The Making of International Criminal Law

• Pages: 81-110
• Author: Beth Van Schaack,Ronald C. Slye

81

Chapter 3

THE MAKING OF INTERNATIONAL

CRIMINAL LAW

Fundamental to any legal system are processes, doctrines, and

conventions concerning the development and identification of the

applicable substantive rules—these rules of recognition are known

as “secondary rules.”

1

How law is created, and where one looks to

determine the applicable rules, is particularly important in a system

of law that imposes criminal penalties on individuals. The criminal

law may result in the deprivation of an individual’s fundamental

right to liberty through incarceration, and—in some domestic

jurisdictions—the ultimate penalty of capital punishment. Nullum

crimen sine lege (NCSL), a fundamental principle of justice that

applies to all criminal law systems, requires that the penal law be

clear and easily ascertained, and thus provide adequate notice to

individuals that certain conduct may result in criminal liability. This

enables all of us to conform our behavior to the law, if we are so

inclined. Given its centrality to the field, we discuss the uneasy

relationship between international criminal law (ICL) and NCSL in

its own chapter.

There is a core set of meta rules concerning sources of public

international law over which there is little controversy. These rules

derive from the definitive articulation of the primary sources of

public international law found in Article 38 of the Statute of the

International Court of Justice (ICJ).

2

Article 38 lists treaties,

customary international law (CIL), and general principles of law as

co-equal primary sources of international law, and judicial decisions

and the writings of publicists as subsidiary sources. This article

operates very much like a “choice of law” provision for the ICJ. To

this canon of binding rules must be added resolutions from the U.N.

Security Council under Chapter VII of the U.N. Charter, which are

binding on all member states.

3

Indeed, the statutes of the

International Criminal Tribunals for the former Yugoslavia and

Rwanda were both appended to Security Council resolutions.

4

In

addition, following the attacks of September 11, 2001, the Council

1

H.L.A. HART, THE CONCEPT OF LAW (3d. ed. 2012).

2

Statute of the International Court of Justice, April 18, 1946, 33 U.N.T.S.

993, 59 Stat 1055.

3

U.N. Charter art. 103, Oct. 24, 1945, 1 U.N.T.S. XVI (“In the event of a

conflict between the obligations of the Members of the United Nations under the

present Charter and their obligations under any other international agreement, their

obligations under the present Charter shall prevail.”).

4

See e.g., S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).

82

THE DISCIPLINE OF INTERNATIONAL

CRIMINAL LAW

Pt. I

has required all states to ratify the suite of terrorism treaties and

amend their domestic legal frameworks to enable domestic terrorism

prosecutions.

5

Although many ICL tribunals have relied upon Article 38 for the

standard recitation of international law sources, in other contexts,

separate rules with respect to sources of law have been established

for particular ICL tribunals. For example, Article 21 of the Rome

Treaty creating the International Criminal Court (ICC) sets forth a

hierarchical set of sources of law applicable to the ICC that deviates

from Article 38 by, among other things, de-emphasizing general

principles of law and leaving the application of CIL somewhat

ambiguous. This may reflect the fact that these traditional,

uncodified sources of public international law sit uncomfortably in a

system of penal law. Given the grave consequences of criminal

liability, concerns over the rights of criminal defendants are raised

when there is significant uncertainty about the applicable law or

when the applicable law is not easily ascertainable. Source-of-law

doctrines that are relatively uncontroversial in the context of most

fields of public international law may thus evince more controversy

in the criminal context. Codified rules, such as those found in

treaties, are the least troubling; rules that derive from CIL, and thus

arise out of a history of state practice undertaken out of a sense of

legal obligation, or from general principles of law are more

susceptible to uncertainty and raise special concerns with respect to

ICL. As is true in all areas of international law, treaties and custom

may address the same subject matter, leading to questions about

which rule should prevail in the event of discrepancies.

6

At the same time, a recurring tension arises in ICL between the

requirement that the law be certain and explicit, as embodied in the

NCSL imperative, and the concern that the more specificity and

detail we include in the definition of a crime, the more likely we are

to provide those responsible for some of the worst atrocities known to

humankind with a technical defense to avoid criminal liability. This

dilemma was evident at the birth of the modern ICL regime in the

post-World War II period, when individuals were prosecuted for the

novel offenses of crimes against humanity and against the peace at

Nuremberg and Tokyo. A strict application of the principle of NCSL

to these offenses at Nuremberg would have limited the ability of the

Allies to hold the Nazi high command accountable for aggressive war

and most of the crimes of the Holocaust.

5

S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

6

Military and Paramilitary Activities in and against Nicaragua (Nicar. v.

USA) (Merits), 1986 I.C.J. Rep. 14, ¶¶ 175–79 (June 27).