Home double jeopardy Principles behind the formulation of International Criminal Law

Principles behind the formulation of International Criminal Law

October 8, 2021

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This article has been written by Sneha Jaiswal currently pursuing BA LLB (Hons.) from Christ (Deemed to be University) Delhi NCR. This article provides an insight into the principles that are behind the formulation of international criminal law. Also, it gives an overview of both the general principles as well as the fundamental principles of ICL.

Table of Contents

Introduction

International criminal law is a body of legislation that prohibits specific types of behaviour that are considered significant crimes and it governs the procedures for investigating, prosecuting, and punishing those types of behaviour, and makes criminals personally liable for their actions. The repression of major violations of international humanitarian law is critical for ensuring that this branch of law is respected, especially given the severity of specific violations, classified as war crimes, that the international community as a whole must penalize.

General principles of ICL

International criminal law [ICL] encompasses a number of general principles that serve as the foundation and prerequisites for prosecuting persons for international crimes such as genocide, crimes against humanity, war crimes, aggression, and other crimes against humanity’s peace and security. The phrase “general principles of law” recognised by civilised nations refers to principles that are so general that they apply to all legal systems that have reached a similar level of development. International criminal law is founded on a number of fundamental ideas.

It is becoming more important to coordinate respect for these principles as international crimes increasingly incorporate extraterritorial aspects, necessitating increased engagement between States. The states must uphold them while also adhering to their own national criminal law principles and any special principles outlined in regional bodies’ agreements to which they are a concerned subject.

Part III of ICC statute

The broad principles of international criminal law are spelt out in Part 3 of the ICC Statute, titled “General Principles of Criminal Law” from Article 22 to Article 33. Part 3 is a significant accomplishment since it reflects an attempt to combine multiple criminal justice systems into a single legislative instrument. For the first time, it aims to formalise ideas like criminal participation modes, the mental element required for crimes, and accessible defences.

Part III of the ICC has the following potential benefits

The ability of judges to formulate criminal law principles will be constrained.
It provides the Court with a legislative structure.
It ensures that predictability has an impact on the rights of the accused.
It encourages the use of uniform jurisprudence and practice.

Fundamental principles of ICL

The principles of legality and double jeopardy are the two most fundamental or essential elements of international criminal law. The applicability of these concepts in international criminal prosecutions before international and domestic tribunals is always changing.

Principles of legality – nullum crimen, nulla poena sine lege

The principle prohibiting the retroactive enforcement of crimes and sanctions is a basic component of human rights law that applies directly to the international criminal law system. To be held criminally responsible, the behaviour must be illegal and punishable at the time of the offence being committed.

This is referred to as the principle of legality or nullum crimen sine lege and nulla poena sine lege. Given the often imprecise nature of international criminal law sources, the principle of legality is a crucial fundamental principle in international criminal law particularly in the case of customary international law.

Customary International Law

To avoid violating the principle of legality, it is essential when applying custom in criminal jurisdictions to ascertain precisely what the content of the law was at the time of the offence. It is also worth knowing whether it is reasonable to assume that the accused was aware of the criminal nature of his actions at the time when the crime was carried out.

Several reasons have aided in bringing to light the customary nature of statutory limitations’ non-applicability to war crimes and crimes against humanity.

A growing number of states have stated in their penal statutes that statutory limitations do not apply to these offences;
Article 29 of the ICC Statute codifies this concept, which its drafters saw as critical in avoiding impunity for serious crimes.

The idea of legality is codified in Article 15 of the International Covenant on Civil and Political Rights, 1996 (ICCPR), which states that no one may be convicted or punished for an act or omission that did not, at the time, constitute a criminal offence under the national or international law. It further states that no penalty may be imposed that is greater than that which was in effect at the time the criminal offence was committed. The goal of this principle is to make sure that the legislation is clear and predictable so that people can anticipate the legal implications of their activities. Article 22 of the ICC statute provides a similar clause on the concept of legality. According to this principle, even though the conduct is not unlawful under national law, it does not exclude a person from being prosecuted for it under international law.

The principle of legality is addressed in Articles 22 to 24 of the ICC Statute

Article 22 establishes the principle of nullum crimen sine lege, which declares that an individual can only be held criminally liable for an action that was unambiguously criminal at the time it was committed.
Article 23 establishes the principle of nulla poena sine lege, which stipulates that an individual can only be penalized in accordance with the law.
Article 24 establishes the principle of non-retroactivity, which provides that no person shall be held criminally liable under the Statute for an action that occurred prior to committing the crime.

The principles of non-retroactivity, specificity, and analogy prohibition are all linked to the notion of legality.

The non-retroactivity principle states that a law cannot be applied to events that occurred before it was enacted.
The principle of specificity requires a sufficiently detailed definition of the prohibited act.
While the prohibition of analogy necessitates a precise interpretation of the concept.

The International Criminal Tribunal for the Former Yugoslavia has ruled that the norm of nullum crimen sine lege is satisfied when at the time of the crime;

A specific convention binds a state to a treaty, and
Individual criminal liability for the person who breaks the rule is imposed under treaty or customary law when the rule is violated.

In such instances, the legality concept must also be considered.

Some treaties, such as the Genocide Convention and the Geneva Conventions, especially their clauses on grave violations, create international crimes and are immediately enforceable on an individual.

Forms of international criminal responsibility

Individual criminal responsibility

Individuals can be held criminally accountable not only for committing war crimes, crimes against humanity, or genocide, but also for attempting, enabling, or aiding and abetting the commission of such crimes, according to international criminal law. Individuals who plot, instigate, or command the commission of such crimes may be held legally accountable.

Command responsibility

Failure to act might also result in international criminal law violations. Armed troops or organisations are usually assigned to a command that is responsible for their subordinates’ conduct. As a result, hierarchical superiors may be held accountable if they fail to make sufficient efforts to prevent their subordinates from committing major infractions of the international humanitarian law.

The principle of individual criminal responsibility is addressed in Article 25 of the ICC Statute

The Court’s jurisdiction and the concept of individual criminal responsibility are mentioned in Article 25 of the ICC Statute. It specifies in Article 25 (1) that the Court has jurisdiction over natural people as a result of this Statute. Furthermore, according to Article 25 (2) anybody who commits a crime within the Court’s jurisdiction is solely responsible and subject to punishment in accordance with this Statute.

In accordance with Article 25 (3) of the Statute, an individual shall be criminally accountable and liable for the punishment for a crime within the jurisdiction of the Court if that person:

Commits such a crime, whether alone, with another, or through a third party, regardless of whether the third party is criminally liable;
Orders, solicits, or encourages the commission of a crime that is actually committed or attempted;
Aids, abets, or otherwise assists in the commission or attempted commission of such a crime, including providing the means for its commission;
Contributes in any other way to the commission or attempted commission of such a crime by a group of people acting together for a common goal. This contribution must be voluntary, and it must either:

(i) Be made with the intent to enhance the group’s illegal activity or criminal purpose, if that activity or purpose involves the commission of a crime within the Court’s jurisdiction;

(ii) Be made with the knowledge that the group intends to commit the offence;

In the case of genocide, incites people to commit genocide in a direct and public manner;
Attempts to commit such a crime by taking a considerable step toward its completion, but the crime is not carried out due to circumstances beyond the individual’s control. However, if a person abandons the attempt to perpetrate the crime or otherwise stops the execution of the crime, that person is not liable for punishment under this Statute for the attempted crime.

Article 25 (4): The obligation of the States under international law is not affected by any provision in this Statute relating to individual criminal responsibility.

Article 26 of the ICC Statute addresses the principle of exclusion of jurisdiction over minors

Article 26 talks about the exclusion of jurisdiction over persons under eighteen. Any person who was under the age of eighteen, also referred to as a minor, at the time of the alleged crime is not subject to the Court’s jurisdiction.

Article 27 of the ICC Statute addresses the principle of irrelevance of official capacity

Article 27 of the Statute contains two distinct concepts, namely official capacity and personal immunity.

