt would cover all acts concretely threatening the interests protected by acriminal rule. Such acts can include those which are not by definition part of criminalconduct, such as preparatory acts (for example, taking a truck to a location wherethere are persons awaiting deportation). One could infer from Article 30 (the generalrule on mens rea) of the Statute, that the mental element for attempt comprises notonly intent (dolus), but also recklessness (dolus eventualis). Indeed, nothing to thecontrary is provided for in Article 25(f). Furthermore, the Statute does not provide forspecific penalties to punish attempted crimes. Instead, the penalties for criminalattempts are identical to those for consummated crimes, though, as provided for inArticle 78, the court may impose a lighter penalty. What is surprising is that thissolution seems more in line with a subjective conception of attempt, mirroring a systembased on criminalization of the will, rather than the objective conception of the offence,which the Statute embraces where it defines attempt by a non-subjective formulareferring to ‘action that commences the execution [of the crime]’ instead of by thesubjective conception of attempt as comprising acts ‘aiming’ at the perpetration of acrime. The Statute also provides for exclusion of criminal responsibility if the subjectabandons the effort to commit the crime or otherwise prevents the completion of thecrime (Article 25(3)(f)) – an element considered neither by the Statutes of the ICTYand the ICTR, nor by the Drafts Codes of 1954, 1991, and 1996. Finally, suchimpunity is subordinated not only to the fact that the subject abandons the criminalaction voluntarily, as is typical of national criminal laws, but also completely. Thislatter condition, which is unclear, seems to require that the abandonment of the effortto commit a crime shall not be temporary nor limited to the specific crime, but finaland comprehensive (which would not be the case, for example, if someone abandonedthe acts of commission of genocide against one group, but pursued them againstanother).

The Statute of the ICC does not, however, provide for the so-called ‘impossiblecrime’, that is, when the action cannot produce the crime or the object of the crimedoes not exist. The impossible crime can be punished only on the basis of a subjectivetheory of criminality; not under the objective conception, which is the acceptedconception in the Statute, according to which the impossible crime is not a crimebecause there is no legal offence, not even in the form of a threat to the protectedinterests.

The ICC Statute regulates the participation of people in both consummated andinchoate international crimes (Article 25(3)), which was also considered in theStatutes of the ICTY and ICTR. In this respect, the ICC Statute rejects the complicatednotion of differentiated liability with regard to predetermined categories of participants(perpetrators, accomplices, etc.). Criticisms of this notion are well known, inparticular those related to its inability to pinpoint the real degree of culpability ofindividual participants in criminal conduct, on the basis of abstract and a priori




categories of all forms of criminal participation (for example, the perpetrator of a crimemay be less culpable than his or her superior). The Statute adopts the simpler principleof the equal culpability of participants, which was the principle already followed in theStatutes of the Nuremberg and Tokyo Tribunals, and the Statutes of the ICTY andICTR. According to this principle, the participant is liable provided that he or she hascontributed to, or assisted in the commission of the crime. The ICC Statuteappropriately entrusts the judge with the task of evaluating the real degree ofculpability of each participant, in each case. Nevertheless, the Statute is not free fromthe influence of the notion of differentiated liability and of its need for a categorization ofcriminal conduct. Hence, rather than simply limiting its definition of participation tocontributing to the commission of a crime (either by causing or facilitating the crime),the Statute, rather incoherently, contains a specific enumeration of the various formsof participation, including co-perpetrating, ordering, soliciting, inducing, facilitating,aiding and abetting, and so on. Moreover, the Statute provides for a final clause(Article 25(3)(d)) which considers punishable any other contribution to thecommission or attempted commission of a crime. This provision can be consideredsuperfluous because it is difficult to imagine other hypotheses that would not fallunder the broad categories mentioned in the enumeration referred to above. It canalso be considered unnecessary and inconsistent because it frustrates the effort tocompile an exhaustive list, and eventually renders the aforementioned enumerationmerely illustrative.

Like the Convention on Genocide (1948) and the Statutes of the ICTY and ICTR, theICC Statute seeks to reinforce the prevention of genocide by providing for thepunishment of direct and public incitement to commit genocide, even if genocide isnot actually committed, nor even attempted.

7. Grounds for Excluding Criminal ResponsibilityThe first problem regarding defences is whether grounds for excluding criminalresponsibility are already upheld in international criminal law, either as generalprinciples of law derived from national legal systems, or because they are implied inthe definition of criminal offences. For example, all personal rights and rights in remimply the legal power of self-defence, because no legal order could both recognizethose rights and yet restrict the reactions of their owners aimed at protecting thoserights when other parties attempt to violate them. To clarify this issue, the Statute ofthe Court has provided for three defences for exclusion of responsibility that are ofexplicit interest to international law. Other excuses, such as consent, are ruled outbecause the norms proscribing international crimes by definition would make themirrelevant. Indeed, these norms are intended to prohibit so-called macro-criminality;furthermore, the legal assets and interests protected by such norms may not be waivedor otherwise freely disposed of. The three defences provided for in the Statute are asfollows.

