International Crimes

Author: Taxiarchis Fiskatoris

Required knowledge: International Criminal Law, Law of Armed Conflict

Learning objectives:

• to understand the foundations and purpose of international criminal justice
• to identify the most prominent international crimes
• to recognize the content of international crimes and its dynamic evolution in time;
• to apply the elements of international crimes to practical situations

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A. Introduction

A conceptual definition of international crimes does not exist in conventional or customary international law. The constitutive instruments of international or internationalised courts and tribunals enumerate their subject-matter jurisdiction without explicitly labelling the punishable offences as international crimes. The jurisdictional remit of such institutions cannot be considered a substitute for a comprehensive international criminal code, which does not exist. The Preamble to the Rome Statute implies that the ICC’s jurisdiction does not cover all “international crimes”. Scholars usually distinguish between “international crimes lato sensu (in the broad sense)”, and “international crimes stricto sensu (in the narrow sense)” or “core crimes”. According to the mainstream literature, the latter coincide to a great extent with the Rome Statute crimes.

B. Rome Statute crimes

The ICC Statute qualifies the offences within its jurisdiction as “the most serious crimes of concern to the international community as a whole”. Article 5 vests the ICC with jurisdiction over four categories of offences, which are analysed in more details in the ICC Elements of Crimes document. All Rome Statute crimes´ definitions have a similar structure, which consists of an exhaustive or indicative catalogue of individual underlying offences, and an introductory sentence about their contextual elements, also known with the French word "chapeau" (meaning "hat"). The underlying offences may overlap, but the contextual elements distinguish the crimes from one another, as well as from other international and ordinary crimes. Thus, a murder is an ordinary crime, which can take the form of a war crime, a crime against humanity or genocide, depending on what contextual elements are fulfilled. Additionally, according to Article 30, “unless otherwise provided”, the mental element of “intent and knowledge” applies to all offences within the ICC’s ambit. A legal analysis of the crimes that follows their historical evolution is deemed here the most appropriate, inasmuch as it highlights that their concept and content is not static but dynamic.

I. War crimes

i. The nature of war crimes

War crimes is the oldest category among the four Rome Statute crimes. Individual accountability for war crimes has its origins in the process of progressive criminalisation of customary and conventional rules of the law of armed conflict.. War crimes generally pertain to the use of prohibited weapons and methods of warfare, and to attacks on protected persons or property.

ii. The underlying offences

All World War I peace treaties contained a clause regarding the prosecution of “persons accused of having committed violations of the laws and customs of war”. The Charter of the Nuremberg Military Tribunal provided a non-exhaustive catalogue. The exact list was reiterated in Article II(1)(b) of the Control Council Act No.10, which served as the legal basis for the post-war military tribunals of the occupying powers in Germany as well as in Principle VI of the so-called Nuremberg Principles, as formulated by the International Law Commission (ILC) in 1950.

In its 1951 “Draft Code of Offences against the Peace and Security of Mankind”, the ILC commented that war crimes were relevant not only in cases of declared war, but also in “any other armed conflict which may arise between two or more States, even if the existence of a state of war is recognized by none of them”. In 1968, a UN Convention provided that war crimes are not subjected to statutory limitations, and made a special mention to their relation with the “grave breaches” regime of the 1949 Geneva Conventions. The content of war crimes has continued being elaborated by the ILC in its review of the Draft Code, and in the Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). All of them confirmed that “grave breaches” of the Geneva Conventions give rise to individual criminal accountability. However, not every violation of the Geneva Conventions amounts to a war crime.

The ICTY had explicit jurisdiction over a restrictive list of “grave breaches of the Geneva Conventions of 1949” (art 2), and an illustrative catalogue of “violations of the laws or customs of war”, which followed key provisions of the 1899/1907 Hague Conventions (art.3). The ICTR’s jurisdiction over war crimes was different, given the predominantly internal nature of the Rwandan conflict. Its Statute referred to violations of common article 3 of the Geneva Conventions, and to the 1977 Additional Protocol II (AP II).

War crimes have also been incorporated into Article 8 (2) of the ICC Statute.

