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A Critical Introduction to International Criminal Law Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F A CRITICAL INTRODUCTION TO INTERNATIONAL CRIMINAL LAW International criminal law has witnessed a rapid rise since the end of the Cold War. The United Nations refers to the birth of a new ‘age of accountability’, but certain historical objections, such as selectivity or victor’s justice, have never fully gone away, and many of the justice dimensions of international criminal law remain unexplored. Various critiques have emerged in sociolegal scholarship or globalization discourse, revealing that there is a stark discrepancy between reality and expectation. Linking discussion of legal theories, case law and practice to scholarship and opinion, A Critical Introduction to International Criminal Law explores these critiques through five main themes at the heart of contemporary dilemmas: • The shifting contours of criminality and international crimes • The tension between individual and collective responsibility • The challenges of domestic, international, hybrid and regional justice institutions • The foundations of justice procedures • Approaches towards punishment and reparation. The book is suitable for students, academics and professionals from multiple fields wishing to understand contemporary theories, practices and critiques of international criminal law. carsten stahn is a professor of international criminal law and global justice at the Leiden Law School, and is a former legal officer at the International Criminal Court. He is the project leader of Netherlands Organization for Scientific Research (NWO)- funded grants on jus post bellum and post-conflict justice and the winner of the Ciardi Prize of the International Society for Military Law and the Law of War for his work on international territorial administration. Professor Stahn is editor of the Leiden Journal of International Law and the Criminal Law Forum and correspondent of the Netherlands International Law Review. He has taught international criminal law in Geneva and Galway, and has published eleven books and more than seventy articles/ essays in different fields of international law and international justice. This title is also available as Open Access on Cambridge Core at https://doi.org/ 9781108399906 Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F A CRITICAL INTRODUCTION TO INTERNATIONAL CRIMINAL LAW CARSTEN STAHN Leiden University Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108423205 DOI: 10.1017/9781108399906 © Carsten Stahn 2019 This work is in copyright. It is subject to statutory exceptions and to the provisions of relevant licensing agreements; with the exception of the Creative Commons version the link for which is provided below, no reproduction of any part of this work may take place without the written permission of Cambridge University Press. An online version of this work is published at doi.org/9781108399906 under a Creative Commons Open Access license CC-BY-NC-ND 4.0 which permits re-use, distribution and reproduction in any medium for non-commercial purposes providing appropriate credit to the original work is given. You may not distribute derivative works without permission. To view a copy of this license, visit https://creativecommons.org/licenses/by-nc-nd/4.0 All versions of this work may contain content reproduced under license from third parties. Permission to reproduce this third-party content must be obtained from these third-parties directly. When citing this work, please include a reference to the DOI 10.1017/9781108399906 First published 2019 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Stahn, Carsten, 1971– author. Title: A critical introduction to international criminal law / Carsten Stahn, Universiteit Leiden. Description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2019. Identifiers: LCCN 2018027120 | ISBN 9781108423205 (hardback) | ISBN 9781108436397 (pbk.) Subjects: LCSH: International criminal law. | LCGFT: Textbooks. Classification: LCC KZ7000 .S73 2019 | DDC 345–dc23 LC record available at https://lccn.loc.gov/2018027120 ISBN 978-1-108-42320-5 Hardback ISBN 978-1-108-43639-7 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F Contents Preface page xiii List of Abbreviations xvi Introduction 1 I.1 Content 5 I.2 Foundations 7 1 International Crimes 15 1.1 Background 16 1.1.1 Theories of International Crimes 18 1.1.1.1 Evil Nature of the Offence (Malum in se) 19 1.1.1.2 Prohibited Evil (Malum Prohibitum) 20 1.1.2 Structure of an International Crime 22 1.2 First Generation Crimes 23 1.2.1 Piracy 23 1.2.2 Slavery and Slavery-Like Practices 25 1.2.3 Terrorism 29 1.3 Core Crimes 32 1.3.1 Genocide 32 1.3.1.1 Origin 33 1.3.1.2 Nature of the Crime 34 1.3.1.3 Protected Groups 35 1.3.1.4 Specific Intent 37 1.3.1.4.1 Objective vs. Subjective Interpretation 38 1.3.1.4.2 Localized Genocide 39 1.3.1.4.3 Inferred Intent 41 1.3.1.4.4 The Knowledge-Based Approach 43 1.3.1.4.5 Intent and Forced Transfer 44 1.3.1.5 ‘Cultural’ Genocide 46 1.3.1.6 Words as Bullets 47 1.3.1.7 Paradoxes of the ‘New Law on Genocide’ 50 v Downloaded from https://www.cambridge.org/core. IP address: 170.106.40.219, on 28 Sep 2021 at 17:55:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://www.cambridge.org/core/product/EFEDBED0B84359DFA281A9079047846F vi Contents 1.3.2 Crimes against Humanity 52 1.3.2.1 Origin 52 1.3.2.2 Normative Theories 53 1.3.2.2.1 Attack on Humanity and Humanness 53 1.3.2.2.2 Threat to International Peace and Security 54 1.3.2.2.3 Abuse of Power through State or Organizational Policy 54 1.3.2.3 Context 57 1.3.2.4 Crime Typologies and Dynamic Interpretation 58 1.3.2.4.1 Modern-Day Slavery and Human Trafficking 59 1.3.2.4.2 Torture 61 1.3.2.4.3 Crimes of Sexual and Gender-Based Violence 62 1.3.2.4.4 Enforced Disappearances 65 1.3.2.4.5 Apartheid 68 1.3.2.4.6 Persecution 70 1.3.2.4.7 Other Inhumane Acts 72 1.3.2.4.8 Merits and Discontents 73 1.3.3 War Crimes 73 1.3.3.1 Origin 74 1.3.3.2 Definition 75 1.3.3.3 Types of Conflicts 76 1.3.3.4 Actors and Threshold 79 1.3.3.5 Nexus to Armed Conflict 81 1.3.3.6 Types of War Crimes 81 1.3.3.6.1 Protection of Non-Combatants 81 1.3.3.6.2 Principle of Distinction 83 1.3.3.6.3 Principle of Proportionality 87 1.3.3.6.4 Restriction of Means and Methods of Warfare 89 1.3.3.6.5 Mental Elements 93 1.3.3.6.6 Merits and Discontents 94 1.3.4 The Crime of Aggression 95 1.3.4.1 Origin 97 1.3.4.2 Jurisdictional Dilemmas 98 1.3.4.3 Definitional Dilemmas 100 1.3.4.3.1 State Act of Aggression 100 1.3.4.3.2 Individual Act 102 1.3.4.4 Implications 102 Downloaded from https://www.cambridge.org/core. 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