International criminal law

Abstract

INTRODUCTION There are close connections between international humanitarian law and international criminal law. Perhaps the most obvious of these is the circumstance that war crimes trials have played a major role in the development of what is commonly referred to as international criminal law. Yet it seems useful and justifiable to treat the two bodies of law separately, for on the one hand, as the previous chapter has sought to show, humanitarian law covers more than war crimes, crimes against humanity, genocide, and aggression, and international criminal law, by the same token, covers more than humanitarian law as well. Hence the two branches overlap, but are not identical, and it cannot be said that one subsumes the other. What makes international criminal law particularly fascinating is that it assigns responsibility to individuals, and thereby breaks through the classic structure of international law. The current chapter will address the role of the International Criminal Court (ICC) and war crimes trials, but will also pay some attention to more ordinary forms of crimes with transboundary elements, and will discuss the forms of cooperation states have developed in combating crime. Even though the term ‘international criminal law’ is usually reserved for war crimes and the like, it should not be forgotten that there is a vast body of legal instruments dealing with international cooperation in combating other crimes. The chapter will also contain a discussion of the law of extradition, as the classic form of inter-state cooperation in criminal matters. WAR CRIMES TRIALS AND THE ICC Throughout history it has often been the case that once a war had come to an end, the victorious powers would quickly mete out ‘justice’ by executing enemy leaders or, more charitably perhaps, ordering them into exile, as happened to Napoleon. If there were trials, they would be conducted by national courts, trying foreigners suspected of war crimes and, one may surmise, often enough finding them guilty. This would occasionally even apply after civil war. A famous example is how Henry Wirz, a Confederate camp commander during the US civil war, maltreated prisoners of war and was later tried by a military commission in Washington; he was hanged in 1865.