Criteria and classifications of international crimes by scholars

As stated by Bassiouni, there is a great deal of confusion as to what constitutes an international crime and as to the criteria justifying the establishment of crimes under international law.³⁴³ In particular, it is important to note that many crimes are recognized as “international” because they are criminalized in an international treaty.³⁴⁴ However, some “treaty-based crimes” including counterfeiting or the bribery of foreign officials, generally do not threaten human life and dignity, and do not affect fundamental human values.³⁴⁵ These crimes are the object of treaties because they require international cooperation in order to ensure their suppression.³⁴⁶ For instance, the commission of certain crimes can be dispersed over the territory of several states, injuring an interest common to many states, thus obliging states to address them collectively.³⁴⁷ For example, this could also be the case for the crime of piracy: this crime poses jurisdictional problems because it is committed on the high seas and therefore escapes the territory of each state.³⁴⁸

343 C. Bassiouni, ‘International Crimes: The Ratione Materiae of International Criminal Law’, in Bassiouni (ed.), International Criminal Law, vol. 1, Sources, Subjects and Contents (3rd ed., Martinus Nijhoff Publishers, 2008), at 133.

344 W. Schabas, ‘International Crimes’,inArmstrong (ed.), Routledge Handbook of International Law (Abingdon (U.K.), New York: Routledge, 2009) 268-280, at 268-269.

345 Ibid., at 269.

346 Ibid.

347 According to Donnedieu de Vabres, “le fait d’une solidarité interétatique est apparu. Si la protection de leur sûreté ou de leur crédit respectif met les Etats en opposition les uns vis-à-vis des autres, la commission de certains délits spectaculaires dont les éléments sont ordinairement dispersés sur le territorire de plusieurs d’entre eux les oblige à dresser contre ces infractions un front commun” (H.

Donnedieu de Vabres, ‘De la piraterie au génocide... les nouvelles modalités de la répression universelle’, in Mélanges Georges Ripert (Paris : LGDJ, 1950) 226-254, at 228.

348 Schabas, supra note 344,at 269.

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A brief overview of recent legal writings of scholars leads to the conclusion that there is no agreed set of criteria for the identification of international crimes, let alone for the identification of crimes subject to universal jurisdiction. The only general agreement seems to be on the existence of “core crimes”, namely war crimes, crimes against humanity and genocide,³⁴⁹ although some debate exists about the inclusion of the crime of aggression. While some authors include it in the list of “core crimes”,³⁵⁰ other scholars do not.³⁵¹ The rationale underpinning the distinction between “core crimes” and other international crimes is the fact that the former are directly punishable under international law, while in respect to the latter, there is no direct liability of individuals under international law.³⁵² For the rest, various classifications based on different criteria are proposed in legal scholarship.

Schabas, for instance, advances a distinction between international crimes which are mala prohibita (prohibited by law) – typically transnational crimes – and other crimes (also referred to as “new crimes”), which are mal in se (inherently evil), in that they affect “profoundly important values that are deeply rooted in all human societies”.³⁵³ These “new crimes”, which generally concern “crimes of states”, include those that emerged with the Charter of the International Military Tribunal, the Genocide Convention and the Geneva Conventions.³⁵⁴ They include genocide, crimes against humanity and war crimes. However, as Schabas rightly points out, when crimes such as terrorism and trafficking are considered, the distinction between crimes that are mala prohibita and those that are mala in se is not an easy one to make.³⁵⁵

In a comprehensive study on international crimes, Bassiouni proposes five criteria for the qualification of conduct as an international crime: (1) the prohibited conduct affects a significant international interest; (2) it is deemed offensive to the commonly shared values of the world community; (3) it has transnational implications; (4) it is harmful to an internationally-protected

349 See Bassiouni, supra note 343, at 133.

350 See for instance G. Werle, Principles of International Criminal Law (2nd ed., The Hague: TMC Asser Press, 2009), at 29; Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010), at 4; Currie and Rikhof, International & Transnational Criminal Law (2^nd ed., Irwin Law: Toronto, 2013), at 19; T. Einarsen, The Concept of Universal Crimes in International Law (Oslo: Torkel Opsahl Academic Publisher, 2012), at 278.