Article 27 (1) of the Statute states that this Statute applies to all people equally, regardless of their official status. Official status as a Head of State or Government, a member of a Government or Parliament, an elected representative, or a government official, in particular, does not protect a person from criminal liability under this Statute, nor does it provide a reason for reduction of sentence or punishment awarded. In other words, it states the doctrine of “official capacity”. For instance, state officials cannot be subjected to criminal responsibility for acts carried out in the name of the State.
Article 27 (2) of the Statute states that the immunities or special procedural rules that attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction against such a person.

Article 28 of the ICC Statute addresses the principle of responsibility of commanders and other superiors

Article 28 makes a distinction between civilians and military superiors. Its mental criterion is that the superior was aware of, should have been aware of, or consciously ignored the fact that subordinates were about to or have committed crimes. It necessitates a causation aspect relating the superior’s failings to the crimes committed, but it makes no explicit provision requiring a superior to be punished for previously committed offences.

Article 28 (a) of the Statute states that a military commander or anyone effectively functioning as a military commander is criminally accountable for crimes committed by forces under his or her effective command control, or effective authority and control where;

that military commander or person either knew or should have known that his or her subordinates were committing or planning to commit such crimes; and
that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress the conduct of the crime, or to refer the matter to the appropriate authorities for inquiry and prosecution.

Article 28 (b) of the Statute states that a superior is criminally liable for crimes committed by the subordinates under his or her effective authority and control, where: –

the superior either knew or intentionally ignored evidence that the subordinates were committing or planning to commit such crimes;
the offences involved conduct that is under the superior’s effective control and supervision; and
the superior failed to take all necessary and reasonable steps within their ability to prevent or repress their actions, or to report the incident to the appropriate authorities for investigation and prosecution.

Article 29 of the ICC Statute addresses the principle of non-applicability of the statute of limitations

Article 29 deals with the non-applicability of the statutes of limitations, stating that offences committed within the Court’s jurisdiction are not subject to any statute of limitations.

Article 30 of the ICC Statute addresses the principle of the mental element

Article 30 deals with the mental element. Article 30 (1) states that a person is criminally accountable and liable for punishment for a crime committed within the Court’s jurisdiction only if the material elements are committed with intent and knowledge unless otherwise stipulated.

According to Article 30 (2), a person has intent if:

in respect to conduct, the person means to engage in the conduct;
in relation to a consequence, the person aims to cause the result or is aware that it will occur in the ordinary course of events.

Article 30 (3) states that for the purposes of this article, “knowledge” refers to being aware of the existence of a circumstance or the likelihood of a result occurring in the normal course of events. The terms “know” and “knowingly” are to be interpreted in this way.

Article 31 of the ICC Statute addresses the grounds for excluding criminal responsibility

There are various grounds involved in Article 31 of the ICC Statute for excluding criminal responsibility. Article 31 provides a list of defences like in the case of insanity, intoxication, self-defence, and duress/necessity.

Insanity

A person is not criminally accountable if, at the time of the offence, they: –

suffered from a mental disease;
suffered from a mental defect;
their ability to recognise the illegality or nature of their actions is destroyed; or
their ability to manage their actions in order to comply with the law is destroyed.

Intoxication

A person is not criminally accountable if, at the time of the offence, they were intoxicated;

this impairs their ability to recognise the illegality or nature of their actions.
their ability to control their behaviour in order to comply with the law is destroyed.

The exception to this is if the person was intoxicated voluntarily that means someone consumed intoxicating substances with their own will. Voluntary intoxication is never a defence to a general intent crime.

Self-defence

A person is not criminally accountable if, at the time of the offence: –

there existed an imminent and unlawful danger to a person or property by unlawful force;
the accused’s reaction was proportionate;
applies to the defence of self, another or property.

Duress/Necessity

Duress means the act of using force, threats, coercion, or psychological pressure to get someone to act against their free will. A person is not criminally accountable if, at the time of the offence there exists: –

a threat of imminent death or bodily harm to the individual concerned or a third party made by others or by events beyond that person’s control;
the individual’s reaction is a required and justifiable response in order to avoid the threat; and
the individual does not want to inflict more harm than the one that is being avoided.

Article 32 of the ICC Statute addresses the principle of mistake of fact or mistake of law

Article 32 is concerned with factual and legal errors. It said that an error of fact could be used as a defence, but a mistake of law could not. This defence, however, is dependent on the common law definition of a mistake of fact or law. A mistake is only crucial if it can be demonstrated that it negated the offender’s mental element.