Example for a Rome Statute war crime: A prominent example of a new addition is a twin clause, applying in both international and non-international conflicts, addressing the war crime of “conscripting or enlisting children under the age of fifteen years” into armed forces or groups, “or using them to participate actively in hostilities”.

Advanced: Child Soldiers

The norm has its origins in the 1977 Additional Protocols to the Geneva Conventions. According to the Special Tribunal for Sierra Leone, it had already formed part of customary international law before the adoption of the Rome Statute. The selection of the words “conscripting or enlisting” was meant to cover both voluntary and coerced recruitment. The last words of the clause indicate that allowing young children to actively engage in activities closely related to the hostilities in combat or non-combat roles (e.g. by acting as decoys or human shields, finding or carrying food or ammunition for the fighting faction etc.) is equally a war crime.

The enumeration of war crimes in the context of non-international armed conflicts is modest in comparison to that of war crimes in international armed conflicts. By way of illustration, the war crime of “intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment…” can only be prosecuted by the ICC if linked to an international, and not an internal conflict. Through the amendment procedure of the Rome Statute, the number of punishable war crimes committed in non-international armed conflicts incrementally converges with that of war crimes perpetrated in international conflicts.

iii. The contextual elements

The jurisprudence of the ad hoc Tribunals further shed light on the contours of war crimes. In its first case, the ICTY clarified that the prerequisite for war crimes, the existence of an “armed conflict”, was fulfilled whenever “there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”. That meant, essentially, that war crimes can be committed in both international and internal armed conflicts. A mere resort to force, such as in occasions of riots, does not meet the required level of intensity of “protracted armed violence”, and thus criminal conduct in such contexts does not constitute war crimes.

It should be highlighted that, even in the event of an armed conflict, not every offence is necessarily a war crime. The perpetrator’s ability or decision to commit the offence, the purpose for which it was committed, or the manner in which it was committed must be substantially linked to the conflict. This does not mean that the perpetrators of war crimes cannot be civilians.

Article 8(1) of the ICC Statute stipulates that “the Court shall have jurisdiction in respect of war crimes, in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. This intends to assist the ICC to assess the gravity of war crimes occurrences, but does not establish an additional contextual element. An isolated act may still theoretically amount to war crime. Each underlying war crime may have a higher mental element threshold. For instance, the accidental destruction of historic monuments may not qualify as a war crime, but “intentionally directing attacks” against them, provided they are not used for military purposes, most probably will.

II. Crimes against humanity

i. The nature of crimes against humanity

The essential characteristic of crimes against humanity (CAH) is that humanity rather than the individual is their ultimate victim. Some CAH overlap with genocide and war crimes. They differ, though, from genocide because they lack the mental element of special intent to destroy a group, and from war crimes because they apply equally in wartime and peacetime.

Advanced: The origins of crimes against humanity

Early versions of the notion have existed at least since the eighteenth century. In the nineteenth century, it was often employed to stigmatise slavery, the slave trade and colonialism. In 1915, France, Russia, and Great Britain warned the Ottoman Empire that they would hold individually accountable Turkish leaders implicated in “crimes against civilisation and humanity". Indeed, after the end of the Great War, the Treaty of Sevres incorporated the idea, although without using the term. The distinguishing feature of those crimes, in comparison to war crimes, was that they were intended to cover massacres of the Ottoman Empire against its own citizens, and not the enemy, by reason of their non-Ottoman ethnicity. However, the nexus of such crimes with “the state of war” was peremptory.

ii. The underlying offences

The first codification, and successful prosecution of CAH occurred in Nuremberg. Article 6(c) of the IMT Charter provided an enumerative definition. Its primary rationale was the punishment of German officials responsible for atrocities against, and persecutions and deportations of German citizens of Jewish, Roma or Sinti descent. In that respect, the term engulfed what would soon become the crime of genocide.

The ICTY and ICTR Statutes expunged persecution on cultural grounds, but it could be argued that they rendered the CAH concept open-ended by appending “other inhumane acts”, which arguably is a broad term. Furthermore, both Statutes incorporated from the Draft Code the underlying offence of “torture”, and added on “rape”. Article 7 of the Rome Statute has an even longer list. It considerably expanded the crime of persecution to “any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender… or other grounds…”. Moreover, it associated with rape “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”.