351 See for instance, Bassiouni, Introduction to International Criminal Law (Leiden/Boston: Martinus Nijhoff Publishers, 2013), at 143.

352 See Werle, Principles of International Criminal Law (2nd ed., The Hague: TMC Asser Press, 2009), at 42, and Currie and Rikhof, International & Transnational Criminal Law (2^nd ed., Irwin Law: Toronto, 2013), at 20.

353 Schabas, supra note 344,at 268.

354 Ibid., at 269.

355 Ibid.

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person or interest and (5) it “violates an internationally protected interest but it does not give rise to the level required by (1) or (2), however, because of its nature, it can best be prevented and suppressed by international criminalization”.³⁵⁶ He identifies 28 different international crimes³⁵⁷ and proposes the following three general categories, based on the protected interest embodied in each crime: (1) protection of international peace and security; (2) protection of human interests and (3) protection of social and cultural interests.³⁵⁸ Category (1) includes aggression and mercernarism. Category (2) is divided into two subcategories: (a) protection of human interests not associated with other internationally protected interests and (b) protection of human interests associated with other internationally protected interests. Category (2)(a) includes genocide, crimes against humanity and war crimes, as well as nuclear terrorism, theft of nuclear materials, apartheid, slavery, torture and unlawful human experimentation. Category (2)(b) includes crimes such as piracy, aircraft hijacking, crimes against United Nations and associated personnel, and terrorist acts provided in a number of conventions. Category (3) includes crimes such as drug trafficking, organized crime and counterfeiting.³⁵⁹

There also appears to be some confusion surrounding the term

“international crimes” itself. While Currie and Rikhof consider that the term

“international crimes” covers the first two above-mentioned categories of crimes, other scholars use the term “international crimes” essentially for “core crimes”. Cryer et al., for instance, adopt a jurisdictional approach and define international crimes as “those offences over which international courts or tribunals have been given jurisdiction under general international law”.³⁶⁰ International crimes thus include crimes of genocide, crimes against humanity, war crimes and the crime of aggression. They do not include other crimes such as piracy, slavery, torture, terrorism or drug trafficking. The authors do however add that some of these crimes may “constitute international crimes within our meaning at some time in the future”.³⁶¹ Werle also adopts a rather narrow definition for international crimes.³⁶² According to him, an offence falls under international criminal law if it meets the following three conditions: (1) it entails individual responsibility and is subject to punishment; (2) the norm is part of the body of international law; and (3) the offence is punishable regardless

356 Bassiouni, supra note 343, at 133.

357 Ibid., at 133-134.

358 Ibid., at 139 ff.

359 Ibid.

360 Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010), at 4.

361 Ibid.

362 Werle, supra note 352.

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of whether it has been incorporated in domestic law.³⁶³ In the end, he only recognizes war crimes, crimes against humanity, genocide and the crime of aggression as crimes under international law.³⁶⁴ He does however advance that other crimes may be included because “here the development is in flux”.³⁶⁵

On the contrary, Ratner et al. do not limit international crimes to violations of human rights and humanitarian law, but include drug crimes and terrorist offences.³⁶⁶ The authors define three strategies for providing international criminal responsibility: (1) directly providing for individual culpability; (2) obligating some or all states, or the global community at large, to try and punish or otherwise sanction offenders; or (3) authorizing states or the global community to try and punish or otherwise sanction offenders.³⁶⁷ Thus, they assert that “a violation of international law becomes an international crime if the global community intends through any of those strategies (regardless of whether they are implemented through treaty, custom or other prescriptive method) to hold individuals directly responsible for it”.³⁶⁸ Thus, in addition to genocide, war crimes and crimes against humanity, the authors also examine the following “most significant areas with respect to human rights abuses”, namely slavery and forced labor, torture, racial discrimination and apartheid, forced disappearances and terrorism.³⁶⁹

In his contribution, in order to qualify “particularly grave offences of concerns to the world community as a whole”,³⁷⁰ Einarsen introduces the new concept of “universal crimes”, which he defines as “certain acts, or kinds of inhuman behavior, that are proscribed by norms that ultimately apply and might be implemented and enforced universally”. In his classification of international crimes, Einarsen formulates the following criteria: (1) the conduct must manifestly violate a fundamental universal value or interest; (2) it must universally be regarded as punishable due to its inherent gravity; (3) it must be

363 Ibid.

364 Ibid.

365 Ibid., at 30.

366 Ratner et al., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd ed., Oxford: OUP, 2009), at 10.

367 Ibid., at 11.

368 Ibid., at 12.

369 Ibid., at 114 ff. While acknowledging that there is no agreed definition of international crimes, Aust considers that it is a “convenient term for those crimes that are a concern to every state because of their corrosive effect on international society or their particularly appalling nature”. He lists piracy, slavery, genocide, crimes against humanity, war crimes and aggression, but specifies that these “are not the only ones to be called international crimes”. Aust, Handbook of International Law (2^nd ed., Cambridge: Cambridge University Press, 2010), at 250.

370 Einarsen, The Concept of Universal Crimes in International Law (Oslo: Torkel Opsahl Academic EPublisher, 2002), at 4.

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recognized as a matter of serious international concern; (4) it must be proscribed by binding rules of international law; and (5) liability and prosecution must not require the consent of any concerned state. Thus, unlike other scholars, he explicitly introduces a “gravity clause” which he attaches to each specific type of crime.³⁷¹ He then classifies 150 specific international crimes into three groups:

(i) “core international crimes”; (ii) “other international crimes against the peace and security of mankind”³⁷² and (iii) “international crimes not dependent on the existence of threats to international peace and security”.³⁷³

Cassese appears to adopt a rather strict definition of international crimes, or of “international crimes proper”, as he calls them. He advances that an international crime is composed of the four following elements: (1) they consist of violations of international customary rules; (2) these rules are intended to protect values considered important by the entire international community and consequently bind all states and individuals; (3) there exists a universal interest in repressing these crimes and thus “subject to certain conditions, under international law, their alleged authors may in principle be prosecuted and punished by any state, regardless of any territorial or nationality link with the perpetrator or the victim, at the time of the commission of the crime”; and (4) if the perpetrator has acted in an official capacity, the state on whose behalf he has performed the prohibited act is barred from claiming immunity.³⁷⁴ In addition to war crimes, crimes against humanity and genocide, Cassese also recognizes torture, aggression and international terrorism as international crimes proper.³⁷⁵ According to him, the notion of international crimes proper does not however encompass piracy, apartheid or other crimes that are only provided for in treaties and not in customary law.³⁷⁶

Despite the controversy that remains on the notion and categories of international crimes, one distinction that appears fundamental for our study is

371 See R. J. Currie, ‘Terje Einarsen, The Concept of Universal Crimes in International Law’, 12(1) Journal of International Criminal Justice (2013) 162-163.

372 This group includes the following categories of crimes: “crimes against the United Nations and internationally protected persons”, “terrorist crimes” and “crimes of group destruction not encompassed by the Genocide Convention”.

373 He also identifies a group of “non-international crimes”, which include (i) national crimes; (ii) nationally imported international crimes; and (iii) transnational crimes. This group includes the following categories of crimes: “grave piracy crimes”; “grave trafficking crimes” and “excessive use and abuse of authorized power”. See Einarsen, The Concept of Universal Crimes in International Law, at 224 and 230. See also R. J. Currie, ‘Terje Einarsen, The Concept of Universal Crimes in International Law’, 12(1) JICJ (2013), at 162-163.

374 Cassese et al., Cassese’s International Criminal Law (3rd ed., Oxford: Oxford University Press, 2013), at 20-21.

375 Ibid., at 21.

376 Cassese, International Criminal Law (2^nd edition, Oxford: Oxford University Press, 2008), at 12.

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the one between international crimes that are directly criminalized in international customary law (“international crimes proper”) and “treaty-based crimes”,³⁷⁷ which are sometimes also qualified as “international crimes” because they are provided for in the treaties. However, they are not necessarily

“international” in the sense of constituting a threat to the fundamental values of the international community.³⁷⁸ The second conclusion that appears from this brief overview is the emergence of a category of international crimes which are neither core international crimes (genocide, crimes against humanity and war crimes), nor treaty-based crimes, but which deeply affect commonly shared values of the world community and are therefore of universal interest, such as torture and other crimes including enforced disappearances, human trafficking and possibly international terrorism.

2. Attempts by international bodies to identify and classify