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Summary book Cryer et al. (2019): An Introduction to International Criminal Law and Procedure
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SummaryCryer, R., Robinson, D., & Vasiliev, S. (2019). An Introduction to International Criminal Law and
Procedure (4th ed.)
Part I: Introduction
Chapter 1: Introduction: What is International Criminal Law?
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I. Meaning of ICL
- Tension: ICL is paradigmatically concerned with prohibitions addressed to individuals,
violations of which are subject to penal sanction by a state → in tension.
- History ICL: ICL is a relatively new body of law, which is not yet uniform, nor are its courts
global in their authority. In 1950, no existing body of ICL for individuals. But it developed
further.
- Individual focus: Except for the crime of aggression, with its focus on inter-state conflict, the
concern of ICL is on the protection of individuals.
Crimes within the jurisdiction of an International Court or Tribunal
- ICL in this book are the four ‘core’ crimes: genocide, CAH, war crimes, crime of aggression.
However, also principles and procedures of governing the international investigation and
prosecution of these crimes.
- Other crimes: Slavery, piracy etc. not included, because of the obligation to criminalize them
in domestic law. Terrorism only in the Special Tribunal for Lebanon.
II. Other concepts of ICL
a. Transnational Criminal Law
- History: Firstly, responsibility of State’s domestic criminal law to deal with
transnational crimes. Now, while IL is the source of a part of this group of rules, the
source of criminal prohibitions on individuals is national law.
- Definition: Transnational criminal law includes the rules of national jurisdiction
where there is some cross-jurisdictional aspect of crime. Covers methods of State
cooperation, and has developed in treaties. These treaties include mutual legal
assistance, extradition, criminalization of crimes.
b. ICL as a set of rules to protect the values of the international order: IC considered to be
those of which are a concern to the international community as a whole, or acts that violate a
fundamental interest protected by IL. The ICC statute recognizes such IC that ‘threaten the
peace, security and well-being of the world.’.
- Limitation: Risk in defining ICL in this manner, as it implies a coherence in the
international criminalization process which doesn’t exist.
c. Involvement of a state: State involvement in commission of ICL.
- Limitation: Subject-matter of ICL deals with liability of individuals, whether or not
they are agents of the states. Only relevant when crime of aggression.
d. Crimes created by IL: Without requiring intervention of domestic law. IL poses criminal
responsibility directly on individuals.
, - Sidenote: Sui generis penal system of ICCT described as ‘supranational criminal
law’. However, misleading because it is not reserved for treaty-based or customary
IL.
III. Sources of ICL
ICL a subset of IL, its sources are enumerated in Art. 38(1)(a)-(d) of the Statute of ICJ. (1) Treaty law,
(2) customary law (3) general principles of law and, and subsidiary means for the determination of
law. ICC contains its own set of sources for the ICC to apply, which are analogous to ICJ Statute.
1. Treaties: Hague Regulations (1907), GC (1949) and AP, and Genocide Convention (1948).
The Statute of the ICC itself is a treaty, and ICTY and ICTR is set up by SC Resolutions.
These were a source of inspiration for other ICL instruments. They create individual criminal
responsibility.
- Suppression conventions = Require States to criminalize conduct such as drug
trafficking etc., not regarded as creating individual criminal responsibility.
- Criminal liability: Practice of ICTY accepted that treaties may suffice to found
criminal liability. However, ICTR did not and is most likely the basis for ICC’s
jurisdiction.
2. Customary International Law = Body of law which derives from the practice of States
accompanied by opinio juris (= the belief what is done is required by law).
- Limitation: Unwritten law is difficult to ascertain its content. May be too vague to for
example to find criminal liability → criticism ICTY for using customary law in an
innovative fashion.
3. General principles of law and subsidiary means of determining the law: Domestic law is
a major material source of ICL.
- ICTY and ICTR: ICTY resorted to general principles of law for sources and
conducted a system of precedents for dealing with its own jurisprudence. Both ICTY
and ICTR resorted to national laws, and domestic legal systems for sources. Their
approach is reliant on the interpretation of their own documents, rather than on IL.
- ICC: ICC only resorts to general principles based on domestic legal systems, when
the first two categories of law do not suffice (however no stare decisis).
- Limitation: General principles are too general and acontextual. Can be affected by
local idiosyncrasies.
➔ Most important three sources! Following two are less important.
4. Writings of scholars:
- Limitations: Can lead to a skewed and subjective view of what the author ‘wants’ the
law to be. Take into account the nullum crimen sine lege principle.
5. Soft ICL: May have provided assistance in the interpretation of the hard norms and in the
interpretation of penitentiary aspects. However, no great influence due to to the nullum crimen
sine lege principle.
IV. ICL and other areas of law
1. ICL and Human Rights Law (HRL): ICC states that HRL is: ‘fundamental provision of the
ICC. The application and interpretation of law must be consistent with recognized HR.’
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