Enforced disappearance of persons, and the crime of apartheid were also included. However, “other inhumane acts” were restricted to “acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. This did not stray far, though, from the jurisprudence of the ad hoc Tribunals.

Example for an "other inhumane act": Forced marriage has been prosecuted by the Special Court for Sierra Leone and the ICC as falling into this category.

Advanced: Apartheid as a crime against humanity

The 1967 UN Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, as well as the 1973 Apartheid Convention, and a remarkable number of General Assembly Resolutions, explicitly declared apartheid a CAH. This was clearly possible due to the systemic change of decolonisation. States from Global South demonstrated a particular interest in the international criminalisation of colonialism-related offences. Nonetheless, States from the Global South had to fight until the very last moment of the Rome Conference in order to achieve the inclusion of apartheid as an underlying CAH.

iii. The dynamic evolution of the contextual element

In Nuremberg, the notion had to be linked with war crimes or crimes against peace. The stated reason was alignment with the principle of legality, given that, unlike war crimes, CAH did not exist as a criminal offence at the time they were committed. An additional pragmatic reason was that the victors of the Second World War wanted to dodge any allusions to their own colonial or deportation practices.

However, Control Council Law No 10 released the subsequent military tribunals in Germany from the obligation to establish a connection with other crimes under their jurisdiction, and broadened the scope of the concept. The Nuremberg Principles reinstated the mandatory link with war crimes and crimes against peace, which was dropped again by the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind. The latter also detached the concept of genocide, which had already been recognised as an independent crime, thus being able to add persecution on cultural grounds to the CAH concept. The new condition was that CAH had to have been committed, instigated, or tolerated by State authorities. In 1968, a UN Convention established that statutory limitations do not apply to CAH “whether committed in time of war or in time of peace”.

In 1991, the ILC, reviewing the Draft Code, deemed it proper to rename this category of international crimes “systematic or mass violations of human rights”. It thus laid emphasis on a different distinctive criterion; the systematic and mass-scale nature of the crimes, which expressed their seriousness. The conflict nexus returned in the ICTY Statute due to the special nature of the Tribunal. However, the Tribunal itself found that such a nexus had become extinct in customary international law. Besides, the ICTR preferred the contextual element of “a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. The ICTY held, though, that discriminatory intent is only necessary for the sub-category of persecutions. Accordingly, the Rome Statute did not adopt either conflict nexus as a contextual element, nor discriminatory intent as the general mental element for all CAH.

The contextual element of CAH in the Rome Statute is different from previous Statutes. They must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Article 7(2) further specifies that the “attack” must be “pursuant to or in furtherance of a state or organizational policy to commit such attack”. According to the Elements of Crimes, “attack” is not necessarily military, but understood as “involving the multiple commission” of an underlying offence. The “policy… requires that the state or organization actively promote or encourage such an attack”.

The proper interpretation of the contextual element has long been troubling judges and scholars. The phrase “any civilian population” excludes isolated acts, but does not mean that the target of the attack must be the entire population of a State or territory. The national, ethnical, racial etc. identity of the population is immaterial, and the perpetrator may share the same nationality with the victims. The victims must be civilians, but the presence of some combatants does not deprive the population of its civilian character.

The wording “widespread or systematic” is disjunctive, and the contextual element is met by the existence of either of the two. “Widespread” is usually interpreted as large scale conduct directed against many victims. “Systematic” points to an organised repetitive pattern, and excludes accidental or random occurrence. The ICC has attempted to set a series of criteria for identifying the policy requirement. The limits of the “organizational” requirement is a matter of contention.

To this date, apart from the Rome Statute, there is not any international convention on crimes against humanity. The ILC has concluded a Draft Treaty, but the General Assembly has not yet convened an international conference. The ICTY declared that CAH are part of customary international law, but there is definitely a number of major objector States.

