The Internationalization of Crimes

• Pages: 111-133
• Author: Beth Van Schaack,Ronald C. Slye

111

Chapter 4

THE INTERNATIONALIZATION

OF CRIMES

This chapter is concerned with the question of how violent

conduct becomes prosecutable as an international crime, subject to

international or extraterritorial jurisdiction. As you will see when

you start looking more closely at substantive international criminal

law (ICL), many international crimes actually encompass a

constellation of individual criminal acts. Some of these predicate

crimes are unique to ICL or international humanitarian law (IHL),

such as the crime of perfidy—killing or wounding someone

treacherously by making the victim believe the perpetrator is

entitled to protected status under the laws of war (e.g., by feigning

surrender).

1

Other predicate crimes have domestic law analogs in the

familiar offenses of assault, mayhem, rape, and murder. These

domestic crimes are considered international crimes when certain

attendant circumstances are present. As a matter of definitional

structure, these attendant circumstances usually appear in the

chapeau

2

of the crime’s formulation.

A major challenge to developing and codifying the field of ICL

has been to identify which attendant circumstances fully distinguish

international crimes from domestic ones. For example, what

attributes make an act of murder a crime against humanity, a war

crime, or the crime of genocide? A clear demarcation of which crimes

fall within international jurisdiction is important, not only for

academic or doctrinal reasons. For one, the complete collapse of the

distinction between international and domestic crimes would be

worrisome to states. It would occasion the ceding of a high degree of

jurisdictional sovereignty, as international crimes are often subject

to international and extraterritorial jurisdiction. If every act of

murder could be prosecuted anywhere in the world under expansive

jurisdictional bases, a certain degree of juridical chaos might result.

These concerns could result in the withdrawal of support for, and

1

See Rule 65, ICRC Customary International Law Database. The ICC’s

Elements of Crimes defines perfidy in keeping with Additional Protocol I to the Geneva

Conventions as: “acts inviting the confidence o f an adversary to lead him to believe

that he is entitled to, or obliged to accord, protection under the rules of international

law applicable in armed conflict, with intent to betray that confidence.” See Article

8(2)(e)(ix), War crime of treacherously killing or wounding, ICC Elements of Crimes,

Resolution RC/11 (June 10, 2010).

2

Chapeau elements are circumstantial or contextual elements that apply

uniformly to a subsequent list of prohibited acts. The phrase comes from the French

word for “hat,” as the contextual elements are usually found at the top of the definition

of an international crime.

112

THE DISCIPLINE OF INTERNATIONAL

CRIMINAL LAW

Pt. I

consent to, the regime of ICL, which would be a major reversal of

global policy trends. The distinction between international and

ordinary crimes also carries certain expressive implications—calling

the imprisonment of an individual the crime against humanity of

unlawful detention carries greater stigma than a mere kidnapping or

false imprisonment allegation. Preserving a notion of international

crimes protects them from the semantic inflation that might result if

every abhorrent act were designated an international crime.

Notwithstanding the importance of retaining a distinction between

international and domestic crimes, no grand analytic theory exists.

Instead, several different approaches are apparent in distinguishing

these two bodies of penal law, as discussed in the remainder of this

chapter. Keep these ideal types in mind as you study the definitions

of the various substantive crimes.

A. The Jurisdictional Approach

A primary, and facile, explanation for differentiating between

international and domestic crimes is jurisdictional: International

crimes are those crimes that can be (and often are) prosecuted before

international tribunals or in domestic courts pursuant to

extraordinary jurisdictional bases. There is no doubt that the

distinction between international crimes and “ordinary” crimes has

jurisdictional implications. For example, when an act rises to the

level of an international crime, it may be prosecutable before an

international tribunal if one exists with jurisdiction over the

underlying circumstances. Additionally, such an act may be subject

to certain extraordinary forms of extraterritorial jurisdiction by

states with no tangible nexus to the crime with respect to the

nationality of the perpetrator or victim or the place of commission.

The authorization to exercise international or extraterritorial

jurisdiction may be a function of customary international law or a

treaty obligation. This jurisdictional explanation, however, raises a

chicken-and-egg problem: Are international crimes dubbed

international because they can be, or are, prosecuted before

international tribunals, or are these crimes prosecuted before

international tribunals because they are international crimes? Given

this tautology, this jurisdictional theory does not provide an

independent justification for the exercise of jurisdiction over a

suspect (including the power to restrain their liberty) by an

international tribunal or a state with no nexus to the crime.

B. The Inter-National Approach

The second approach we call the “inter-national” approach. Put

simply, this approach defines as “international” those crimes that

transcend national boundaries and thus involve the interests of more

than one state. Implicit in this approach is the recognition that the