Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

The question of relation between the treaty and custom does not present a topic worth particular scientific attention there where the two institutions are not being confused. This does not only occur in Czechoslovak Doctrine of international law, but the reasons for such confusion imprint – in juristic works interpretation – on the functionality of the two institutions a content that is no longer in harmony with the development stage of the contemporary general international law and above all with its peremptory rules. The qualification of international custom as tacit treaty hitherto upheld in Czechoslovak writings of international jurists – is in respect of development essentially in accord with the international law prior to the Great October Socialist Revolution and the actual exposition of the relation between treaty and custom corresponds rather to the period when the coming Soviet power was confronted (also from the power aspect) with the imperialist international legal superstructure. This old conception is, therefore, incapable to express the nowadays indisputable normative reflection of the presence of the socialist social system within the class structure of the international community of states, in the content of its legal order – in the contemporary general international law. The question of the grounds of the origin and binding character of the customary law too little pursued by our juristic works is one of the main reasons for scientifically unfounded favouring of the international treaty to the detriment of international custom – of its functional importance in present day international law. This is in particular evident in the definition of peremptority of profiling rules of the contemporary general international law, their origin and reason for their binding character can not possibly be grasped by treaty form at all. Inapplicable, therefore, are also positivistic interpretations of the origin and binding character of customary law – the interpretation both by fiction of tacit treaty and by means of the so called “recognition” theory – at their time intentionally restricting attention to form which was to be complied with by rule makers, though from such mere form the content of unwritten law can not be known: or just in order to provide room to the positivistic doctrine for speculative deductions about the law as it should be. If it is impossible to elucidate the binding character of treaty rules without taking acount of material sources only sometimes (clausula rebus sic stantibus), then it is necessary to take acount of social and political circumstances – i. e. of material sources – attendant upon the origin of a rule of law and in abstractness expressed in the hypothesis of such rule, in the customary law always. This is indirectly but convincingly corroborated by the most refined of schools of legal formalism – the normativist school – declaring, namely, as a point of its programme material sources an unfit subject of interest of the international law theory, yet in the end the Very same school came to confess its inability to elucidate the origin and reasons for the binding character of international custom just by means of the formal sources of the law. The theoretical foundation for the exposition of the grounds of origin and binding character of international customary law – making use of the material sources of the law – was laid by the Anglo-Saxon law school and so by the school working currently with the instrument of custom even in the domestic field. Decisive for the school is not an a-priori form hypothetically set down by the international law, with which – according to the requirement of the doctrine – practice must comply to enable a customary rule to come into existence, but the very practice of the states is law constituting if it is also general (usus generalis) and if accompanied by awareness of necessity (opinio necessitatis), i. e. by the realisation of unfortunate consequences in the event of different procedure. The Anglo-Saxon interpretation of the grounds of the origin and binding character of the international customary law was adopted by authors of Soviet Doctrine of international law by stating (G. I. Tunkin) that for individual countries it is necessary to regard as binding rules that are recognised by the absolute majority of countries and governed by them, if among them are states of both systems, big powers included. Here the parallel appearing endeavour to bridge the existing dissension in the interpretation of the origin and binding character of international customary law led, however, in the end (most significantly in the instance of G. I. Tunkin) to emphasizing consensus and thereby – conformably to the positivistic school – to the qualification of the international customary law as unwritten treaty; from there is but a little step to absolute favouring of the written treaty against custom, if custom be so described as unwritten treaty. In the Czechoslovak juristic works the treaty is favoured too not only because it is accompanied by an explicit expression of will compared to the hypothetical tacit and moreover presumed expression of will in the instance of custom (whereby treaty character is assigned to custom), but also because written law is attributed a higher value as compared to unwritten law and written treaty rules owing to their precision are designated as more reliable for legal regulation among states, in particular of different systems. The misconception of the value approach is proved by the relation between the customary (i. e. unwritten) general international law as treated in this country on the one hand and its codification on the other which relation is considered to be determined by the principle lex posterior derogat priori. Actually codification does not override any prior generally valid custom regulation, since universality in the acceptance of a codification treaty is as a matter of principle not required for coming in force in the instance of codification. In particular it is impossible Ito split jus cogens by such codification treaty in two particular regulations – one acting among the treaty signatories, the other for the remaining relations, since thereby would be abolished the jus cogens itself which in general international law is invalid ab initio – as also worded in Art. 53 of the Vienna Convention on the Law of Treaties (1969). The purport of codification is, therefore, merely to provide the general international customary law with a binding interpretation otherwise taken care of in the first place by the doctrine. Regarding the rules with which a codification treaty contributes to international law developments, these are of particular validity so long until rendered generally valid by law-creating custom, to which quality the codification treaty could have given just the stabilising impuls, but not the very binding character of legal validity: the same result could be brought about by a universal adoption of the codification treaty which is practically unrealistic. It is therefore wrong to see in the codification primarily a formulation of new rules in written form as currently handed down in the Czechoslovak international law literature, a codification treaty serving in the first place the written exposition of the general international law, a quality not met by newly provided rules in such treaty. Favouring of the treaty on the grounds of its written character to the detriment of custom because of its unwritten form has in the Czechoslovak Doctrine of international law the most serious consequences possibly there where written statements acquire principles of international law in the acts of potentially universal international organisations. To them should allegedly belong the part of general international law or even of a “constitution” wherefrom the validity of concrete rules of the international law is derived, though the very acts of such organisations are but of a recommending nature and the principles contained therein are no rules of international law whatever, being just a generalising interpretation of concrete rules of this law.