III. Genocide

i. Origin and definition

Genocide was explicitly recognised in the 1948 Genocide Convention as a “crime under international law” whether committed in time of war or peace. It is a compound word formed by the Greek “genos” (set of people with common ancestry or characteristics) and the Latin “cidium” (killing). The term was coined during the inter-war period by the Polish-Jewish jurist Raphael Lemkin to describe “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves”. The modern legal definition of genocide, formulated for the first time in the Genocide Convention, and verbatim replicated in the Statutes of most international and hybrid courts and tribunals, is both broader and narrower than Lemkin’s proposal. It is broader because it covers more than national groups, and narrower in that it does not address but physical and biological genocide, excluding acts that are often described as “cultural genocide”. “Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide”. In strict legal terms,

“[g]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group”.

ii. The material element (actus reus)

In other words, the material element of genocide may take the form of any one of five alternative prohibited acts, directed against any one of four alternative protected groups. The ICTR has attempted to define the four protected groups based on scientific criteria. However, jurisprudence has progressively accepted that whether one belongs to a protected group does not exclusively depend on objective facts, but also on the subjective perceptions of the victims or the perpetrators. In any case, prohibited acts committed against other groups, such as political, social or gender groups do not fall within the definition.

Causing the death of even one member of a protected group may amount to genocidal conduct, provided, of course, that the mens rea of the offence are also met. Normally, “[t]he conduct [takes] place in the context of a manifest pattern of similar conduct directed against that group”. But genocide is not confined to killing. Echoing the judgment of the first international genocide trial in history, the ICC Elements of Crimes accept that, among others, “torture, rape, sexual violence or inhuman or degrading treatment” may constitute underlying genocidal offences as causing serious bodily or mental harm. The inflicted harm does not need to be “permanent and irremediable”, but must nonetheless create “a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”.

The phrase “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” has been interpreted by the ICTR as referring to “the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction”. Subjecting the group members to excessive work or to the bare minimum means of survival, such as food and water supplies, hygienic conditions, or medical services are characteristic cases in point. The ICC Elements of Crimes provide the additional example of “systematic expulsion from homes”. It is doubted, though, that forcible displacement of populations, also known with the expression “ethnic cleansing”, automatically falls under this category, although it may help establish genocidal intent.

The last two prohibited acts concern the destruction of a group through extinction of its future generations. According to the ICTR, the measures intended to prevent births within the group may be physical, such as sexual mutilation, sterilisation, forced birth control, separation of the sexes, prohibition of marriages, deliberate impregnation by a person belonging to another group so that the born child belongs to that other group. But they may also be mental. Traumatising acts, such as rape, can be a measure intended to prevent births when the person raped refuses subsequently to procreate. The wordings “intended to prevent” and “within a group” suggest that the conduct could still be labelled genocide even if the intended malicious outcome is not achieved or if the birth control does not apply to the whole group.

Transferring children of one group to another can take the form of physical force, such as in the case of forced adoptions outside the original group. But it may equally “include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment”. This last form of genocidal act is the closest the legal definition gets to what is known as “cultural genocide”.

ii. The mental elements (mens rea)

The legal definition of genocide consists of two mental elements. First, the general intent to execute one of the underlying offences of the material element. However, genocide´s real distinctive feature is the second and more stringent mental element of a specific intent (dolus specialis) of the perpetrator to destroy “in whole or in part” a protected group “as such”. The actual destruction of the group is not required. The wording “in part” suggests that even the intention to destroy a small but “substantial part” of the group, not only in the sense of numeric size but also of emblematic prominence, counts as genocide. It is usually “difficult, even impossible” to unequivocally establish genocidal intent, especially when there are other reasonable explanations, although intent must be distinguished from the personal motive. Genocide is the only international crime which expressly covers instances of direct and public incitement, “even where such incitement failed to produce the result expected by the perpetrator”.

IV. The crime of aggression

i. From crimes against peace to the crime of aggression

After the end of the First World War, the Allied Powers envisaged an international special tribunal to hold the German Emperor individually accountable, among others, for violations of the then applicable law on the use of force (jus ad bellum). The Kaiser evaded justice, but “crimes against peace” were officially prosecuted at the Nuremberg and Tokyo Trials, as well as by the post-war military tribunals established on the basis of the Control Council Act No.10.

The early version of the “crime of aggression” referred to

“planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.

