Codification of international criminal law.

• Author: Bassiouni, M. Cherif

1. ROOTS AND BASES OF INTERNATIONAL CODIFICATION

   The history of the human civilization appears to have started more than six million years ago while homo sapiens, from which we humans descended, first evolved in East Africa about 2.5 million years ago. (1) Throughout this process of evolution and development, homo sapiens and other early human species left traces of their existence and development in many locations around the world. (2) Archeologists undoubtedly found scattered evidence, mostly in epigraphy in caves, disclosing the existence of rules of conduct that would later on be called laws and methods of addressing those who violate them. In time, we have come to refer to these laws and methods as a legal system. (3) Surprisingly, throughout this long historical course, legal history did not record significant progress in legal codification.

   The first such accomplishment is the Code of Hammurabi in 1772 BCE, (4) followed by what is referred to as the Ten Commandments brought down by Moses from Mr. Sinai and later recorded in the Tanakh and the Old Testament. (5) These and other historical sources and narratives indicate an emerging commonality of human and social values. (6) Certainly as time has passed and globalization has become a binding social and socio-psychological factor to the ever-evolving human society, increased commonality of shared human and social values, have emerged in different aspects of domestic law and gradually in what we have also called international law. (7) This process is evident in the history and evolution of the jus in bello and subsequently in the jus ad helium. (8) Both of these subjects have in time become part of international criminal law as the jus ad bellum became known as the prohibition of aggression and the jus in bello as the law of armed conflict reflected in war crimes. (9)

   Even though many legal systems have followed some type of codification approach, mostly as derived from Roman law, (10) international criminal law has emerged in a very haphazard and ad hoc manner. With the exception of piracy, which emerged from customary international law, (11) all other international crimes have been established by international conventions. A survey made by this writer reveals that 281 conventions have been passed between 1815 and 2005 (12) that address a number of categories of international crimes which this author has also identified and ranked as follows: (13)

   (1) Aggression;

   (2) Genocide;

   (3) Crimes against humanity;

   (4) War crimes;

   (5) Apartheid;

   (6) Enforced disappearance and extra-judicial execution;

   (7) Slavery, slave-related practices and the trafficking of human beings;

   (8) Torture and other forms of cruel, inhuman or degrading treatment;

   (9) Unlawful human experimentation;

   (10) Unlawful manufacturing, identification, possession, use, emplacement, stockpiling and trade of weapons, including nuclear weapons;

   (11) Nuclear terrorism;

   (12) Mercenarism;

   (13) Aircraft hijacking and unlawful acts against international air safety;

   (14) Piracy and unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas and continental shelf;

   (15) Taking of civilian hostages;

   (16) Threat and use of force against internationally protected persons and United Nations Personnel;

   (17) Use of explosives;

   (18) Cybercrime;

   (19) Financing of terrorism;

   (20) Unlawful traffic in drugs and related drug offenses;

   (21) Organized crime and related specific crimes;

   (22) Illicit trade or trafficking in goods;

   (23) Destruction and/or theft of national treasures;

   (24) Unlawful acts against certain internationally protected elements of the environment;

   (25) Unlawful use of the mail;

   (26) Unlawful interference with submarine cables;

   (27) Falsification and counterfeiting; and.

   (28) Corruption and bribery of foreign public officials.

   These crimes and their respective rankings are based on the existence of ten penal characteristics in any given international convention. (14) These characteristics are predicated on the social interests sought to be protected and the social harm sought to be prevented. Curiously, all ten of these characteristics are not contained in all 281 conventions, and there is no explanation for this selective diversity in the inclusion of these penal characteristics. There has never been any explanation for the disparity of inclusion of these ten penal characteristics in conventions that proscribe certain forms of what the international community recognizes as constituting international crimes. The disparity in inclusion of the ten penal characteristics in all the 281 international criminal conventions is particularly perplexing because it makes no sense, for example to have some but not others of the ten penal characteristics in the nineteen conventions addressing different forms and manifestations of terror-violence. (15) But then, it is equally perplexing to have the international community reject having a comprehensive anti-terrorism convention (16) and instead have multiple overlapping conventions with different parties. That this haphazard legislative approach has been followed for almost a century, while almost every criminal law system in the world has followed a certain technical and legislative policy on the compilation of different categories of crimes, is difficult to explain other than the hidden intentionality of states to create such a haphazard system for political purposes. (17)

   Realpolitik is the only explanation for why efforts at the codification of international criminal law, which was undertaken shortly after WWII beginning in 1947, had failed so miserably by 1996. (18) After half a century, the Draft Code of Crimes Against the Peace and Security of Mankind, containing thirteen articles in 1954 (19) was reduced only to five crimes: aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel, and war crimes in 1996. (20) Even so, the draft containing these five crimes was never even put to a General Assembly vote. (21)

   It could be said that there has been some limited form of codification of international criminal law in the statutes of international criminal courts established since 1954. This includes the Rome Statute for the International Criminal Court, (22) the statutes of the two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (23) and the International Criminal Tribunal for Rwanda (24) established by the Security Council and the six mixed model tribunals in Cambodia, (25) Sierra Leone, (26) East Timor, (27) Kosovo, (28) Bosnia and Herzegovina, (29) and Lebanon. (30) But it must be noted, that the two tribunals established by the Security Council were ad hoc and that at best, one can consider the definition of crimes contained in their respective statutes as a reflection of customary international law and not as a codification of international criminal law. As to the statutes of the six mixed model tribunals, they are indeed ad hoc institutions created by bilateral agreements between the United Nations and the respective governments and they can hardly be said to reflect customary international law, let alone be deemed an exercise in international criminal codification. This only leaves the Rome Statute whose state-parties are, as of 2016, 124 states out of 193 member-states of the United Nations. (31)

   Why there has never been a codification of international crimes, which could be divided by subject matter or on any other science or technological basis that would suit a codification undertaking is something that defies legal logic. But it does fit very neatly into a realpolitik logic of preventing clarity as a way of reducing enforcement capabilities in order to maximize the opportunities for states to advance their power and wealth interests. This is particularly evident in the new categories of international crimes that deal with illicit trade (which includes everything from trafficking in persons to trafficking Hermes ties, for no clear reason). (32) This brief historical background may explain why the codification efforts of international criminal law have failed so far, as described in the section below.

2. THE CODIFICATION PROCESSES

   As described below, the central codification process was within the United Nations and officially proceeded from 1947 to 2010 when it came to its end at Kampala. (33) During that period of time, the United Nations split the process of codification into different mandates given to different United Nations mechanisms with the obvious purposes of delaying and hampering the process through bureaucratic means, which ultimately succeeded in wearing out the international community's interest in the subject. (34) The new use of the old Machiavellian (35) technique became bureaucratic and that technique, as well as its attendant allocation financial and personnel resources became the way of controlling international criminal justice. (36) It was the aftermath of WWII that led to the United Nations' efforts to codify international criminal law, and parallel efforts by individual scholars and certain specialized NGOs. (37)

   In 1946, the United Nations General Assembly established a committee on international law and its codification (38) and mandated the new committee to "treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal." (39) The following year, 1947, after examining the report of the new committee the General Assembly decided to establish the International Law Commission (ILC) (40) and requested that it "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal" and to prepare a...