A mistake of fact can be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.
A mistake of law in determining whether a particular type of action constitutes a crime within the Court’s jurisdiction shall not be used to absolve a person of criminal liability. However, if it eliminates the mental element required by such a crime, or as provided for in Article 33, a mistake of law may be a basis for excluding criminal liability.

Article 33 of the ICC Statute addresses the principle of superior orders and prescription of law

The fact that a person committed a crime within the Court’s jurisdiction in response to an order of a Government or a superior, whether military or civilian, does not absolve that person of criminal responsibility unless:

the person was under a legal obligation to obey the Government or superior in question; or
the person did not know that the order was unlawful; and
the decree was not manifestly unconstitutional.
Orders to commit genocide or crimes against humanity are manifestly illegal for the purposes of this Article.

Principle of double jeopardy – ne bis in idem

The idea of double jeopardy, or ne bis in idem, is another central tenet of international criminal law. This prevents someone from being tried twice for the same offence, and it derives from concerns about defendants fairness and desire for thorough investigations and prosecutions. This principle is explicitly reflected in the statutes of international courts and tribunals.

Ne bis in idem, a Latin maxim expresses the notion that “no one should be tried or punished for the same offence more than once”. It ensures defendants’ fairness by assuring them that the judgement will be final, and it protects them from arbitrary or malicious prosecution on both a national and an international level. Furthermore, this principle aims to ensure that investigations and prosecutions are initiated and carried out with diligence. It’s worth noting that the worldwide application of ne bis in idem is reliant on how it’s written in the relevant laws of international tribunals.

Principle of state sovereignty vis-a-vis the instance of double jeopardy

This idea of double jeopardy only applies to courts inside the same legal system, and it does not apply uniformly between states. A court in-country ‘A’, for example, cannot try a defendant for a crime that has already been adjudicated by another court in-country ‘A’, but it may be able to try a defendant for the same crime that has previously been adjudicated by a court in-country ‘B’. This is due to the principle of state sovereignty, which states that the courts of one state cannot bind the courts of another. Nonetheless, each state has its own perspective on how to deal with international law, and the principles at cross-border applications are ambiguous and not recognised as a general norm of international law. At the international level, courts have chosen a variety of approaches that have an impact on national prosecutions.

The ICC’s jurisdiction is secondary, not paramount. In particular, an individual might be tried under national law for crimes committed outside the ICC’s jurisdiction for the same conduct that resulted in an ICC conviction. If a national proceeding was unfair or essentially a fake trial to avoid ICC jurisdiction, the ICC might try an individual for conduct that was the subject to that proceeding.

Basis of Jurisdiction

A state’s jurisdiction is limited to its own territory. The ability to make law, interpret or apply the law, and take action to enforce the law are all part of this jurisdiction. While enforcement jurisdiction is usually limited to national territory, international law recognises that a State may legislate for or adjudicate on events that occur outside its borders under certain circumstances.

Extraterritorial jurisdiction has been justified on the basis of a variety of principles. These include:

The principle of active personality or nationality (acts committed by persons with the forum State’s nationality)

Under this principle, nationals continue to keep a connection with their State wherever they may be. They have a right to state protection and also continue to remain subject to certain laws of the State of their nationality. States might claim jurisdiction over their nationals for violations of such domestic laws to which the nationals are bound even while committed abroad, based upon the allowance made by their domestic system.

The principle of passive personality (acts committed against the forum State nationals)

Under this principle, the States claim jurisdiction for criminal acts committed outside its territory, not necessarily by their citizens if the victim is of the State’s nationality. This is a controversial principle that claims jurisdiction because it is based on the victim’s nationality rather than a link to the territory or the offender. It is mentioned in a number of anti-terrorism treaties.

The protective principle (acts affecting the security of the State)

This principle states that States can claim jurisdiction over criminal acts committed by aliens outside of their territory if the act jeopardises the security and territorial integrity of the State.

