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The Concept of Universal Crimes in International Law Terje Einarsen

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The Concept of Universal Crimes in International Law Terje Einarsen The Concept of Universal Crimes in International Law Terje Einarsen The Concept of Universal Crimes in International Law Terje Einarsen 2012 Torkel Opsahl Academic EPublisher Oslo This and other books in the FICHL Publication Series may be openly accessed and downloaded through the Forum website (www.fichl.org). Printed copies may be ordered through online distributors such as www.amazon.co.uk. This book was first published on 15 August 2012. © Torkel Opsahl Academic EPublisher, 2012 All rights are reserved. You may read, print or download this book or any part of it from www.fichl.org for personal use, but you may not in any way charge for its use by others, directly or by reproducing it, storing it in a retrieval system, transmitting it, or utilizing it in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, without the prior permission in writing of the copyright holder. Enquiries concerning reproduction outside the scope of the above should be sent to the copyright holder. You must not circulate this book in any other cover and you must impose the same condition on any acquirer. You must not make this book or any part of it available on the Internet by any other URL than that on www.fichl.org. ISBN 978-82-93081-33-3 To the memory of my father Einar, who died in December 2011, and to my mother Mary. Thanks for imprinting a sense of justice. We the Peoples of the United Nations Determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained Charter of the United Nations (1945) The definition of a crime cannot, however, be made to depend on which nation commits the act. I am not willing to charge as a crime against a German official acts which would not be crimes if committed by officials of the United States. Justice Robert H. Jackson (1945) Chief Prosecutor at Nuremberg ACKNOWLEDGEMENTS This book is the product of a research project meant to address certain is- sues of complicity in international criminal law. It started after a street en- counter in 2007 with Dean Asbjørn Strandbakken of the Law Faculty, University of Bergen (UiB), who encouraged me to apply for a postdoc- toral position. I was at the time enjoying my professional life as a judge at the Gulating High Court for the western parts of Norway. I was generous- ly granted leave for three and a half years by the chief justice of Gulating, Bjørn Solbakken, and by the Norwegian Court Administration, to under- take the project. The research formed part of a larger project at the Law Faculty (UiB), financed by the Research Council of Norway and led by Professor Erling Johannes Husabø. I am grateful to several people at the Law Faculty for their continuous support during the research period. I am also happy to have had the chance to visit the international courts in The Hague and to take a most interesting trip to Arusha, Tanzania, to visit the Rwanda tribunal. At the tribunal I was well taken care of by Judge Erik Møse and his staff, as well as by acting chief of prosecutions Richard Ka- regyesa, Iain Morley, and several of their colleagues. I am deeply indebted to those who at different stages read and criti- cally commented on various parts of the manuscript. They include Dr. Jo- seph Rikhof, senior counsel at the Crimes against Humanity and War Crimes Section of the Canadian Department of Justice and professor of international criminal law at the University of Ottawa; Professor Erling Johannes Husabø of UiB; Dr. Elin Skaar, senior researcher at the Chr. Michelsen Institute in Bergen; and Dr. William Minter, Washington, DC. Judge Elizabeth Baumann at the Stavanger District Court and PhD candi- date at UiB, and Kjetil Skjerve, PhD candidate at UiB, also offered help- ful comments on draft chapters. At the early stages of this research I was capably and kindly assisted by law student Stein Are Mikkelsen in col- lecting and organising relevant sources. During the summer of 2011, I was fortunate to enjoy enthusiastic and competent research assistance from lawyer Catalina Vallejo. I would like to warmly thank Cathy Sunshine for her invaluable editorial expertise, intelligence, sense of humour, and professional care for the book. Many thanks also to Professor Morten Bergsmo, Editor-in- i Chief of Torkel Opsahl Academic Epublisher, for believing in the project and being willing to publish this book. Alf Butenschøn Skre, Senior Edi- torial Assistant, provided kind and competent support at the final stages of the publication process. In addition, I would like to thank the (to me un- known) peer reviewers for their comments. Last but not least, my warmest thanks go to those who have accom- panied me throughout this long book project, especially to my dear Elin for enduring my many late nights with the manuscript, and to my parents Einar and Mary for always being supportive. Terje Einarsen Bergen, February 2012 ii PREFACE Despite the ambiguities of international law in general and international criminal law in particular, serious crimes committed, organised, or toler- ated by representatives of different kinds of power structures are now of concern to the world community. These crimes may occur in the context of war or form part of a larger pattern of aggressive behaviour by power- ful actors within a society. They are often directly linked to abuse of polit- ical or military systems or to an absence of effective state institutions. Such ‘international crimes’, which might also be referred to as ‘universal crimes’ because of their inherent gravity and violation of universal values and interests, are also attacks on the rule of law. They typically constitute transgressions of various social and moral norms, including human rights. Human rights are universal in the sense that every person has and should enjoy them in a modern society. Similarly, no person should be exposed to universal crimes. However, these aspirations do not always correspond to legally binding rights and obligations or to mechanisms of enforcement under current international law. We are still living in an age of uncertainty regarding which specific types of crimes are punishable directly under in- ternational law and might also be prosecuted on a regular basis before in- ternational courts. This book is the first in a four-part series entitled “Rethinking the Essentials of International Criminal Law and Transitional Justice”. It con- centrates on the concept of universal crimes and the general issues in- volved in classifying certain offences. Other issues, such as the scope of liability for different kinds of participation in universal crimes and the di- rect legal consequences of these crimes, are not discussed in detail in this book, but are reserved for later volumes. The forthcoming second volume focuses on punishable participation in universal crimes. The third and fourth volumes shift attention to the legal consequences of universal crimes: book three focuses on accountability and jurisdiction as important aspects of universal crimes, while the fourth and final book in the series is about fair trial in universal crime cases. The basic research ideas underly- ing this comprehensive universal crimes project have been developed by the author of this book. The other books are to be published in coopera- tion with other analysts; the next volume will be co-authored with Dr. Jo- seph Rikhof. iii A first research aim of this book is to explore the complex issue of which crimes are covered by international law according to theoretical and historical perspectives, academic debates, the works of the Interna- tional Law Commission, and legal practice in international tribunals. The second aim is to examine different ways of classifying international crimes and then to develop a set of necessary and sufficient conditions that should be used when defining and classifying punishable crimes un- der international law. Using these criteria as a framework for identifica- tion and evaluation of relevant crimes, the book’s third aim is to compile a comprehensive list of crimes under international law lex lata, followed by crimes lex ferenda that fulfil some, but not all, of the criteria and which might later be elevated to the sphere of lex lata. The enumerative crime definition in this book includes 150 crime types. The final aim is to examine whether it may be useful to gradually replace the concept of in- ternational crimes with the concept of universal crimes in further academ- ic analysis and legal debates. The principal purpose of this study is thus to clarify and specify the concept of universal crimes with a view to providing a common frame- work for understanding important features of the complex field of law concerned with the most serious crimes. Central issues to be explored in- clude the following: What are the relevant crimes that may give rise to di- rect criminal liability under international law? Are they currently limited to certain core international crimes? Why should certain crimes be includ- ed whereas other serious offences should not? Should specific legal bases be considered more compelling than others for selection of crimes? This work is addressed to all with an interest in international crimi- nal law and related disciplines like human rights, humanitarian law, and transitional justice. Hopefully it will prove to be a modest contribution to a more coherent and practical understanding of international criminal law.
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