The Architecture of International Criminal Law

• Pages: 301-324
• Author: Beth Van Schaack,Ronald C. Slye

301

Chapter 11

THE ARCHITECTURE OF

INTERNATIONAL CRIMINAL LAW

The preceding materials have discussed the range of

jurisdictional theories and sources of law that undergird the field of

international criminal law (ICL). The norms in question—including

prohibitions on genocide, crimes against humanity, war crimes,

terrorism, torture, and (to a lesser extent) the crime of aggression—

can be litigated in a range of fora: international, regional, and

domestic. In addition to giving rise to criminal charges, ordinarily

advanced by public authorities, these norms can also animate civil

claims by victims and survivors against responsible individuals, legal

entities, and sovereigns.

This chapter considers the global architecture of international

justice as a whole and the various options for the enforcement of ICL

norms with reference to the matrix of accountability set forth below.

This matrix is organized along two axes: the first ( x) is premised on

the type of tribunal (international, hybrid, regional, or domestic); the

second (y) lists the type of defendant/respondent (natural persons,

sovereign states, and legal entities) that might be held accountable

for atrocities. The pale gray rows in the matrix indicate criminal

liability options; the white rows set forth civil liability options.

Exemplary legal authorities and cases appear in the various cells.

Common law systems tend to keep criminal and civil liability

processes relatively separate from each other; by contrast, civil law

systems may allow victims to initiate criminal processes or advance

civil claims alongside criminal charges brought by the state. In this

regard, the color coding in the matrix below is somewhat artificial.

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INTERSECTIONS

Pt. II

Type of Tribunal

International

Hybrid/Regional

Domestic

Type of Respondent/Defendant

Individual Perpetrators

International

Criminal

Court, ad hoc

tribunals

Special Court for

Sierra Leone,

Extraordinary

African Chambers,

proposed African

Court of Justice

and Human

Rights (when the

Sharm El Sheikh

and Malabo

Protocols enter

into force), future

ECOWAS-Gambia

court

Domestic international

crimes statutes (e.g.,

18 U.S.C. § 2340,

German Code of

Crimes Against

International Law

(CCAIL))

Ø civil claims

by plaintiffs

allowed,

reparations

only

Ø civil claims,

reparations only

Statutes allowing for

civil claims (e.g., the

U.S. Alien Tort Statute

& Torture Victim

Protection Act)

The Sovereign State

Ø

Ø

Ø

International

Court of

Justice, human

rights treaty

bodies (e.g.,

Committee

against

Torture)

African Court on

Human & People’s

Rights, European

Court of Human

Rights

U.S. Foreign Sovereign

Immunities Act or

equivalent (e.g., Colvin

v. Syria)

Legal Entities

Ø

STL (contempt

only);

Proposed African

Court of Justice

and Human

Rights

Statutes allowing for

criminal claims

against corporate

entities (e.g. LaFarge

prosecution in France)

Ø

Ø

Statutes allowing for

civil claims against

corporate entities (e.g.,

Doe v. Cisco)

Criminal liability

Civil Liability