International Criminal Law Third edition Providing an introduction to and detailed examination of substantive, enforcement and procedural aspects of international criminal law, this book’s examination of international and transnational crimes under treaty and customary law has been fully updated and revised. The book explores the discipline of international criminal law from the perspec- tive of domestic tribunals engaged with transnational/international offences, cross- border cooperation in criminal matters with particular emphasis on recent EU initiatives, as well as the practice of the Security Council-based tribunals for Yugo- slavia and Rwanda, the International Criminal Court and other hybrid tribunals, such as those for Cambodia, Sierra Leone, Lockerbie and truth commissions. The authors analyse in detail substantive crimes, such as terrorism, offences against the person, criminal law of the sea, jurisdiction and immunities amongst a variety of other topics. In order to reflect developments in the field of international and transnational criminal law, the third edition contains new chapters on: (cid:127) Various forms of liability and participation in international crime (cid:127) War crimes (cid:127) Crimes against humani ty (cid:127) Genocide (cid:127) Abduction and extraordinary rendition. Topics introduced in the first and second editions have been expanded upon, includ- ing enforced disappearances, transnational criminal offences, police co-operation and mutual legal assistance mechanisms. This book continues to draw together a wide variety of different topics that are not usually found under the same cover to provide a book that gives both students and practitioners a sound theoretical and practical understanding of international and transnational criminal law. It is an ideal text for undergraduate and postgraduate students of law or international relations, practitioners and those interested in gaining an insight into international and transnational criminal law. Ilias Bantekas is Professor of International Law and Deputy Head of the Law School at Brunel University. He has published widely in leading international journals. Books authored or edited by him include: International and European Financial Criminal Law (Butterworths, 2006) and Principles of Direct and Superior Responsibility in International Humanitarian Law (Manchester University Press, 2002). Susan Nash is Professor of Law at the University of Westminster and Head of Department of Postgraduate Legal Studies. She is a barrister and a door tenant in Tooks Chambers. Her research interests include criminal procedure and evidence, human rights and mutual legal assistance. She has published widely in both national and international journals and is the co-author of several books including The Cartel Offence (Hart, 2004) and Essential Human Rights Cases (Jordans, 2002). International Criminal Law Third edition Ilias Bantekas and Susan Nash First published 2007 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2009. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business © 2001, 2007 Ilias Bantekas and Susan Nash Previous editions published by Cavendish Publishing Limited First edition 2001 Second edition 2003 All rights reserved. No pa rt of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN 0-203-86792-0 Master e-book ISBN ISBN10: 0–415–41845–3 ISBN13: 978–0–415–41845–4 Contents – Summary 1 Theory of International Criminal Law 1 2 Principles of Liability and Participation in International Criminal Law 21 3 Defences in International Criminal Law 51 4 State Jurisdiction and Immunities 71 5 War Crimes and Grave Breaches 113 6 Crimes Against Humanity 125 7 Genocide 139 8 Offences Against th e Person 151 9 International Criminal Law of the Sea 173 10 Terrorism 195 11 Transnational Offences 1 233 12 Transnational Offences 2 265 13 Extradition 293 14 Abduction 343 15 Mutual Legal Assistance 357 vi Contents – Summary 16 Mutual Legal Assistance: National Perspectives 387 17 International Police Co-operation 407 18 Evidence before the Ad Hoc Tribunals 437 19 Nuremberg, Tokyo and the Birth of Modern International Criminal Law 495 20 The International Criminal Tribunals for Yugoslavia and Rwanda 513 21 The Permanent International Criminal Court 535 22 Internationalised Domestic Criminal Tribunals 557 Contents Preface xiii Table of cases xv Table of legislation xxvii 1 Theory of International Criminal Law 1 1.1 Introduction 1 1.2 Sources of International Law and Individual Legal Personality 2 1.3 The International Criminalisation Process 6 1.4 Enforcement of International Criminal Law 10 1.5 State ‘Criminality’ 15 1.6 International Criminal Law and Human Rights 18 2 Principles of Liability and Participation in International Criminal Law 21 2.1 Aiding and Abetting 21 2.2 Ordering 24 2.3 Planning/Preparation 26 2.4 Instigation 28 2.5 Joint Criminal Enterprise 29 2.6 Conspiracy 34 2.7 Commission Through Another Person 36 2.8 Command/Superior Responsibility 37 2.9 International Corporate Criminal Liability 47 3 Defences in International Criminal Law 51 3.1 Theoretical Underpinnings of Criminal Defences 51 3.2 Superior Orders 56 viii Contents 3.3 Duress and Necessity 61 3.4 Self-defence 65 3.5 Intoxication 67 3.6 Mistake of Fact or Mistake of Law 68 3.7 Mental Incapacity 69 4 State Jurisdiction and Immunities 71 4.1 Criminal Jurisdiction: An Introduction 71 4.2 Territorial Jurisdiction 73 4.3 The Active Personality Principle 79 4.4 The Passive Personality Principle 81 4.5 The Protective Principle 83 4.6 Universal Jurisdiction 85 4.7 Aut Dedere Aut Judicare Principle 91 4.8 Jurisdiction with Respect to Crimes against Civil Aviation 92 4.9 International Criminal Jurisdiction 93 4.10 Immunities from Criminal Jurisdiction 96 4.11 Immunity under Domestic Law and Jus Cogens Norms 103 4.12 Foreign and Multinational Armed Forces Abroad 106 4.13 Diplomatic and Consular Immunities 108 4.14 Immunity from International Criminal Jurisdiction 110 5 War Crimes and Grave Breaches 113 5.1 Grave Breaches of the 1949 Geneva Conventions 113 5.2 Classification of Armed Conflicts 115 5.3 Types of International Armed Conflict War Crimes 117 5.4 Violations of the Laws or Customs of War in Internal Conflicts 120 5.5 Specific Internal Armed Conflict War Crimes 123 6 Crimes Against Humanity 125 6.1 Origins of the Concept 125 6.2 The Fundamental Elements of the Offence 127 6.3 Crimes Against Humanity in the ICC Statute 134 7 Genocide 139 7.1 Historical Origins and Legal Status 139 7.2 Destruction of the Group ‘in Whole or in Part’ 140 Contents ix 7.3 The Specific Intent (Dolus Specialis) Required for Genocide 143 7.4 Membership of the Targeted Group 145 8 Offences Against the Person 151 8.1 Introduction 151 8.2 Slavery and Related Practices 151 8.3 Torture as a Crime under International Law 161 8.4 Apartheid 166 8.5 Enforced or Involuntary Disappearances 168 9 International Criminal Law of the Sea 173 9.1 Introduction: The Law of the Sea 173 9.2 Piracy Jure Gentium 174 9.3 Offences Against Submarine Cables and Pipelines 185 9.4 Unauthorised Broadcasting from the High Seas 188 9.5 The Right of Hot Pursuit 189 10 Terrorism 195 10.1 Introduction 195 10.2 The Thematic Approach in International Law 197 10.3 The Specialised Anti-Terrorist Conventions 199 10.4 State-sponsored Terrorism 218 10.5 Terrorism and National Liberation Movements 222 10.6 Organised Crime and its Relation to Terrorism 225 10.7 Terrorist Acts as Political Offences 227 10.8 Terrorism and Human Rights 229 11 Transnational Offences 233 11.1 Transnational Organised Crime 233 11.2 Drug Trafficking 239 11.3 Money Laundering 247 12 Other Transnational Offences 265 12.1 Cybercrime 265 12.2 Bribery of Foreign Public Officials 280 12.3 International Postal Offences 285 12.4 Circulation and Trafficking in Obscene Publications 288