Tuesday, May 29, 2012

A Rose by Any Other Name: International Crimes or Crimes Against ...

No matter what anyone may say, the names we give to concepts matter a great deal. They have an impact on the way we think about them. For example, in domestic American politics there is an ongoing debate over the value of the recent medical insurance overhaul. Those in favor of the modifications call it the ?Affordable Care Act?, while those who are against the changes call it ?Obama-care?. Both names apply to the exact same identical thing, but one brings forth a personal platform while the other implies a certain usefulness or characteristic. The name international law likewise has traditionally affected the way scholars and judges thought about the discipline. The name itself, ?inter-national?, implies that its rules apply to and among nations, or in modern terms, States.[1]

A terminology that started as a description of this branch of law has become its definition. This contributed to the assertion that ?inter-national? law does not apply or recognize, inter alia, individuals as subjects of the law.[2] While the exclusion of the individual as a subject of international law is still asserted by some, it is now commonly accepted that the individual is a subject of international law as the beneficiary of rights and assignments of duties in human rights law and international criminal law.[3] This has lead some to suggest that international law has evolved into something more akin to a global law.[4] My scope is much more modest in that I will focus on only one branch of international law. I would like to suggest that the time has come to reevaluate the name given to what we currently call ?international criminal law?. The basis for this reevaluation is two fold: (1) the name no longer reflects (if it ever truly did) the nature of the subject matter and (2) many national legal orders do not identify internationals crimes as ?international?, but rather have more nuanced names for the discipline. I will conclude by suggesting more accurate names to describe this discipline.

The first reason to discard the moniker of international criminal law relates to what the term itself means. As mentioned, the word ?inter-national? implies that the behavior or relationships to be regulated by this body of law occur between States. Criminal law, of course, references a body of law creating and punishing crimes. It is axiomatic that State crimes do not currently exist in modern international law. The International Law Commission?s Articles on State Responsibility do not include such a category of international violations even though such terminology was used in earlier drafts.[5] At the same time, international criminal tribunals do not have jurisdiction over States for the crimes within their jurisdiction even when those acts are attributable to a State.[6] The crimes themselves also do not envisage a State as the victim, but rather individuals or collectives of individuals.[7] Nothing about the perpetrator or the victim then is directly ?inter-national?.

The origin of international crimes, however, helps explain the terminology currently used in diplomatic and academic discourse. The first modern international criminal prosecutions took place at the end of the Second World War and were based primarily on violations of treaties.[8] Treaties, by definition, are ?inter-national? agreements.[9] The crimes were therefore acts in violation of ?inter-national? law. Additionally, the crimes were perpetrated in the context of a conflict between States and by individuals associated with one of the parties to that conflict and in furtherance thereof.[10] Neither of these conditions still holds in regards to modern international criminal law.

It is generally accepted that the laws of armed conflict criminalizing, inter alia, the mistreatment of protected persons, apply equally during ?inter-national? armed conflicts, intra-national armed conflicts and conflicts between two non-State groups within and between several States.[11] Under the last scenario, a conflict between two or more non-State groups, the consent of treaty law of a particular State is less relevant. Neither group necessarily has agreed to be bound by the laws of war. Consent however is not required because customary law criminalizes the behavior anyway. What we have under these conditions is a body of law that directly governs the acts of individuals working on behalf of non-State entities regardless of the consent or any specific State.

Outside of the arena of war crimes, it is also generally accepted that there is no need for State involvement for the commission of ?crimes against humanity?, an autonomous branch of international criminal law.[12] Groups that are unaffiliated with a particular State can set the widespread or systematic attack against a civilian population in motion that is necessary for their commission. Private individuals without the involvement of a State, likewise, can commit genocide.[13] These crimes therefore do not carry any link with States, let alone a connection to acts between States, to require the moniker of ?inter-national?.

As this brief description shows, the term ?inter-national? does not reflect the nature of the crimes under consideration. They do not necessarily relate to actions between States, but rather to certain acts that for one reason or another have been criminalized by the international community at the supranational level.

The second reason that reevaluating the name of ?international criminal law? is that the crimes normally associated with this name are often referred to under different names in national legal systems. I will list just a few here for the purpose of illustration. Cape Verde criminalized ?inter-national? crimes in a section of its penal code called ?Crimes Against the International Community?; Estonia refers to these crimes as ?Offenses Against Humanity and International Security?; France refers to them as ?Crimes Against Humanity and Against Persons?; Georgia calls them ?Crimes Against Humanity?; Guatemala calls them ?Crimes of International Transcendence?; and some former Soviet States refer to the crimes as ?Crimes Against Peace and Safety of Mankind?. There is little if any continuity between these terms and even less with the idea of ?inter-national? crimes.

The lack of any meaningful connection to the term ?inter-national? and the diversified practice of naming the same discipline within national legal systems both suggest that the name ?international criminal law? is on its way to being an anachronism if it is not already. There still remains the question of what the discipline should be called. One option would be to use the classic Latin phrase crimes hostis humani generis. Another option would be to invent a new term such as ?crimes against global order? or ?crimes of universal concern?. The better choice would be to adapt the term ?Crimes Against Humanity? to describe the entire field of law instead of a single subset of crimes. This has already been done implicitly by some of the national systems listed above. The sub-branch of the field now referred to as crimes against humanity can be referred to as ?human rights crimes? thereby further casting light on its relationship both to human rights law and its separation from war crimes and humanitarian law.[14] This kind of renaming scheme would better reflect the content of the law and its modern context.

[1] The word ?international? is an adjective defined as meaning ?existing, occurring, or carried on between two or more nations.? Nation in turn is defined as ?a large aggregate of people united by common descent, history, culture, or language, inhabiting a particular country or territory.? However, this second word in this context is best understood as the State, the modern version of which (at least in the European sense) is the Nation-state. A classic definition of international law is offered in Nuovo Diritto Internazionale Pubblico by Pasquale Fiore in 1888, at p. 20 as that which ?regulates and directs the relations of and between nations?.

[2] L. Oppenheim, International Law (2nd Ed), p. 107 (1911).

[3] See, Malcolm Shaw, International Law (6th ed), p. 45 (2008).

[4] Giuliana Ziccardi Capaldo, Diritto Globale (2010).

[5] Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), A/56/10, pp. 81-83 (?From the first it was recognized that these developments had implications for the

[6] See, inter alia, Articles 1, 25, Rome Statute of the International Criminal Court.

[7] See, Articles 6-8, Rome Statute of the International Criminal Court. There is the possible exception of the Crime of Aggression, however, no court currently can exercise jurisdiction over that crime.

[8] See, Article 6, IMT Charter; IMT Judgment (?To assert that it is unjust to punish those who in defiance of treaties [?] attacked neighbouring (sic) States [?] is obviously untrue [?]. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all International Law when in complete deliberation they carried out their designs of invasion and aggression.?)

[9] Article 2, Vienna Convention on the Law of Treaties, 115 U.N.T.S. 331.

[10] Article 6, IMT Charter.

[11] See, Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, ?? 11-12 (13 February 1995).

[12] Prosecutor v. Ruto, Kosgey & Sang, ICC-01/09-01/11, ? 184 (23 January 2012).

[13] Prosecutor v. Jelisi?, IT-95-10-T, ? 100 (14 December 1999).

[14] I have made this argument at greater length in an article in the New England Journal of International and Comparative Law, vol. 18.1 (2012).

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