The Tokyo Charter added that the offence pertained to both “declared or undeclared” wars.

Crimes against peace formed part of the Nuremberg Principles of the International Law Commission. However, due to the exceptionally political nature of the matter, which interferes with the UN Security Council’s power to determine acts of State aggression or with diplomatic means of dispute resolution, the United Nations were unable to agree upon a definition. A definition of aggression was reached in 1974 with the UN General Assembly’s Resolution 3314(XXIX), but States would still find it unsuitable for the purposes of international criminal law. Hence, despite the inclusion of the crime of aggression in the ICC Statute in 1998, the Court remained unable to exercise jurisdiction over such offences until the Assembly of States Parties to the Statute agreed on a definition, which finally occurred at the 2010 Kampala Review Conference.

ii. Modern definition

Article 8bis of the Rome Statute provides that

“[f]or the purpose of this Statute, ´crime of aggression´ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.

It then follows the line of Resolution 3314(XXIX), defining an “act of aggression” as

“the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations […] regardless of a declaration of war”.

The article concludes with an enumeration of specific aggressive acts.

The ICC’s jurisdiction was officially activated eight years after Kampala, with a more stringent jurisdictional regime than other ICC crimes. Yet, there hasn’t been any prosecution of the crime of aggression since the post-World War II Military Tribunals, which leaves the exact contours of the crime open to future judicial scrutiny. Nonetheless, a few preliminary remarks can already be made. First, the definition of the crime of aggression does not cover every breach of Article 2(4) of the UN Charter, but only the most “manifest violations”. Moreover, aggression is defined as a leadership crime, which renders the prosecution of  aggressive acts by non-State actors improbable, unless they have essentially substituted the State mechanism. By all means, aggressive acts must turn against other States and not the “enemy inside”.

C. Other international crimes

I. General remarks

Depending on the definition of international crimes one adopts, the catalogue of international crimes can be much broader. For instance, Professor M. Cherif Bassiouni, one of the pioneers of modern international criminal law, having studied international conventions with penal characteristics, had compiled a list of no less than twenty-five international crimes in the broad sense.

Most of those offences, which share a transboundary element, are to be found in suppression conventions that establish for States parties a duty to domestically legislate against acts proscribed by the convention, as well as a right or duty to either prosecute or extradite the offenders and to cooperate in prosecution and punishment. A majority of modern scholars prefers to call such offences transnational crimes or treaty crimes.

Piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, drugs and hazardous wastes, illicit exploitation of natural resources, and the crime of unconstitutional change of government appear on the Malabo Protocol, which establishes the subject-matter jurisdiction of a future African Criminal Court.

II. Piracy

Piracy was the first offence over which the principle of universal jurisdiction applied. It is now defined in the UN Convention on the Law of the Sea. It basically consists of

“any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft, and directed on the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft”.

III. Human trafficking

Although “slave-trading counts among the first international crimes”, modern slavery in the form of trafficking in human beings, which is broader than the CAH of enslavement, is still considered a transnational crime. The 2000 UN “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime” obliges States Parties to domestically criminalise “trafficking in persons”, which it defines as

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.

IV. Torture

Torture is an underlying offence of genocide, crimes against humanity, and war crimes. When it does not fulfil the contextual elements of the above offences, it may still be considered a discrete international crime, as proscribed under customary international law and the UN Convention against Torture.

V. Terrorism

The universal recognition of transnational terrorism as an independent international crime has long been on the way, with the lack of a solid definition usually being raised as an issue against. The champion of modern international criminal law, Antonio Cassese, as well as the Special Tribunal for Lebanon at the time of his presidency, have made the controversial argument that

“a customary rule of international law regarding the international crime of terrorism, at least in lime of peace, has indeed emerged. This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.”

VI. Drug trafficking

Several multilateral conventions are dedicated to the suppression of trafficking in narcotic drugs. The Final Act of  the Rome Conference, where the establishment of the ICC was decided, recognizes that “the international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the political and social and economic order in States”, and that a review conference should “consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court”.

