An essay (granted at high 2:1 mark) on whether there exists in international criminal law a hierarchy of offences, and whether there should be such a hierarchy. All references included
International criminal law is a relatively new and rapidly evolving body of legislation and
case law. As a result of this, many questions are yet to be answered as to the nature of
the crimes which fall within its jurisdiction.
We will now however consider two of these issues, namely 1) to what extent there is a
hierarchy of crimes in international criminal law, and 2) whether such a hierarchy should
exist.
In considering this it will be necessary to examine both the creation and application of
international criminal law as a whole, as well as the creation and application of individual
offences that fall under the title. This will not only allow us to determine whether there
was ever an intention that some crimes should be seen to be more serious than others,
but whether there is actual evidence that some offences are more serious than others,
and whether they should be seen so.
1. To what extent is there a hierarchy of crimes in international criminal law?
a) An academic viewpoint
It has been suggested that ‘The weight of judicial opinion does not deem genocide to be
categorically more serious than war crimes or crimes against humanity’ 1. Whilst it is true
that no such opinion, case or statute expressly creates or states that there is a hierarchy
of crime under international criminal law, I believe that this is the only argument in
favour of that side of this view. It is my belief that whilst this is the case, the very nature
of the offences, and of international criminal law in general, has created a clear hierarchy
evidently present today. I will now set out to prove why.
b) The foundation of international criminal law
Before we delve deeper into the actual content of offences it is possible to argue that the
very nature of international criminal law inherently calls for a hierarchy of crimes. This is
1 P.Akhavan Reducing Genocide to Law (Cambridge University Press 2012) page 59
,because such a hierarchy can be seen in the very framework of Treaties establishing the
law in this area. The 1998 Rome Statute, arguably one of the biggest influences in
international criminal law (and source of the International Criminal Court (ICC)), is a
prime example of this. The preamble to the Statute makes clear that the state parties to
the Statute affirm ‘that the most serious crimes of concern to the international
community as a whole must not go unpunished’2. The Statute later establishes that ‘The
jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole’3.
This immediately suggests that a hierarchy of crimes within International Criminal Law
exists. This is because the Rome Statute has set a minimum threshold for what
constitutes an international crime. Offences will only fall under the jurisdiction of the
Court when they are deemed to be sufficiently serious. As a result the Statute implies
that the nature and effect of the crime is an important factor when considering
International Criminal Law. Seemingly we can therefore assume that the offences then
listed in Article 5(1) of the statute (such as genocide and crimes against humanity) have
been evaluated to be so serious that they fall within the jurisdiction of the ICC. It is
unlikely that each of these offences were held to have the same consequences as one
another. Therefore it would seem sensible to conclude that some of these crimes are seen
in the eyes of the international community to be more heinous than others.
It is possible however to dispute this view. It can be argued that the crimes of concern to
the international community is less about the consequences of them and more a matter
of whether national justice systems can act effectively to address them. It can be
suggested that the offence of terrorism is a prime example of this because it ‘involve[s]
hundreds of deaths, in appalling circumstances, and… feature[s] in the headlines of the
world’s newspapers. But [it is] of little concern to international justice because the crime
2 Rome Statute of the International Criminal Court (1998) – Preamble
3 Ibid. Article 5(1)
, is adequately prosecuted by the domestic courts’4. If a hierarchy was present in
international criminal law terrorism would therefore be included as an offence under the
Rome Statute, because the consequences of it are aligned to that of war crimes and
crimes against humanity which are present.
However the fact that ‘acts of terrorism are prohibited by international humanitarian law
and may constitute a war crime’5 would appear to contradict this. Although the offence of
terrorism is not itself a crime under international criminal law, it is provided for in the
Geneva Convention that ‘Acts or threats of violence the primary purpose of which is to
spread terror among the civilian population are prohibited’ 6. This would suggest that
terrorism when sufficiently serious, can be prosecuted under international criminal law as
a war crime. This further supports the idea that the very nature of international criminal
law inherently calls for a hierarchy of crimes.
c) ‘The crime of crimes’ – Is there a most serious offence?
Although there is a presumption that all crimes under the Rome Statute are serious, it
does not expressly provide for a hierarchy of offences. However, there is a clear case to
argue that some crimes are more serious than others7. Genocide has long been described
as ‘the ultimate crime’ which ‘should be placed at the apex of the pyramid of
international crimes above crimes against humanity and war crime[s]’8. We shall now
examine whether this is truly the case.
4 William A. Schabas, An Introduction to the International Criminal Court, 3rd Edition (Cambridge University
Press 2007) page 83
5 R.Creyer et al An Introduction to International Criminal Law and Procedure 3rd Edition (Cambridge University
Press 2014)
6 Additional Protocol I (1977) of the Geneva Convention (1949) Article 51(2)
7 W.A.Schabas The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press
2010) pages 40-41
8 A.Brannigan Beyond the Banality of Evil (Oxford University Press 2013) page 25
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