Economic globalization has facilitated transnational criminal and terrorist activity since the mid-nineteenth century, thus incentivizing closer international law enforcement cooperation. This chapter explores the history of that cooperation, the contours of which are shaped by the interaction of the institutions of sovereignty and the reality of power in the international system. It argues that international law enforcement cooperation to counter terrorism and transnational crime takes two independent, but interacting, forms: firstly, the use of existing international institutions to define behaviour as criminally deviant and to repress it, even against the will of some states; and, secondly, the formation of transgovernmental policing networks, and, more recently, collaborative multisectoral governance arrangements — both notionally apolitical, but inherently reflective of a shared understanding of criminally deviant behaviour. The interplay of these two approaches follows the contours defined by juridical sovereignty and power in the international system.
Sean D. Murphy
This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.
David J. Scheffer
This chapter considers the historical developments leading to the establishment of international criminal tribunals and why there exist unique provisions and capabilities, as well as some similar approaches to justice, among them. It highlights the key role of the United Nations (UN) in forging the new era of international criminal justice. The chapter is organized as follows. Part I examines the role of international organizations, particularly the UN, in the creation of the international and hybrid criminal tribunals since 1993 and each tribunal's legal character under international law. Part II compares and contrasts the structural composition of the tribunals, which is a critical base of knowledge about their history, how they function, and the law they enforce.
Elies van Sliedregt
This chapter is about international criminal law (ICL), a branch of general international law that deals with genocide, aggression, war crimes, and crimes against humanity. After presenting a definition of terms, it sketches the nature of ICL, with emphasis on the legal disciplines and legal cultures it encompasses. It also looks at the sources of ICL applied by international courts and tribunals, including judicial decisions, conventions, customs, and scholarly writings. Attention then turns to ad hoc courts and tribunals that conduct international prosecutions, including the International Criminal Court, along with the judicial lawmaking process under ICL and the legality principle. The chapter ends by discussing the modes of liability under ICL, the concept of superior responsibility, and defenses in ICL.
This chapter begins with discussions of the necessity of a counter-piracy legal regime; forms of contemporary piracy; and the applicable legal framework and its historical roots. It then analyzes the scope of counter-piracy enforcement powers and the legal regime governing the criminal prosecution of alleged pirates, which assumes a holistic approach that goes beyond the law of the sea.
Raphaël van Steenberghe
This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.
Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources
Steven R. Ratner
This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.