The purpose of the article is to determine the nature and features of the rules of international and national law, as well as their differences. The subject matter of the study is the correlation between the rules of international and national law. The research methodology includes the use of the following scientific methods: analysis and synthesis, formal and dogmatic, system and structural, hermeneutic, synergetic. Results of the study. The concept of the rule of law is analyzed and its features are outlined. The concepts of rules of national law and rules of international law are provided. The differences between the rules of international and national law are revealed. The procedure for ensuring the implementation of the rules national and international law is considered. Practical implementation. Some problematic issues arising from the interaction of rules of international and national law are investigated. Value / originality. Emphasis is placed on the need for interaction of rules of international and national law to improve the national legal system.

Click to increase image sizeClick to decrease image size Acknowledgement The author would like to thank Hugh Dyer and David Galbreath for their helpful comments. Notes Sam Zia-Zarifi, ‘Who's Afraid of International Relations?’ Leiden Journal of International Law, Vol.13 (2000), pp.1015–24. Ibid. Tam Dalyell, ‘Blair, the War Criminal,’ The Guardian, 27 March 2003; see also Richard Tyler, ‘Greek Lawyers to Sue Blair for War Crimes’, World Socialist Web Site, 2 June 2003, found at www.wsws.org See Yoram Dinstein, ‘The Distinction between War Crimes and Crimes against Peace’, Israel Yearbook on Human Rights, Vol.24 (1995), pp.1–17. Of course, the unilateral resort to force does not necessarily qualify as aggression. A state may claim that a unilateral act is lawful under customary international law, for instance in the case of humanitarian intervention, or to uphold prior resolutions adopted under Chapter VII of the Charter. In adopting the latter argument the UK government followed a similar line of argument to that used to justify NATO action in Kosovo in March 1999. See Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ Journal of Conflict and Security Law,Vol.6 (2001), pp.33–62. ‘Treaty of Peace with Germany’, American Journal of International Law, Vol.13 (1919), p.250; see also ‘International Military Tribunal Judgement and Sentences’, American Journal of International Law, Vol.41 (1947), pp.172–332. See Broomhall, (under review) pp.46–7; Sadat (under review) pp.132–8. Sadat (under review), pp.132–3. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in Cassese et al. (under review), p.428; see also A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in Cassese et al. (under review), p.10, fn.23. Dalyall, ‘Blair the War Criminal’ (note 3). Sadat, p.xiii. The ICC assumed non-retrospective jurisdiction over genocide, crimes against humanity and war crimes on 1 July 2002. This was following the 60th ratification of the Rome Treaty earlier that year. The Rome Statute reaffirms the illegality of aggression in principle but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises ‘dormant jurisdiction’ over the crime of aggression. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), p.78. Marc Weller echoes Sadat in calling the Rome Conference ‘a constitutional moment’. He writes, for instance that the Conference ‘exercised the function of an international constitutional convention’. See ‘Undoing the global constitution: UN Security Council action on the International Criminal Court’, International Affairs Vol.78 (2002), pp.693–712. With the definition of a state's right of self-defence expanding following the use of force after September 11th it is likely that a consensus on aggression is even further away. On the right to self-defence see M. Byers, ‘Terror and the Future of International Law’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Basingstoke: Palgrave, 2002), pp.118–27. Sadat (under review), p.9. Sadat, (under review), pp.8–9. See also L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, Vol.38 (2000), pp.381–474. K. Sengupta, ‘Guilty of War Crimes – or Victim of a Feud with US Soldiers?’ The Independent, 22 May 2003; Richard Norton-Taylor, ‘Soldier Arrested over Iraqi Torture Photos’ The Guardian, 31 May 2003. M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to extradite or prosecute in international law (Dordrecht: Martinus Nijhoff, 1995) Broomhall (under review), p.4. On this use of Grotian solidarism see F. Mégrét, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, Vol.12 (2001), pp.247–68; see also Bassiouni and Wise (note 16), pp.22–42. Broomhall (under review), p.105. Ibid., p.59. Ibid., p.106. See also William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’, Journal of International Criminal Justice, Vol.1 (2003), pp.39–63. Broomhall (under review), p.109. Ibid., p.112. See also Holmes, ‘National Courts versus the ICC’ in Cassese et al. (under review), pp.667–8. Antonio Cassese, ‘From Nuremburg to Rome: International Military Tribunals to the International Criminal Court’, in Cassese et al. (under review), p.18. See Sadat, pp.21–46; Broomhall, pp.71–6. Cassese (note 24), p.15. Ibid., p.16. James Crawford, ‘The Work of the International Law Commission’ in Cassese et al. (under review), pp.23–34; see also Adriann Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, In Cassese et al. (under review), pp.35–65. Sadat (under review), pp.11–12. See P. Kirsch QC and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), pp.67–91. Ibid., p.88. W.R. Pace and J. Schense, ‘The Role of Non-Governmental Organization’, in Cassese et al. (under review), pp.105–43. Ibid., p.137. Sadat (under review), p.5. Broomhall (under review), p.5. Mégrét (note 18), p.258. Sadat (under review), p.103. Mégrét (note 18), p.258. For a commentary on the origins of complimentarity and the relevant Articles of the Statute see John T. Holmes, ‘Complimentarity: National Courts versus the ICC’, in Cassese et al. (under review), pp.667–86. Rome Statute, Article 17, accessed at http://www.un.org/law/icc/statute/romefra.htm. J. Ralph, ‘Between Cosmopolitan and American Democracy: Understanding American Opposition to the International Criminal Court’, International Relations Vol.17 (2003), pp.195–212. The term ‘new sovereigntist’ is Peter J. Spiro's. See his ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’, Foreign Affairs, Vol.79 (2000), pp.9–15. In May 2002 the Bush administration ‘unsigned’ the Rome Treaty. In a public statement explaining US policy, Under Secretary of State Marc Grossman stated that the US remained ‘committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.’ Remarks to the Center for Strategic and International Studies (CSIS), Washington, DC, 6 May 2002, accessed at http://www.state.gov/p/9949.htm. The US government opposes the Rome Statute, however, because it has delegated jurisdiction to an unaccountable court. In other words the US does not necessarily oppose universal jurisdiction for core crimes, but it has insisted that such jurisdiction can only be enforced by national courts. This position can be found in D.J. Scheffer, ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, Vol.35 (2002), pp.47–100. See also R. Wedgewood, ‘The International Criminal Court: An American View’, European Journal of International Law, Vol.10 (1999), pp.93–107. The subject is addressed in the Cassese volume by Hans-Peter Kaul who was Deputy Head and Head of the German Delegation to the Rome Conference and Preparatory Committee respectively. He argues that ‘the idea of universal jurisdiction entitles states to do collectively what they have the power to do individually’. States ‘may confer this individual power on a judicial entity they have established and sustain together and which acts on their behalf.’ He argues that the principle of universal jurisdiction for the core crimes is well established in customary international law. ‘Consequently, States have a legitimate and acknowledged legal basis to use, if they so wish, the universality approach with regard to core crimes, either in their national criminal jurisdiction or when establishing together a new and complimentary international criminal justice system as during the UN negotiation for the ICC.’ Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (under review), p.591. America's pressure on Belgium to repeal legislation providing for universal jurisdiction suggests that the US statement supporting universal jurisdiction enforced at the level of the state is merely a rhetorical strategy to disguise a policy that puts American national interests ahead of the universal interest. See C.S. Smith, ‘Rumsfeld says Belgian law could prompt alliance to leave’, International Herald Tribune, 13 June 2003’, and ‘Belgians are incensed by American pressure on war crimes law’, International Herald Tribune, 14 June 2003. Broomhall (under review), p.93. See also Jan K. Kleffner, ‘The Impact of Complimentarity on National Implementation of Substantive International Criminal Law’, Journal of International Criminal Justice, Vol.1 (2003), pp.86–113. Darryl Robinson, ‘The Rome Statute and its Impact on National law’, in Cassese et al. (under review), pp.1849–50. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. For detailed commentary on these procedures see Olivier Fourmy, ‘Powers of the Pre-Trial Chambers’ in Cassese et al. (under review), pp.1207–30. P. Kirsch, QC and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (under review), p.662. For similar arguments see Fernandez de Gurmandi, S.A., ‘The Role of the International Prosecutor’, in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), pp.175–88. See Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). Grossman, ‘American Foreign Policy and the International Criminal Court’ (note 42). For this see Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). See also David P. Forsythe (2002) ‘The United States and International Criminal Justice’, Human Rights Quarterly, Vol.24, pp.974–91. Broomhall (under review), p.68. At the time of writing 90 of the 139 signatories had ratified the Rome Treaty. Sadat notes that opponents of the idea of an independent Prosecutor included not only the US, but also the Russian Federation, China, France, Israel, India, Malaysia, Egypt and Syria. The UK, she notes, was initially undecided. Its decision to join the Like-Minded Groups was a pivotal moment in the history of the negotiations. Sadat (under review), p.94. Rome Statute, Article 16 (note 40). D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, Vol.93 (1999), p.18. Kaul (note 42), p.600. Rome Statute, Article 12 (note 40). Not only did the US vote against the Treaty at the Rome Conference, it has since pursued a strategy to exclude American citizens from the Court's jurisdiction. On the use of Article 16 to negotiate exemptions for UN personnel see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, Vol.14 (2003), pp.85–104; on the use of Article 98 to negotiate bilateral agreements promising US citizens immunity from ICC jurisdiction, see S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, Vol.1 (2003), pp.114–34. Kaul (note 42), p.607. Sadat (under review), p.118. Ibid., p.106; see also E. Wilmshurst, ‘Jurisdiction of the Court’, in Lee (note 48), pp.127–42. Sadat (under review), pp.120–21. Rome Statute, Article 72 (note 40). H.J. Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’, in Roggemann and S˘arccˇevicˇ (under review) pp.116–17. Rome Statute Article 72 (note 40). W. Schabas, ‘National Security Interests and the Rights of the Accused’, in Roggemann and [Sbreve]arcčevič (under review), p.113. Rome Statute, Article 66 (note 40). Schabas (note 65), p.109.

The relationship between German domestic law and public international law is often described as one of 'openness’ or 'friendliness towards international law.' The main gateway for international law into German domestic law is Article 25 of the Constitution which provides that the 'general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.’ The 'general rules of international law’ include the rules of customary international law, including jus cogens, and the general principles of law recognized by civilized nations. Customary international law, however, does not require that all States have expressly consented to these rules. Germany thus need not necessarily have recognized such a rule for it to become an integral part of federal law. In recent years, rules of customary international law have increasingly been 'found’ by domestic, international and internationalized tribunals without due regard for the opinio juris and practice of States. There is thus a possibility of customary international law rules emerging in the future which may not necessarily be in line with German basic laws and values. For example, Holocaust denial could well be covered by customary international law rules on freedom of expression and 'Scientology’ could benefit from customary international law rules on freedom of religion. The paper therefore examines whether there exist any limitations to the application of general rules of international law in German domestic law. Limits are developed both from customary international law itself as well as from German constitutional law. In particular, the division of powers as well as the principle of the rule of law (the requirement that any act limiting individual freedoms must have a statutory basis and must be clear and foreseeable) and the principle of democracy preclude certain customary international law rules from becoming an integral part of federal law.

Introduction: Today, a new concept of understanding international criminal law as an independent branch establishing the substantive legal grounds for recognising a particular act as criminal is being developed. Such acts certainly include war crimes (criminal violations of the laws and customs of warfare). Meanwhile, there is an urgent need to develop a categorical concept of “war crime” in international criminal law, to determine the place of such crimes in the system of crimes against peace and security of mankind, and to resolve several theoretical problems of the substantive legal basis for establishing international criminal liability for war crimes. In addition, despite the constitutional provisions on the primacy of international law over domestic law, the issue of the degree of compliance of national criminal law with the provisions of international law in the area of regulation of liability for war crimes remains unresolved. Objective: The study aims to find opportunities to develop effective mechanisms for classifying war crimes in the current war in Ukraine and to bring perpetrators to justice. The rules of international law are highly developed, primarily reflected in the availability of a broad and detailed list of acts recognised as international crimes. According to the amendments to the Rome Statute that added war crimes to the International Criminal Court (ICC) jurisdiction, a state must confirm the ICC’s jurisdiction over aggression for its citizens to be tried for the crime. Results: However, Russia has not done so. Due to this limitation, there are frequent calls for establishing a separate tribunal to prosecute Russian officials for aggression. However, implementing these calls still faces problems due to insufficient precedents. At the same time, the list of actions that can be considered violations of the laws and customs of war does not necessarily have to coincide with the list in Article 8 of the Rome Statute or the list of severe violations of international humanitarian law under the Geneva Convention or the First Additional Protocol.

At meantime the era of human rights succeeding the end of World War Ⅱ, the institution and order of international society underwent dramatic transformation that obviously featured in the expansion, specialization and systemization of international organizations, for example, the United Nations and its sub-organizations such as the unification of the European Union and American and African regional organizations. In addition, the order of international laws has changed radically. Besides the interacting development among the independent systems of international environmental law, international criminal law, international economic law, that has delicately constituted both the procedural and essential rules of international law, the relation between international laws and sovereign nations has also been re-defined. Through the introduction to the concept of ”complete value of international society”, the connection between sovereignty and international law has been re-interpreted. The most innovative breakthrough was nothing but the concepts of Jus Cogens and Obligations Erga Omnes, as well as the acceptance of the philosophical reasoning behind the concepts. Thus international law has gradually diversified its appearance and, by further development of the above concepts that jointed the different fields of international law, the institution of international law has been overturned. From the aspect of substantial norm, the continuing restriction of applying the opposition rule, development of treaty reservation, succession and admission of nation, ruling of extradition treaties, restriction on national exemption, defining the serious jeopardizing act of international crime, the gradual change of the status of international soft law and the transforming of the national liability system, have attributed to revolution of the content of international law. From the aspect of the procedural norm, the expansion of common jurisdiction and the change of international/domestic lawsuit initiation, have shown great influence that closely connected international criminal law. Therefore, Jus Cogens ought to be the most important medium of the recent development of international law that revealing the combination of Jus Cogens and state responsibility law system, also further led international law to the equivalence of rights and obligations. Frankly, the Vienna Treaty Law Convention signed in 1969, was the milestone of the international law development, which positioned the Jus Cogens in the statute law. If ”power-oriented” is the characteristic of international law in 19th century, then international law after 1950s has gradually dispensed primitiveness and become ”rule-oriented”. Although 1969 could be the beginning of Jus Cognes, suspicion on carrying out this concept in international law still remains. International law scholar, Ian Sinclair, concluded opinions toward Jus Cogens that further confirmed ”Jus Cogens is still a mystery”. Some scholars even express directly that nevertheless adopting Jus Cogens has essentially attributed to the transformation of international law, yet there is worry about the application of Jus Cognes could be contradictive, and even opening the gate for some certain countries to import particular international law systems matching their ideology, thus becoming denial to a diversified international society. Even though contrary opinions toward Jus Cogens remain, from 1968 the concept has been accepted by sovereign countries and also adopted to judgments that further expand Jus Cogens, making this theory combine with other institutions of the international law rather than be confined within treaty law field. Hence, focusing on Jus Cogens and the connection as well as the change of Jus Cogens in the late 40 years, this thesis analyzes the elaboration on Jus Cogens from national practice, international justice and scholars. However, this thesis could only be able to introduce this theory briefly due to the limited length. Therefore, this thesis mainly discuss the following particular sectors of the theory of Jus Cogens: (1) the definition and development of Jus Cogens. (2) the objects regulated by Jus Cogens and the effect. (3) connections between Jus Cogens and other international law concepts newly developing trend. (4) At last, examining and looking back to dialogues made between Jus Cogens and international law.