While these principles have various degrees of acceptance in state practice and opinion, they all need some sort of connection between the act committed and the State asserting jurisdiction. There is no such requirement for universal jurisdiction, which is another ground for asserting extraterritorial jurisdiction.

Universal jurisdiction is the assertion of jurisdiction over offences regardless of where they were committed and the nationalities of the alleged perpetrator or of the victims. Universal jurisdiction is said to apply to a variety of crimes that are justified or mandated by international public policy and some international treaties for all states to prosecute.

Statutory limitations

The imposition of a statutory limitation on prosecution in the case of a criminal offence, known as time-barring, tries to avoid unnecessary delays between the commission of the crime and the prosecution and potential punishment of the alleged offender. Legal processes may be subject to statutory restrictions in one of two ways.

If a specified amount of time has passed since the offence was committed and no criminal procedures or verdict has been obtained, the time bar may apply to the prosecution.
The limitation could only apply to the application of the sentence like the passage of time may preclude the imposition of criminal punishment.

For minor criminal offences, most legal systems have statutory limitations. Several legal systems, particularly those founded on common law, do not provide statutory limitations for commencing criminal prosecution for major offences. Legislatures in countries where civil law prevails have either created statutory limitations for serious offences that are much longer than those for minor offences or, like in common law countries, do not allow such limitations to be imposed at all in the case of serious criminal offences.

Criminal punishments are rarely applied once a certain amount of time has passed. In common law, it does not exist at all, and it is severely limited in other legal systems. Where it does exist, the time limits for the most serious offences are often very long, and they do not apply to specific types of offences or situations involving dangerous or repeat offenders.

Under International Law, certain offences are not subject to statutory limitations

Time limits for war crimes are not addressed in the 1949 Geneva Conventions or its 1977 Additional Protocols.

The 1968 United Nations Convention on the Non-Application of Statutory Limitations to War Crimes and Crimes against Humanity covers both prosecutions and sentence impositions. It includes war crimes, including severe breaches of the Geneva Conventions and crimes against humanity, as well as acts resulting from a policy of apartheid and genocide, perpetrated in both war and peace. It is retroactively effective, and under its provisions, states agree to repeal existing statutory limitations or to enact laws or other steps to ensure that statutory limitations are not applied to such offences.

Furthermore, Article 29 of the Rome Statute of the International Criminal Court (ICC) states that statutory limitations do not apply to war crimes, crimes against humanity, genocide, and the crime of aggression.

Immunity

Immunities are a result of the concept of state sovereignty. State representatives have always been accorded immunity from a foreign jurisdiction. Immunity is intended to allow State representatives to carry out their official duties and represent the country in international affairs. There are two types of immunity that are recognized namely personal immunity and functional immunity.

For the duration of their term in office, personal immunity protects the activities of persons crucial to a State’s administration, whether in their personal or official capacity.
Official acts of State representatives carrying out their functions for the State are protected by functional immunity, which continues to safeguard such acts beyond the end of their time in office.

Immunity thus functions as a procedural obstacle to foreign jurisdictions initiating proceedings against protected persons; nevertheless, the official’s State of nationality may waive the immunity.

Article 27(1) of the ICC Statute expressly excludes the availability of functional immunities in circumstances of international crimes. According to Article 27 (2) of the ICC Statute, personal immunity is not available in cases of international crimes. Bypassing appropriate legislation in their national law, the States are required by the ICC Statute to remove immunity for the commission of international crimes. With respect to non-party States, Article 98(1) of the ICC Statute qualifies the renunciation of immunity.

Conclusion

International law is a system of norms that is necessary to regulate the behaviour of nations or states toward one another in order to maintain international peace and welfare. International law exists to keep the world in order and sustain peace, as well as to resolve numerous conflicts between nations/states and individuals and to protect fundamental rights. Internal laws may be influenced by international law, and international law may become part of domestic law. The role of International Criminal Law contains a number of general principles that form the foundations and conditions for holding individuals criminally responsible for crimes under international law like genocide war crimes, crimes against humanity, and the crime of aggression, and other crimes against the peace and security of mankind. However, there are still a number of flaws like international terrorism, religion, environment, and new patterns of war and peace that are causing international relations to deteriorate so there is a need for proper implementation of the same.

References

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