(1) Self-defence, including the defence of another person (Article 31(1) (c)), and (2)



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2 See on this issue P. Gaeta, ‘The Defence of Superior Orders: The Statute of the International CriminalCourt versus Customary International Law’ 10 European Journal of International Law (1999), at172–191.

necessity or duress, when the conduct has been carried out under threat of death orserious bodily harm to that person or another person (Article 31(1)(d)). Thesedefences have been taken from national criminal law, but there are considerable limitsto their application. In the case of genocide and crimes against humanity, for example,self-defence (including the defence of others), would not justify the crime because ofthe lack of proportionality or imbalance between the interests protected; neitherwould duress or necessity, because there may not be an unprovoked threat to life andlimb from others, or from objective circumstances, warranting genocide or crimesagainst humanity. These justifications are thus peripheral and mostly limited to warcrimes if they are invoked as a defensive reaction against unjust attacks (however,even ascertaining unjust and imminent attack is difficult). (3) Superior orders of aGovernment, or of a military or civilian superior authority. It is common knowledgethat superior orders may be grounds for excluding criminal responsibility, unless theorders were manifestly illegal, and at the opposite extreme, that superior orders maynever be used as grounds for excluding responsibility, given the gravity ofinternational crimes, although they may be taken into account as mitigating factors(this approach was taken in the Statutes of the Nuremberg and Tokyo Tribunals, andthe ICTY and ICTR). The ICC Statute proclaims (in Article 33(1)) the doctrinewhereby superior orders shall not relieve a person of criminal responsibility; it does noteven consider superior orders as possible extenuating circumstances. At the sametime, and somewhat inconsistently, the Statute, in Article 33(1) sets out someexceptions, making superior orders an accepted defence (when the person wasduty-bound to obey, did not know that the order was unlawful and the order was notmanifestly unlawful).2 The Statute then lays down (in Article 33(2)) the legalpresumption that orders to commit genocide or crimes against humanity are alwaysmanifestly unlawful.

8. PenaltiesThe issue of respect for the principle nulla poena sine lege has two dimensions. On theone hand, this principle is thoroughly respected in the above-mentioned ‘indirectsystem of enforcement’ whereby sentences are made by States. Under this system eachState decides, under its own legislation or case law, on the penalty attached to eachclass of crimes. This is confirmed in the provisions of many conventions oninternational crimes which simply refer to national legislation insofar as penalties areconcerned. On the other hand, in the ‘direct system of enforcement’ of internationalcriminal law, also discussed above, and hinging on the establishment of internationalcriminal courts and tribunals, the nulla poena principle is at risk. The internationalcommunity still has not been able to find a satisfactory solution to this dilemma.




While the Nuremberg and Tokyo Charters merely provided that the Tribunals couldimpose the death penalty and any other sanction they deemed appropriate, theStatutes of the ICTY and ICTR made an attempt to deal more effectively with the nullapoena principle. Although the Statutes did not attach specific penalties to each crime,they provided for a general and uniform mechanism that the judges should use intheir sentencing decisions: the drafters envisaged a reference to the general practice ofnational courts concerning prison sentences for international crimes; moreover, thedeath penalty was explicitly ruled out. This solution, however, is still unsatisfactorybecause international Tribunals are called upon to refer to national legal systems thatdo not necessarily contain provisions dealing with international crimes.

The adoption of the ICC Statute brought further developments with respect to thenulla poena principle. The Statute does not attach specific penalties to each crime(sentencing tariffs have been rejected); nevertheless, a much more developed systemof sanctions has been envisaged. First, life imprisonment may be imposed whenjustified by the extreme gravity of the crime and the personal circumstances of theaccused. Second, the judges may impose prison terms, but of no more than thirtyyears. Third, judges may also impose fines. Fourth, the Court may impose theforfeiture of ‘proceeds, property and assets derived directly or indirectly from thecrime’ (Article 77(2)(b)). Fifth, the Statute provides the criteria which judges shoulduse in their determination of the penalty, namely the ‘gravity of the crime’ and the‘individual circumstances of the convicted person’ (Article 78). Sixth, the Court maydeduct any time previously spent in detention for the same crime. Seventh, if a personis convicted of more than one crime, the Court shall pronounce a sentence for eachcrime, and a joint sentence specifying the total period of imprisonment which shall notbe less than the highest individual sentence, nor exceed the maximum term ofimprisonment (thirty years), unless the sentence is life imprisonment (Article 78).Finally, the Statute entrusts the Court with the power to decide on any reduction ofsentence after a part of the sentence has been served, and provided that certainrequirements are met (Article 110).

9. The Penetration of International Criminal Law intoNational Criminal Law, and vice versaA twofold relationship between international and national criminal law isincreasingly emerging. On the one hand, international criminal law is being‘nationalized’ through the integration into international law of the general principlesof criminal law common to the major legal systems of the world, especially in terms ofthe ‘general part’ of international criminal law. On the other hand, a sort of‘internationalization’ of national criminal law is emerging as both customary andconventional international law are being integrated into national legal systems. Thisaspect does not include the ‘general part’ of criminal law, because normallyinternational criminal law treaties and customs do not deal with such ‘general part’,in that they simply refer to national law as far as the regulation of that ‘part’ is



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concerned. Indeed, international provisions usually leave the regulation of all aspectslinked to the general part of criminal law to the ordinary regulation of each nationallegal system. Instead, the penetration of international law into national legal systemsis more evident insofar as some aspects of the ‘special part’ are concerned, namelywith regard to the provisions on the definition of international crimes. Thusinternational law has introduced the crimes of genocide, war crimes, crimes againsthumanity, international terrorism, slavery, etc. into national legal systems.

The Statute of the ICC poses particular problems in terms of the penetration ofinternational law into national legal systems. First, one should note that thejurisdiction of the Court is complementary to national courts, in that it was exercisedin cases where national courts are unwilling or unable to play their role. Second,national courts have priority in exercising jurisdiction insofar as their own nationallaws provide for the crimes listed in the Statute. National laws must also provide forthe crimes under the ICC Statute, as well as the penalties attached to them, so that theprinciples of nullum crimen and nulla poena sine lege are upheld. The adoption innational legal systems of specific provisions on international crimes is thus a specificobligation incumbent upon the States Parties, an obligation that comes even beforetheir general obligation to cooperate with the Court.

Documents

The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer