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The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.

This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.

While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.

This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.

This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.

Since this entire study provides evidence of a growing convergence of human rights and international criminal law, this last chapter presents an evaluation of that new trend in international law. It encapsulates the insight gained from the preceding analysis and considers the role human rights law should play in the emerging concept of global justice in order to guide the future. With respect to victims rights, it cautions against the assumption of a right to justice and summarizes the counter-arguments. Though advocating a prima facie obligation to prosecute serious human rights violations, the chapter militates against an absolute prohibition of amnesties and advocates a balancing approach. The chapter concludes with a caveat not to use human rights law to extend the scope of international criminal law without a firm legal basis.

This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.

The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.

This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.

This chapter looks at the development of aiding and abetting by omission as a form of individual criminal responsibility by the ad hoc Tribunals. In a critical analysis of the existing case law, it argues that there is no basis for this form of individual liability in customary international law. It identifies specific instances in which the reasoning of both the Yugoslav and Rwanda Tribunals has been left wanting on this question. Particularly concerning in this regard is the inconsistent methodology that has been utilized in the identification of customary international norms. Taking the recent challenge to the customary foundations of omission liability in the Karadžić case, the chapter concludes that this form of liability has not been coherently and convincingly established in international law.

This introductory chapter sets the foundations for the ensuing discussion of the role of judicial creativity in the development of core aspects of international criminal law as evidenced in the jurisprudence of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. It is clear that at the time of the creation of the Tribunals in the early 1990s international criminal law was substantively and procedurally rudimentary. However, some fifteen years later and as they move towards the completion of their mandates, it is an appropriate time to examine their jurisprudential legacy. This undoubtedly substantial legacy is owed in no small measure to the creative enterprises of their respective benches. The chapter outlines the various broad areas in which judicial creativity is especially evident and provides an overview of the subsequent chapters in the collection.

This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.

Codifiers in international criminal law have not been at ease with the subject of defences. They have focused on eliminating defences rather than on defining them. This chapter discusses defences that are listed in Article 31 of the International Criminal Court Statute and all have a different nature and pedigree, which accounts for a differing format in analyzing them. It looks at the text, including the drafting history, and relevant international jurisprudence. As with the modes of liability dealt with in Chapter 6, the concepts discussed have a national pedigree and are analyzed by adding a comparative perspective. Especially in an area where international practice is scant, national criminal law has an important role to play, if only for the sake of understanding the scope and content of the various concepts.

This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.