The article examines the norms of current international criminal law, from the standpoint of the lack of a conceptual definition of the concept of "war crimes", which, in turn, is a gap in international law. Considering war crimes from the current point of view, given the accumulated positive scientific achievements and law enforcement practice, it is reasonable to define them as gross violations of international humanitarian law committed during armed conflicts (international and non-international), entailing individual criminal responsibility for international right. It is clarified that war crimes are a type of crime against the peace and security of mankind, in connection with which they have common features for these crimes: increased degree of public danger; the orientation of such criminal acts on the interests protected by international law; their criminalization and punishment are carried out in accordance with international law. It is proved that war crimes are characterized by special (peculiar only to them) features: it can be committed only during an armed conflict; the object of encroachment is the procedure of armed conflict established by international law and the security interests of persons (individuals) protected by international law; gross nature of the violation; the consequences for the rights and interests protected by international humanitarian law; peculiarities of the subjective side - along with the features inherent in all crimes against peace and security of mankind, it is necessary for the perpetrator to be aware of the fact of armed conflict; the perpetrator of a war crime must be aware of the factual circumstances that indicate the protected status of persons - victims of the crime. Given these special features of war crimes, their detailed definition is proposed: socially dangerous, criminal acts committed during armed conflicts (international or non-international) that encroach on the established by international humanitarian law, the interests and security of defenders, and entail individual criminal liability in accordance with the rules of international criminal law.

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

THE CRIME OF AGGRESSION AND THE COMPLEMENTARITY IMPERATIVE The foundation of the international criminal justice system dominated by the International Criminal Court is the notion that states, and not the ICC, should take on the primary responsibility to investigate and prosecute cases of genocide, crimes against humanity and war crimes. The ICC should in principle only step in when states are unwilling or unable to deal with the matter at hand. This is known as the principle of complementarity. Needless to say, not all states are party to the ICC. However, other enforcement regimes beyond the Rome Statute of the ICC, for instance the UN Torture Convention, the Genocide Convention and the Geneva Conventions provide for an enforcement regime based on the domestication of crimes under international law and the concomitant possibility to enforce international criminal law at the national level. The Kampala Resolution on the Crime of Aggression adopted by the Assembly of States Parties expresses the sentiment that the crime of aggression, unlike the other core crimes, should rather not be prosecuted at the national level. There is no prohibition of national prosecutions. But there is a strong hint that there should not be any progressive domestication of the crime of aggression. Understandings 4 and 5 regarding the amendments to the Rome Statute on the crime of aggression provide that the amendments to the Rome Statute are adopted for purposes of the Rome Statute only, and not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than the Rome Statute. It is further understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another state. The latter Understanding is actually superfluous. The Rome Statute does not create a duty on the part of states parties to criminalise the core crimes under their domestic law. Of course, there is a duty on states parties to cooperate with the ICC, but there is no duty with respect to the implementation at national level of substantive international criminal law, safe for the modification of crimes against the administration of justice, thus including the ICC administration of justice as duly protected under domestic law as well.