VII. Ecocide

The relevance of international criminal law to the protection of the environment has been debated and occasionally put on the UN agenda at least since the 1970s. However, with the exception of the ICC Statute, where widespread, long-term and severe environmental damage is mentioned as an underlying war crime in international armed conflicts, international criminal law remains anthropocentric. In recent years, the recognition of environmental offences as international crimes worthy of prosecution at the international level has gained significant current. The connotative term “ecocide” is used in order to raise awareness. NGOs and eminent legal scholars have attempted to vest ecocide with a definition that could form the basis of consent for its becoming the fifth autonomous Rome Statute crime:

“For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

Summary

• There is not any universally acceptable conceptual definition of international crimes. According to the mainstream literature, the core of the concept consists of the four crimes that can be prosecuted by the International Criminal Court, namely war crimes, crimes against humanity, genocide, and the crime of aggression. The content of these offences has been dynamically evolving mainly through their enumeration in the Statutes of the various international criminal courts and tribunals, as well as through their case law.
• All Rome Statute crimes´ definitions have a similar structure, which consists of an exhaustive or indicative catalogue of individual underlying offences, and an introductory sentence about their contextual elements. The underlying offences may overlap, but the contextual elements distinguish the crimes from one another, as well as from other international and ordinary crimes.

• War crimes generally pertain to the use of prohibited weapons and methods of warfare, and to attacks on protected persons or property taking place during an international or non-international armed conflict.

• Crimes against humanity refer to a catalogue of human rights violations and other inhumane acts, occurring in times of armed conflict or peace, that presumably harm all of humanity when they fulfil the contextual element of having been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

• Genocide means the commission of five alternative prohibited acts, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

• The crime of aggression has long been hard to determine, but finally defined in the ICC Statute as the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

• Some scholars have adopted broader definitions of the notion of international crimes, which extends to offences proscribed in international suppression conventions, such as piracy, torture, terrorism, and several forms of transnational trafficking. A novel crime of “ecocide” has recently gained significant traction in scholarship, activism and politics.

Further Readings

• Ambos K, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is there a Crime of Terrorism under International Law?’ (2011) 24 LJIL 655
• Bassiouni M C, Crimes against Humanity: Historical Evolution and Contemporary Application (CUP 2011)
• Bassiouni M C, International Criminal Law Conventions and their Penal Provisions (Transnational Publishers 1997)
• Boister N, An Introduction to Transnational Criminal Law (2nd ed, OUP 2018)
• Cassese A, ‘The Multifaceted Criminal Notion of Terrorism in International Law’ (2006) 4 JICJ 933
• Cassese A et al, Cassese´s International Criminal Law (3rd ed, OUP 2013)
• Cryer R, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (CUP 2005)
• Fabijanić Gagro S, ‘Mental and Material Elements of Genocide‘ (2021) 11(1) TLQ 1
• Fiskatoris T, ‘The Global South and the Drafting of the Subject-Matter Jurisdiction of the ICC’ in Jeßberger F, Steinl L, Mehta K (eds), International Criminal Law: A Counter-Hegemonic Project? (TMC Asser Press 2023)
• Gallagher A, The International Law of Human Trafficking (CUP 2010)
• Heller K J, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ (2007) 18(3) EJIL 477
• Jalloh C C; ‘A Classification of the Crimes in the Malabo Protocol’ in Jalloh C C, Clarke K M, Nmehielle V O (eds), The African Court of Justice and Human and Peoples’ Rights in Context (CUP 2019) 225-256
• Klamberg M (ed), Commentary on the Law of the International Criminal Court (TOAEP 2017)
• Kreβ C, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 LJIL 855
• Kreß C, ‘The Crime of Genocide under International Law’ (2006) 6 ICLR 461
• Kreß C and Barriga S (eds), The Crime of Aggression: A Commentary (CUP 2017)
• Kreß C and von Holtzendorff L, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 JICJ 117
• Lingaas C, 'Defining the Protected Groups of Genocide through the Case Law of International Courts' (2015) ICD Brief 18, 12/2015
• Novic E, The Concept of Cultural Genocide: An International Law Perspective (OUP 2016)
• Schabas W, Genocide in International Law: The Crime of Crimes (2^nd ed, CUP 2009)
• Stahn C, A Critical Introduction to International Criminal Law (CUP 2018)