This chapter will consider the determination at the ad hoc Tribunals that aiding and abetting by omission is a form of responsibility in international criminal law. The elements and history of this form of responsibility will first be examined. The chapter will also consider the challenge made in the Karadzic case to the proper foundation in international law for the existence of this form of omission liability. The failure by the ah hoc Tribunals to articulate adequate evidence of the existence of this form of omission liability serves as an example of declaratory lawmaking, by which the ad hoc Tribunals have at times shown a tendency to assert the existence of a rule of customary international law without satisfying the elementary requirements of this importance process of international lawmaking. In this way, the judicial creativity shown by the ah hoc Tribunals can at times extend beyond the proper limits of a court in applying existing law. The early position at the International Criminal Court (ICC) will also be briefly considered, as will the importance of the Rome Statute's position of omission liability. It will be argued that, unlike command responsibility, aiding and abetting by omission has not been shown to have a foundation in customary international law and it does not have a clear or coherent place in the realm of international criminal law. Command responsibility is, it will be posited, the only true form of omission liability in international criminal law, and the development of aiding and abetting by omission is legally flawed.

This paper explores the power of images vis-à-vis the practice and theory of international law, with a focus on rules of customary international law, i. e. the unwritten general rules of international law, that apply to all states (as well as to non-state actors falling within their scope of application), irrespective of specific acceptance. As Sherwin writes: “We are awash in images.” States, international organizations (IOs), non-governmental organizations (NGOs), insurgents, terrorists and other groups of individuals of all sort, are in the news and our movies, on our TV screens, newspapers, internet and social media. Modern technologies, visual digital technologies, in particular, have a profound impact on the means and speed of communications across the globe and immensely facilitate the task of seeking information of all sort. In international law, images are a means for spreading knowledge about the practice of states and other actors. As with law in general, images are also found to be a valuable resource in explicating the rules of international law. They aid and clarify the analysis of international law and the determination of the existence and content of rules of customary international law. In contemporary international settings, however, modern technologies of visual representation are also a means for influencing the development of international law, i. e. the existence and content of international norms. Moreover, looking at implementation, at no time in history has there been more information available to governments and the public about violations of international norms (particularly, but not exclusively human rights violations): more and more these violations are documented through images. Yet, international law doctrines have failed so far to comprehensively assess the power of images, beyond that of a toolkit for thick cultural description – the power of narrative – and analysis. The present essay offers a contribution in this direction.

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

This research investigates various environmental crimes which include unlawful deforestation besides industrial pollution and newly accepted "ecocide" posing a substantial threat to global ecosystems as well as human populations throughout the world. Environmental crimes hurt two or more countries together with ecosystems but go undetected because international criminal law has inadequate attention to these transnational problems. The International Criminal Court under the Rome Statute assumes responsibility for prosecuting international crimes that include genocide alongside war crimes and crimes against humanity and the offense of aggression. Download the full text for sources on participating states and challenges faced by the Court. This research investigates how the International Criminal Court manages environmental offences while scrutinizing its authority constraints and possible future modifications. This study investigates how expanding the ICC's jurisdiction should include environmental crimes by designating ecocide as a core prosecutable offense. The study uses both legal research techniques and case studies to examine how existing ICC regulations fail to handle environmental crime charges and discover three major problems including corporate legal obligations, national sovereignty authority and proof collection difficulties. The study demonstrates the need to expand ICC jurisdiction to advance environmental crime prosecution by supporting more robust global environmental legal systems that promote accountability. The research continues to push forward international environmental justice debates while urging legal changes to establish more extensive environmental protection measures in international criminal law.

As mentioned in the Introduction of this book, customary rules of international investment law remain of fundamental importance even in light of the present proliferation of BITs. The three reasons traditionally invoked why custom remains important in contemporary international law have been succinctly summarized by ILC Special Rapporteur Wood as follows: